Judge Bruce G. Iwasaki, Case Number: 22STCV00792, Date: 2023-11-16 Tentative Ruling

Matter: Motion for Summary Judgment or, in the alternative, Summary Adjudication

Tentative Ruling: The motion for summary judgment is granted. The motion for summary adjudication is moot.

This is an employment discrimination case brought by Plaintiff Vivian Alecio against former employer, Jet Aviation Flight Service, Inc., and her former supervisor, Janelle Jaque (Jaque) (jointly, Jet Aviation). Plaintiff alleges her employment was terminated based on her sex, including conditions such as pregnancy related to her sex, and her pregnancy disability.

Jet Aviation moves for summary judgment, or in the alternative, summary adjudication. Plaintiff opposes the motion.

The operative Second Amended Complaint (SAC) alleges claims for: (1) sex discrimination (including pregnancy, pregnancy-related medical conditions, and reproductive health decision-making); (2) disability discrimination; (3) failure to prevent discrimination; (4) failure to accommodate; (5) failure to engage in the interactive process; (6) violation of the pregnancy disability leave provisions; (7) sexual harassment; and (8) wrongful termination.

The SAC was filed after Jet Aviation filed its motion for summary judgment; the SAC withdrew Plaintiff’s two causes of action for whistleblower retaliation under California Labor Code §§ 1102.5(b) and 6310, and her request for punitive damages. As such, Issue Nos. 10, 11, 13 and 14 in the motion for summary adjudication are moot.

The motion for summary judgment is granted. The motion for summary adjudication is moot.

Jet Aviation’s objections to Plaintiff’s evidence are ruled as follows: Nos. 1-3, 5 are sustained as to the content of the writings, Nos. 4, 6-45 are overruled. The evidentiary objections to deposition testimony of Jaque, Plaintiff, Riedel, Garcia, and Legenos’s are improper; the objections fail to quote the objectionable material as required under California Rules of Court 3.1354 and instead cite pages of deposition testimony (sometimes as many as ten pages of testimony).[1]

“The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)

“California uses the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination based on a theory of disparate treatment,” known as the McDonnell Douglas test. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004.) Under the McDonnell Douglas test, “the plaintiff [first] has the burden of establishing a prima facie case of discrimination. Second, if the plaintiff meets this burden, the employer must offer a legitimate nondiscriminatory reason for the adverse employment decision. Third, and finally, the plaintiff bears the burden of proving the employer's proffered reason pretextual.” (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.)

” ‘A defendant employer's motion for summary judgment slightly modifies the order of these [McDonnell Douglas] showings.’ “ (Scotch, supra, 173 Cal.App.4th at p. 1005.) To prevail on summary judgment, the defendant employer is “required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff's employment.” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247.)

Jet Aviation moves for summary judgment on the grounds that Plaintiff cannot establish all the elements of her claims and there are no triable issue of material fact in dispute.

In support of summary judgment and summary adjudication, Jet Aviation states that Plaintiff was terminated as result of poor performance – not for any discriminatory reason. Further, Jet Aviation asserts it was unaware of Plaintiff’s pregnancy until after the termination decision was made and Plaintiff was granted all time off for medical appointments prior to her termination.

Plaintiff began her employment as a customer service representative for Jet Aviation in April 2017. She transferred to a Logistics Specialist position in May 2018.

Plaintiff’s poor performance was documented as early as a 2017 Performance Evaluation where she was found lacking in the areas of Adaptability, Analysis, Build Relationships, Establish Trust, Results Oriented, and Strategic Thinking. (DSS 1.) In her 2019 Performance Evaluation, her then-supervisor, Bruce Vogt, stated that she needed to strive to be more of a team player with her logistics teammates. (DSS 2.)

