Judge Randolph M. Hammock, Case Number: 20STCV44818, Date: 2023-09-11 Tentative Ruling

Plaintiff Gabriela Robles worked as a security supervisor and investigator for Defendant United Parcel Service, Inc. In September 2018, Plaintiff’s supervisors Defendants Sara Barnes and Jason Wek learned Plaintiff was pregnant. In response, Plaintiff alleges Defendants began harassing and retaliating against her to encourage Plaintiff to resign. Plaintiff brings causes of action for (1) Pregnancy Discrimination (Govt. Code § 12940, et seq.), (2) Disability Discrimination (Govt. Code §12940, et seq.), (3) Failure to Accommodate (Gov. Code § 12940(m)), (4) Failure to Engage in the Interactive Process (Govt. Code § 12940(n)), (5) Retaliation (Govt. Code § 12940(h)), (6) Retaliation (Labor Code § 1102.5 et seq.), (7) Failure to Prevent Discrimination and Retaliation (Govt. Code § 12940(k)), (8) Wrongful Constructive Discharge in Violation of Public Policy, (9) Failure to Provide Meal Periods (Labor Code § 226.7), (10) Failure to Provide Rest Periods (Labor Code § 226.7), and (11) Failure to Produce Personnel and Payroll

For example, Defendants’ Undisputed Material Fact number 60 quotes the text of an email sent by Defendant Sara Barnes to Defendant Jason Wek. As supporting evidence, Defendants cite “Wek Dep. at 105:22-106:1, Exh. 5.” (See SSUMF 60 [bold and underline added].) However, there is no Exhibit 5 referenced in or attached to the Index of Evidence, or anywhere else in the moving papers.

Defendants did include the transcripts from the Wek Deposition, attached to the Index of Evidence as Exhibit 4-D. It is only within the deposition transcript that the Exhibit 5 email is referenced and was “marked for identification” as such at deposition. (Wek Deposition, Exh. 4-D, 105:22.) But again, Defendants do not provide Exhibit 5 itself—only references to it.

As another example, Defendants’ Undisputed Material Fact number 21 states that Robles “submitted a commitment letter to Barnes via email acknowledging that she understood what her responsibilities were and what was expected of her.” (SSUMF 21.) As supporting evidence, Defendants cite “Robles Dep. at 138:15-139:1, Exh. 24.” (Id. [Bold and underline added].)

Defendants provide a transcript of the Robles Declaration in the Index of Evidence, however labeled as Exhibit 4-A. The deposition transcript references “an email exchange between [Robles] and [Barnes] dated October 3, 2018,” containing the commitment letter. (Robles Decl., Exh. 4-A, 138: 17-18.) According to the transcript, Defendants marked that email as Exhibit 24. (Id. 138: 20-21.) Again, however, there is no Exhibit 24 in the Index of Evidence or other moving papers. In other words, Defendants have failed to provide the email exchange or “commitment letter” relied upon in the Separate Statement.

By including references to this evidence, Defendants are conceding they are material. (See CRC Rule 3.1350(d)(2) [stating the Separate Statement of Undisputed Material Facts should include “only material facts and not any facts that are not pertinent to the disposition of the motion”].) Each of the material facts in the statement must be “followed by a reference to the supporting evidence.” (CCP § 437c(b)(1); California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal. App. 5th 1272, 1296-1297.) A motion must be supported by evidence establishing the moving party's right to the relief sought. (Regents of Univ. of Calif. v. Sup.Ct. (1996) 41 Cal. 4th 1040, 1044.)

A party moving for summary judgment must “provide the full record to the trial court.” (EHP Glendale, LLC v. Cnty. of Los Angeles (2011) 193 Cal. App. 4th 262, 272.) After all, it is the moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact (Aguilar, supra, 25 Cal. 4th at 850.)

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389. A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action. Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858. Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. § 437c(o)(2).