On January 1, 2020, Jet Aviation’s employee health insurance began covering fertility treatments. (DSS 3 [Pl. Depo. 127:9-128:16].) In November 2019, HR Business Partner Kara Carrier (Carrier) held a meeting at the Burbank facility to go over the new insurance plan. (DSS 3.) After the meeting, Plaintiff asked for additional information about coverage for fertility treatments, and Carrier put her in contact with someone in Jet Aviation’s benefits department in Teterboro, New Jersey. (DSS 3.) Plaintiff further alleges she also had three conversations with Jaque about looking into Jet Aviation’s IVF coverage and whether Plaintiff could afford IVF treatments. (DSS 4.)[2]

On May 22, 2020, Jaque emailed Carrier to request her help managing Plaintiff. (DSS 10.) Jaque stated that she had received complaints from other team members about Plaintiff, and that Plaintiff had exhibited an attitude and been rude toward Jaque. (DSS 10.) On June 10, 2020, Plaintiff alleges she reached out to Jaque to make sure she was “covering all the bases.” (DSS 11.) Plaintiff subsequently reached out to Jaque’s supervisor, David Silkey, on June 12, 2020 to see if there was anything she could be doing better or that needed to “fixed.” (DSS 12.) After a meeting between Silkey, Jaque and Plaintiff on June 18, 2020, Jaque left feeling that Plaintiff would be unlikely to sustain long-term improvement in her performance. (DSS 13.)

On June 19, 2020, Carrier called Plaintiff and offered her the option to either resign and receive severance pay, or to be placed on a Performance Improvement Plan (PIP); Plaintiff chose the PIP. (DSS 14-15.) On June 26, 2020, Plaintiff was put on a PIP; none of the issues raised in the PIP were related to Plaintiff’s attendance. (DSS 15.)

Prior to being placed on the PIP, there was only one instance in which Plaintiff used sick time from January 2020 through June 26, 2020 for an IVF-related doctor’s appointment: two hours of sick time used on January 23, 2020. (UMF 20-21.)

Jaque felt Plaintiff’s performance sufficiently improved during the 30-day term of the PIP for Plaintiff’s employment to continue. (DSS 17.)

After Plaintiff had been placed on the PIP, Plaintiff began requesting more time off for medical appointments; all these requests were granted. (DSS 22.) In January 2021, Plaintiff told Jaque that she would be having doctor’s appointments every week for the rest of the year. (DSS 24.) Jaque emailed Plaintiff, “In future appointments is there any availability to schedule appointments after 14:30 so you would not have to use sick, vacation or floating holiday time? Did you want to change shifts times with Angie?” (DSS 24.) Plaintiff indicated she did not want to change shifts, and Jaque did not raise the issue again. (DSS 24.)

Plaintiff further alleges that she and her co-worker, Logistics Specialist Angie Riedel (Riedel) made complaints about aircraft exhaust fumes drifting into their office approximately ten times throughout Plaintiff’s employment as a Logistics Specialist, beginning immediately after Plaintiff started as a Logistics Specialist in 2018. (DSS 26.)[3] In March or April of 2021, the logistics office was moved out of Hangar 6 due to plans to repair the floors. (DSS 27.)[4]

On March 18, 2021, Jaque emailed Carrier and Silkey and requesting approval to terminate Plaintiff’s employment. (DSS 31.) Jaque received approval to terminate Plaintiff’s employment on March 30, 2021, and scheduled the termination for April 9, 2021. (DSS 33.) On April 8, 2021, Jet Aviation personnel sent Plaintiff’s final check via FedEx, to be delivered April 9, 2021. (DSS 34.)

On the afternoon of April 8, 2021, Plaintiff attended a doctor’s appointment. (DSS 35.) After the appointment, she called Carrier and informed her that she needed to take a leave of absence based on the advice of her doctor. (DSS 35.) That same day, Carrier provided Plaintiff the standard information about applying for a leave of absence. (DSS 36.)

The following morning, on April 9, 2021, Jaque and Carrier called Plaintiff to inform her that her employment was being terminated as of April 9, 2021. (DSS 37.) Upon being notified of her termination, Plaintiff told Carrier and Jaque that she was pregnant, and that her doctor’s appointments were related to getting pregnant. (DSS 37.) Carrier and Jaque both congratulated her and stated they had not known, and that the decision had been made prior to Plaintiff’s doctor indicating a need for leave of absence. (DSS 37.)

Jet Aviation’s evidence in its moving papers is sufficient to shift its burden on this motion for summary judgment.

To be liable on a claim of discriminatory discharge, the employer must have actual knowledge of the employee’s specific disability at the time of the adverse employment decision. Plaintiff must prove that knowledge. “An adverse employment decision cannot be made ‘because of’ a disability, when the disability is not known to the employer. Thus, in order to prove [a discrimination] claim, a plaintiff must prove the employer had knowledge of the employee's disability when the adverse employment decision was made. [Citations.] While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. ‘Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations....' [Citations.]” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1008 [quoting Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236–237].)

Jet Aviation argues that evidence the employer was aware of an employee’s pregnancy or disability is essential to establishing a prima facie case of discrimination, citing Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1145. In Trop, the Court of Appeal upheld summary judgment in favor of the employer on the basis that the plaintiff failed to raise a triable issue of fact that her employer knew she was pregnant before she was terminated, and thus failed to satisfy the first prong of the McDonnell Douglas test:

“When the pregnancy is apparent, or where plaintiff alleges that she has disclosed it to the employer, then a question of the employer's knowledge would likely preclude summary judgment. If the pregnancy is not apparent and the employee has not disclosed it to her employer, she must allege knowledge and present, as part of her prima facie case, evidence from which a rational jury could infer that the employer knew that she was pregnant.”

Here, Jet Aviation’s evidence demonstrates Jaque and the other decision-makers were unaware of Plaintiff’s pregnancy. Further, Jet Aviation’s evidence also documents Plaintiff’s performance issues that pre-date Plaintiff’s pregnancy and even Plaintiff’s fertility treatment. Jet Aviation’s evidence is sufficient to shift its burden to Plaintiff to demonstrate a triable issue of material fact in dispute. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097–1098; Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 357 [employer's facially creditable evidence of nondiscriminatory reasons for termination shifted burden to employee to rebut employer's showing].)

In opposition, Plaintiff argues that her evidence is sufficient to show that Jet Aviation knew or should have known she was pregnant and that the reason for her termination was mere pretext for a discriminatory motive.

Plaintiff’s opposition evidence fails to raise a triable issue of material fact with respect to Jet Aviation’s knowledge of her pregnancy or fertility treatments.

The evidence before this Court is largely undisputed. Although the separate statement purports to dispute facts, the “contradictory evidence” does not in fact dispute the underlying material fact.

Most importantly, there is no dispute that Plaintiff never affirmatively informed any decision-maker that she was pregnant or even that she was pursuing IVF until after the termination decision was made on March 30, 2021.

Three people participated in Defendants’ decision to terminate Plaintiff's employment: Jaque (Plaintiff's supervisor), Kara Carrier (HR representative in Burbank), and Jean Stefanski (HR representative in New Jersey). Plaintiff only submits evidence that she told Jaque and Carrier that she was pregnant on April 9, 2021. However, “[e]vidence that a decision maker learned of a plaintiff's disability after deciding to take adverse employment action is not probative of whether the decision maker was aware of the plaintiff's disability when he or she made the decision.” (Avila, supra, 165 Cal.App.4th at p. 1251.)

The undisputed evidence shows that Plaintiff never told Jaque or Carrier about her pregnancy at any time before March 30, 2021. (DSS 39; PSS 39.) It is also undisputed that Plaintiff never informed Jet Aviation or Jaque that she was actively pursuing fertility treatment; the evidence only shows that she was actively “considering” treatment in 2020. (PSS 5.)

Plaintiff relies on two categories of evidence to support her claim that Jet Aviation knew or should have known about her pregnancy and fertility treatments – her disclosure to other Jet Aviation employees and her doctors’ notes given to Jaque.

First, Plaintiff testified that a few days before her ultrasound, on or about February 23, 2021, she told Riedel that she was pregnant. (PAF 18.) Plaintiff testified that Riedel “used to tell everything to our supervisor, which was Janelle (Jaque). She [Riedel] used to discuss everything with her [Jaque). Well, we both used to discuss everything with her.” (PAF 19.) Plaintiff suggests this evidence demonstrate Jaque knowledge of Plaintiff’s pregnancy.