Plaintiff Gabriela Robles (“Robles”) worked for Defendant United Parcel Services, Inc. (“UPS”), as a security supervisor and investigator. (FAC ¶ 11.) In or around September 2018, Plaintiff’s supervisors, Defendants Sara Barnes and Jason Wek, learned Plaintiff was pregnant. (Id. ¶ 12.) “Almost immediately after learning of her pregnancy, both Ms. Barnes and Mr. Wek began a campaign of harassment and retaliation against Ms. Robles to encourage her to resign from her position.” (Id. ¶ 13.)

Beginning in October 2018, Plaintiff alleges Defendant Wek “demand[ed] that she finish job assignments immediately” despite knowing it was impossible. (Id. ¶ 14.) Defendant Wek would “then would reprimand [Plaintiff] on the grounds that she was too slow.” (Id.)

meal or rest break – only to learn that [Defendant] Wek had later altered her timesheet to state she only worked 5.5 hours without a break.” (Id. ¶ 15.) “When [Plaintiff] complained to [Defendant] Wek about the alteration of her timesheet, [Defendant] stated that [Plaintiff] missed her lunch because she was ‘volunteering’ her time. [Plaintiff] was then, inexplicably, reprimanded by UPS for missing her lunch and was forced to write a commitment letter for failing to take a timely lunch period.” (Id. ¶ 16.)

Plaintiff alleges she complained to UPS’s Human Resources department “about the additional pressure Mr. Wek and Ms. Barnes had placed on [Plaintiff] upon learning of her pregnancy.” (Id. ¶ 17.) “[R]ather than investigate the matter, the human resources representatives at UPS told [Plaintiff] that she and Mr. Wek should ‘try to communicate better with each other’.” (Id.)

As a part-time employee, Plaintiff was not permitted to work more than 27.5 hours per week. (Id. ¶ 19.) Plaintiff alleges Defendant Barnes, “in an effort to harass [Plaintiff] and retaliate against her once it became known that she may require pregnancy-related accommodations in the future, took advantage of [Plaintiffs’] part-time status and intentionally assigned work to her that she knew could not be completed in a timely fashion and would subject Ms. Robles to discipline.” (Id. ¶ 20.)

“On or about November 21, 2018, a day before the Thanksgiving holiday, Ms. Robles received an email from Ms. Barnes asking about a job assignment when Ms. Barnes knew that Ms. Robles had already left UPS for the day and would not be returning until Monday, November 26, 2018, in light of the holiday.” (Id. ¶ 18.) “Once Ms. Robles returned to work, she was immediately reprimanded and informed that she was receiving a written disciplinary notice for her failure to respond to Ms. Barnes’ requests.” (Id. ¶ 21.) Two days later, “Ms. Robles was told by Ms. Barnes that she was no longer to work on investigations “effectively immediately” and was effectively stripped of her supervisory authority – losing a key component of her work as security supervisor at UPS.” (Id. ¶ 22.)

“On December 11, 2018, Ms. Robles’ physician placed her on medical leave through December 26, 2018, due to depression and severe emotional distress that was now threatening [the] safety of her pregnancy.” (Id. ¶ 27.) Plaintiff continued medical leave through March 2019. (Id. ¶ 29.)

When ruling on a motion for summary adjudication in the context of a discrimination claim, “the trial court will be called upon to decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. If the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing. (Moore v. Regents of Univ. of California (2016) 248 Cal. App. 4th 216, 236 [emphasis in original].) “Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case....[Citation.] However, ‘many employment cases present issues of intent, ... motive, and hostile working environment, issues not determinable on paper. Such cases ... are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.” (Id. [emphasis in original].)

Generally, to make a prima facie case for FEHA discrimination, “the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355.)

Plaintiff alleges she faced discrimination “immediately” after notifying Defendants of her pregnancy. (FAC ¶ 32.) The discrimination included, among other things, “unfairly reprimanding Plaintiff, altering Plaintiff’s timesheets, disciplining Plaintiff after intentionally assigning her work that she could not complete in a timely fashion, demoting Plaintiff and stripping her of her supervisory authority, denying Plaintiff the opportunity to work more hours when requested, failing to investigate Plaintiff’s complaints of Defendant’s unlawful discrimination and retaliation, and ultimately forcing her resignation and constructively terminating her employment.” (Id. ¶ 33.)