Plaintiff speculation that Jaque knew of Plaintiff’s pregnancy because of Jaque’s friendship with Riedel is entirely speculative. “[S]peculation is not evidence.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 289.) Thus, this evidence does not raise a triable issue of material fact. (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 415 [“‘[R]esponsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact.’ ”].)

Plaintiff also testified that, around the same time she told Riedel that she was pregnant, her boyfriend – Eduardo De Souza – notified Carl Legenos (Legenos) – De Souza's supervisor and Jet Aviation's Facilities Maintenance Manager since 2015 – that Plaintiff was pregnant. (PAF 20.) Shortly thereafter, Legenos congratulated Plaintiff during a 5-10 minute conversation in her office. (PAF 20.) During that conversation, Legenos told Plaintiff to do everything in her power to make sure that she kept the baby and to let him know if she needed help with anything. (PAF 20.)

This evidence is irrelevant; it in no way informs on the knowledge of the decision-makers. There is no evidence that Legenos told Jaque or Carrier about Plaintiff’s pregnancy or that he was somehow involved in Jet Aviation’s decision to terminate Plaitniff. Thus, this evidence does not raise a triable issue of material fact.

Plaintiff also argues that Jet Aviation and Jaque were aware of her pregnancy as a result of the content of Plaintiff’s doctor’s notes.

On January 18, 2021, Plaintiff notified Jaque by email that she was requesting vacation from February 1 to 5, 2021. Plaintiff attached a from Dr. Irene Woo of the California Center for Reproductive Health. The note stated in part: “To Whom It May Concern: Please be advised that Ms. Alecio is under my medical care. will need to be off of work from 2/1/21 and can return to work on February 8, 2021.” (PAF 17.) Plaintiff asserts the California Center for Reproductive Health letterhead contains a graphic logo of an egg being fertilized by a sperm. (PAF 17.)

Finally, on February 15 2021, Plaintiff notified Jaque via email that Plaintiff had an upcoming doctor’s appointment, and that she would have to have lab work done with regard to her doctor's appointment on Friday, February 26, 2021, and Plaintiff would have to pick up some specialty medication with regard to her doctor's appointment on Friday, February 26, 2021. (PAF 22, 24.) The appointment reminder letterhead contained the same logo of an egg being fertilized by a sperm. (PAF 22.)

Plaintiff argues that these notes with their reference to “Reproductive Health” and containing a logo of an egg being fertilized by a sperm are sufficient to show that Jet Aviation knew or should have known Plaintiff was pregnant.

However, as argued by Jet Aviation, imputing this knowledge on Jet Aviation under these facts is not supported by the law. In support, Jet Aviation cites Brundage v. Hahn (1997) 57 Cal.App.4th 228 and Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237.

In Brundage, the employee attempted to create a triable issue of fact by demonstrating that her employer knew she had taken a substantial amount of leave for medical appointments. The court, however, granted summary judgment to the employer, noting that none of the notes submitted in support of the employee’s leave requests identified any disability. (Id. at 237.) Thus, the court of appeal held they were insufficient to impute knowledge of any disability to the employer. (Ibid.)

Similarly, in Avila v. Continental Airlines, Inc., supra, 165 Cal.App.4th 1237, the court granted summary judgment on the grounds that an employer’s knowledge that a plaintiff had been ill or even hospitalized was insufficient to prove notice of a qualifying disability because there are many non-disability related reasons for seeking medical treatment. (Id.) Specifically, Avila, a food service employee who had worked for Continental Airlines for seven years, was terminated after he missed seven days of work within a 12-month period; four of the days were due to acute pancreatitis for which he was hospitalized. He claimed he should not have been charged with those absences because they constituted a disability under the FEHA. (Avila, supra, 165 Cal.App.4th at pp. 1248-1250.) When he returned from his hospital stay, Avila provided a Kaiser form showing that he had been hospitalized for three days, without explanation of the reason; he either gave it to, or left it on the desk of, a manager, and it was contained in his personnel file. (Id. at pp. 1244, fn. 3.)

Nevertheless, Avila held that Continental was entitled to summary judgment because the decision to terminate plaintiff's employment was made by other personnel who were unfamiliar with his medical excuses. “[T]o show that Continental acted with discriminatory intent, plaintiff was required to produce evidence that the Continental employees who decided to discharge him knew of his disability.” (Avila, supra, at p. 1248, 82 Cal.Rptr.3d 440.) “The Kaiser forms did not contain sufficient information to put Continental on notice that plaintiff suffered from a disability.” (Id. at p. 1249, fn omitted.) “From Continental's point of view, the fact that plaintiff was hospitalized for only three days and then returned to work days later without restrictions or accommodations is consistent with the conclusion that plaintiff did not suffer from a condition that qualifies as a disability.” (Ibid.) There is similarly a difference between Avila's supervisors knowing he was sick and knowing he was disabled. (Ibid.)

Here, the evidence shows that Plaintiff was receiving medical treatment but the doctors’ notes do not indicate that she was pregnant. In fact, the content of the doctors’ notes indicate only that she was under a doctor's care, with no diagnosis or condition indicated.

“[A]n employer ‘knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation.’ ” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887.) For example, in Faust, the Court of Appeal held that the employer was on notice of the plaintiff's disability when a chiropractor wrote to the employer and stated that the plaintiff was “ ‘unable to perform regular job duties’ ” and recommended that the plaintiff remain off work. (Ibid.)

Instead, Plaintiff here asks this Court to find that an inference can be made from the name of the office: California Center for Reproductive Health. However, medical treatment for reproductive care is not limited to pregnancy. Thus, under the circumstances, Jet Aviation cannot be imputed with the knowledge that Plaintiff was pregnant; that is, this conclusion is not the only reasonable interpretation of the known facts. (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167 [“While knowledge of the disability [or pregnancy] can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of the disability [or pregnancy] is the only reasonable interpretation of the known facts.”] [italics in original]; King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426 [“An employee cannot demand clairvoyance of his employer.”].)

Plaintiff’s evidence is insufficient to raise a triable issue of material fact as to Jet Aviation’s knowledge that Plaintiff was pregnant. Thus, summary judgment may be properly granted because the conclusion that employer was on notice of Plaintiff’s pregnancy or fertility treatments is not the only reasonable interpretation of the known and undisputed facts.

The remainder of Plaintiff’s opposition relates to the argument that the proffered reasons for her termination were weak, and thus pretextual. As discussed above, under the third step of the McDonnel Douglas test the “plaintiff must ... have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.” (Guz v. Bechtel Nat. Inc., supra, 24 Cal.4th at 356.) In demonstrating that an employer's proffered nondiscriminatory reason is false or pretextual, “ ‘[an employee] cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent....’ ” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) Moreover, “[c]ircumstantial evidence of ‘ “pretense” must be “specific” and “substantial” in order to create a triable issue with respect to whether the employer intended to discriminate’ on an improper basis.” (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69.)

Here, however, Plaintiff’s arguments challenging the strength of Jet Aviation’s legitimate business reasons for Plaintiff’s termination all fail as a matter of law because Plaintiff cannot satisfy the first step of showing discriminatory motive, which requires Jet Aviation’s knowledge of Plaintiff’s protected status. (Trop v. Sony Pictures Entertainment, Inc., supra, 129 Cal.App.4th at 1145 [“An employee cannot make out a prima facie case of discrimination based on pregnancy under FEHA in the absence of evidence the employer knew the employee was pregnant.”].) That is, no matter how weak a reason to support Jet Aviation’s termination, Plaintiff cannot rely on this evidence to state a claim where there is no evidence supporting a “rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's action.” (Trop, surpa, 129 Cal.App.4th at 1149 [quoting Guz, supra, 24 Cal.4th at p. 361].)[5]

For example, Plaintiff argues that the PIP and its timing were suspect. Specifically, Plaintiff notes that Jaque indicated, in her letter requesting Plaintiff’s termination, that Plaintiff’s performance began to decline again from “late October 2020 and March 17, 2021.” Plaintiff argues that it is suspicious that Jaque waited four months after her performance purportedly declined to request the termination. However, as a preliminary matter, waiting a period of four months to determine whether the poor performance was truly a new pattern of poor behavior does not appear suspicious in dealing with a major decision to terminate an employee. Contrary to Plaintiff’s assertion, this is not “clear” evidence of pretext. Indeed, it suggests the opposite, that the employer was patient in evaluating Plaintiff’s performance.