“In California, an employee seeking recovery on a theory of unlawful discrimination or retaliation must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity.” (St. Myers v. Dignity Health (2019) 44 Cal. App. 5th 301, 318.) Echoing that concept, the CACI instructions state:

Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [name of defendant] has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [name of plaintiff]’s employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action.

“Minor or relatively trivial adverse actions by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee do not materially affect the terms or conditions of employment.” (Francis v. City of Los Angeles (2022) 81 Cal. App. 5th 532, 541.)

“Constructive discharge occurs when the employer's conduct effectively forces an employee to resign.” (Atalla v. Rite Aid Corp. (2023) 89 Cal. App. 5th 294, 319.) “The essence of the test is whether, under all the circumstances, the working conditions are so unusually adverse that a reasonable employee in plaintiff's position ‘would have felt compelled to resign.’” (Id. at 320.) “Constructive discharge, like actual discharge, is a materially adverse employment action.” (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253.)

First, Defendants contend Plaintiff cannot state a prima facie case of discrimination because she suffered no adverse employment action. Rather, the conduct Plaintiff complains of “had [no] material impact on a term or condition of her employment.” (Mtn. 17: 12-13.) Defendants also contend Plaintiff’s suggestion that she was constructively discharged is not an adverse employment action because Plaintiff “admits she chose to resign in order to settle her workers’ compensation claim.” (Mtn. 17: 22-23.)

On April 3, 2019, Robles settled a workers’ compensation claim she commenced against UPS in December 2018, in which she claimed injuries to her “back, neck, shoulders, stress, pysch” dating back to December 20, 2017, via compromise and release for $35,000. (SSUMF 103.) As part of that release, Plaintiff signed a voluntary resignation letter terminating her employment with UPS. (Id. 104.) Defendant argues that “UPS did not force or pressure Plaintiff to resign via compromise and release. Plaintiff chose this option with the assistance of counsel in order to receive immediate payment.” (SSUMF 110.)

Defendant Barnes and Defendant Wek learned Plaintiff was pregnant in September of 2018. (SSADMF 6.) On October 11, 2018, Defendant Wek demanded that Plaintiff finish an assignment during that day’s same shift at all costs. (SSADMF 8.) This required that Plaintiff work through her lunch break and log seven hours on her timecard. (SSADMF 9.) However, Plaintiff discovered the next day that Defendant Wek had asked Defendant Barnes to reduce the time on Plaintiff’s timecard to only 5.5 hours. (SSADMF 12.) Only after Plaintiff complained to Larry Wogoman, and only after Plaintiff wrote a commitment letter stating she “chose” to work through her lunch break was Plaintiff’s timecard changed to reflect the correct amount of hours she worked. During this meeting, Wek stated this incident would affect her ability to become promoted in the future. (SSADMF 17.)

On November 21, 2018, Defendant Barnes “intentionally set Plaintiff up for failure” by giving Plaintiff assignments to complete just before the conclusion of her shift before the Thanksgiving holiday. (SSADMF 28.) Once Plaintiff returned to work on November 26, a performance review for Plaintiff was held with Defendant Wek, Defendant Barnes, and Human Resources Supervisor Joshua Hernandez. (SSADMF 30.) During this performance review, Wek and Barnes threatened Plaintiff’s future job prospects at UPS. (SSADMF 31.) Defendant Barnes then informed Plaintiff that Plaintiff could no longer conduct investigations on her own, thereby stripping Plaintiff of “her main job duty.” (SSADMF 35.)

Barnes also proceeded to post Plaintiff’s negative feedback on Plaintiff’s “My Talent Center” profile in the “Career” profile section. (SSADMF 32.) UPS’s person most knowledgeable, Christine Castaldi-Inman, testified at deposition that this was the improper place for a supervisor to enter disciplinary notes as it can be viewed company-wide. (SSADMF 33.) Defendant Barnes agreed at deposition that negative feedback left on My Talent Center profile could negatively affect an employee’s growth at the company. (Id.)

On November 28, 2018, Plaintiff emailed Marina Santos, where she complained of pregnancy discrimination, retaliation, and harassment by Wek and Barnes. (SSADMF 38.) After not hearing anything, Plaintiff followed up with Santos by email on December 6, 2018. (SSADMF 45.) Plaintiff did not receive an update on her complaint until after December 10, 2018, when she made a call to the UPS help line. Also on December 10, 2023, Plaintiff began her medical leave of absence due to stress and anxiety. (SSUMF 46.)

Plaintiff presents evidence that the negative work environment was a factor in her decision to sign the workers compensation compromise and release with resignation. At deposition, when asked why she took the workers compensation settlement instead of returning to work, Plaintiff testified:

Taking this evidence together, a reasonable trier of fact could find that Defendants engaged in a course or pattern of conduct that materially and adversely affected the terms, conditions, or privileges of Plaintiff’s employment. In so finding, this court also notes that “ ‘[b]ecause the FEHA is remedial legislation,” the court “must construe the FEHA broadly, not ... restrictively.” (Vernon v. State of California (2004) 116 Cal. App. 4th 114, 123.) Accordingly, Plaintiff has established a prima facie adverse employment action.

Next, Defendants argue Plaintiff cannot present evidence of a discriminatory motive. “[T]he employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” (Galvan v. Dameron Hosp. Assn. (2019) 37 Cal. App. 5th 549, 559.)

Defendants contend that Plaintiff has only identified two instances where her pregnancy was discussed: once when Barnes asked Robles if she was pregnant (Robles responded that she was), and once when Barnes asked Wek if he knew Robles was pregnant (Barnes responded that he did not). (UMF 121-124.) Defendants suggest that Plaintiff’s “rank speculation that Wek and Barnes might have discriminated against her because she was pregnant is not evidence of discrimination and cannot satisfy her prima facie case.” (Mtn. 18: 17-19.)

Relatedly, Defendants contend they had legitimate, non-discriminatory reasons for their conduct. Beginning on September 7, 2018, the UPS Security Department underwent a restructuring on a national level. This included (a) a scaling back of tasks that were allowed or expected to be performed by Part-Time Supervisors; (b) tighter focus on limiting Part-Time Supervisors’ hours to five and one half per shift and twenty-seven and on half per week; (c) heightened scrutiny of the handling of investigations and particularly the average time to investigate and close the cases; and (d) an overall reduction of headcount in the Security department, with supervisor ranks in Plaintiff’s district dropping by more than half. (SSUMF 7.)

As part of the restructuring, Part-Time Security Supervisors, including Plaintiff, were no longer to open new investigations themselves, but were to support Full-Time Supervisors with conducting investigations. (SSUMF 9, 19.) It was also a new goal for all Managers and Full-Time Supervisors to enter an average of two “incidents” into the UPS Incident Reporting System per day, rather than the previous one incident per day. (Id. 11.) All cases were to be closed out within 45 days. (Id. 12.) These goals were consistent among work group peers. (Id. 18.)

Thus, in October 2018, Defendant Barnes had a conversation with Plaintiff and another employee in which she told them they were not allowed to open any more investigations. (Id. 20.) On October 11, 2018, Plaintiff worked seven hours without taking a lunch break. This started the dispute over Plaintiff’s timecard hour reduction.