More to the point, there can be no argument of pretext where there is inadequate evidence of a disability to support pretext. As discussed above, the evidence of her disability was only conveyed to the decisionmakers on April 8, 2021– when she requested a leave of absence. (DSS 35.) She still did not convey that this leave of absence was related to a pregnancy until the following day, but the evidence was sufficient to put Jet Aviation on notice of some disability and a need for accommodation. Nonetheless, the evidence of her earlier medical appointments are insufficient to impute knowledge of Plaintiff’s pregnancy or fertility treatments prior to this date. Thus, there can be no discriminatory motive when there is no known discriminatory grounds for termination prior to the date of the adverse employment decision.

Thus, “[w]hen there is no disputed issue of material fact that the employer had a nondiscriminatory reason for the adverse employment decision, the employer is entitled to summary judgment.” (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.)

Therefore, the motion for summary adjudication of the Plaintiff’s first cause of action for discrimination based on her sex and pregnancy/reproductive health decision-making and second cause of action for discrimination based on disability are granted.

In the absence of any discrimination, there can be no failure to take all reasonable steps necessary to prevent discrimination; therefore, the motion for summary adjudication of the third cause of action is also granted.

The evidence shows that Jet Aviation was not aware of Plaintiff’s “known disability” and thus cannot have failed to make reasonable accommodations as alleged in Plaintiff’ fourth cause of action. Further, Plaintiff concedes that she did not have any known disability until April 8, 2021 – after Plaintiff had been terminated. (DSS 41, see also 33-37.)[6] For similar reasons, the motion for summary adjudication of Plaintiff’s fifth cause of action, for failure to engage in an interactive process to determine reasonable accommodations for Plaintiff’s disability, must also be granted.

For the same reasons as the first and second causes of action, the motion for summary adjudication of Plaintiff’s sixth causes of action for violation of the pregnancy disability leave provisions of the FEHA and seventh cause of action for harassment based on pregnancy and related medical conditions in violation of the FEHA must also be granted.

The motion for summary adjudication of the eighth cause of action for wrongful termination in violation of public policy must also be granted. Under California law, if an employer did not violate FEHA, the employee's claim for wrongful termination in violation of public policy necessarily fails. (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 272–273, superseded by statute on another point as stated in Alch v. Superior Court (2004) 122 Cal.App.4th 339, 396–397.)

The motion for summary judgment is granted. The motion for summary adjudication is moot.

[1] (Cf Fibreboard Paper Products Corporation v. East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL–CIO, et al. (1964) 227 Cal.App.2d 675, 712 [“The objection to such exhibit was, however, a general one. An inadmissible portion of a document, the remainder of which is admissible in evidence, cannot be reached by a general objection to the admission of the entire document, but the inadmissible portion must be specified.”].)

[2] Although Jet Aviation disputes these conversations occurred, it accepts Plaintiff’s allegations for the purposes of this motion.

[3] Jet Aviation notes that the only written record of complaints regarding fumes occurred in on July 17, 2020 – based on an email written by Riedel – and September 17, 2020 – in another email written by Riedel. (Schubert Decl., Ex. A [Pl. Depo. 204:2-18, Ex. 23; Pl. Depo. 207:15-24, Ex. 30].)

[4] It is unclear how these complaints regarding exhaust fumes fit into Plaintiff’s claims. Plaintiff seems to suggest that Jet Aviation’s concern in remedying these complaints came from its knowledge that she was pregnant. (SAC ¶ 105.) There is no evidence to support this connection.

[5] A thin reason for termination is not unlawful where Plaintiff is “an at-will employee, who could be terminated from employment at any time without case, for any or no reason, and subject to no procedure except the statutory requirement of notice.” (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1149.)

[6] “FEHA's reference to a “known” disability is read to mean a disability of which the employer has become aware, whether because it is obvious, the employee has brought it to the employer's attention, it is based on the employer's own perception—mistaken or not—of the existence of a disabling condition or, perhaps as here, the employer has come upon information indicating the presence of a disability.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61.)