Defendants present further evidence that on or about November 7, 2018, Defendant Barnes learned Plaintiff was not present in the Van Nuys facility, despite Plaintiff’s timecard indicating she was at work. (SSUMF 40.) After comparing Plaintiff’s clock-in time on her timecards to surveillance footage of Plaintiff at the Van Nuys facility, Barnes discovered Plaintiff was reporting herself in for work at a specific time and was not actually arriving for work until an hour or so later. (SSUMF 42.) It was Defendant Barnes’ responsibility to audit timecards for employees who reported to her. (SSUMF 41.) Thus, on November 7, 2018, Defendant Barnes opened a Corporate Security Investigation Detail Report to document her investigation into Plaintiff’s timecard fraud in the IRS system. (SSUMF 43.) The next day, Barnes talked with Plaintiff to remind her that her start time was Monday, Wednesday, Friday at 4:00 a.m. and Tuesday and Thursday at 5:00 a.m. (SSUMF 45.) Even after the conversation, Plaintiff continued to show up to work after her scheduled start time and clock into PTRS earlier than she had actually arrived to work. (SSUMF 46.)

As discussed earlier, Defendants’ Separate Statement relies on exhibits referenced at deposition that Defendants have not submitted into evidence. Therefore, the court will not consider these proposed undisputed facts or corresponding evidence. That means the court disregards the following evidence:

Defendants attempt to present further evidence, that among other things, Defendant Barnes purportedly texted Robles on November 19, 2018, about several open IRS cases that were over 45 days old and two over 90 days old. (SSUMF 53.) Barnes instructed Plaintiff to close out the cases as soon as possible. (Id.) Barnes followed up with Plaintiff by text at on November 21, 2018, reminding her she needed two close the two overdue cases “today no exceptions.” (SSUMF 56.) Barnes also purportedly asked Robles for a commitment letter confirming her understanding that all IRS matters needed to be closed out within 90 days pursuant to their prior conversation. (Id.)

Later that day, Defendant Barnes learned Plaintiff left for the Thanksgiving holiday without closing out the two overdue IRS cases. (SSUMF 57.) Defendant then purportedly sent an email to both Plaintiff and another Part-Time Security Supervisor working under Defendant “to clarify her expectations of them, including that they should close out cases on a timely basis, be responsive to requests to prioritize closing cases, enter two IRS incidents per day, and provide commitment letters when requested to do so.” (SSUMF 59.)

Considering the above evidence—and disregarding the proposed evidence not properly submitted—Defendants have established legitimate, non-discriminatory factors for the adverse employment action. Namely, the alleged discrimination was not due to Plaintiff’s pregnancy. Instead, it can be attributed to UPS implementing a nationwide restructuring with new employment goals that governed Plaintiff’s employment.

This shifts the burden to Plaintiff to “offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Foroudi v. Aerospace Corp. (2020) 57 Cal. App. 5th 992, 1007.) “Although an employee's evidence submitted in opposition to an employer's motion for summary judgment is construed liberally, it ‘remains subject to careful scrutiny.’” [Citation.] (Id. at 1007-1008.)

Plaintiff argues “[t]he temporal proximity between her complaints and the adverse actions, the deviations from Defendants’ own policies, and Defendants’ failure to properly investigate Plaintiff’s claims are all issues that a jury could find prove that had Plaintiff not engaged in protected activity, she would not have been subjected to adverse action.” (Opp. 16: 18-21.)

Plaintiff presents evidence that Barnes frequently asked Plaintiff how she was feeling. (SSDMF 122.) Plaintiff estimates she complained specifically of pregnancy-related illnesses at least four times to Barnes. (Id.) Within weeks of learning Plaintiff was pregnant, Defendants’ alleged mistreatment of Plaintiff began.

Plaintiff states she was never made aware of a restructuring. (SSDMF 7.) Plaintiff also notes that Defendant has failed to provide any documentary evidence, such as any internal documentation of the purported restructuring, that would support its assertion that a restructuring occurred. (Id.) UPS’ investigation into Plaintiff’s complaint found that 4 of the 7 issues Plaintiff complained of were “substantiated.” (SSADMF 51).

If such a restructuring occurred—and in a manner that would substantively change Plaintiff’s day to day job functions in the way Defendants claim it did—it is reasonable to assume Defendant would have informed Plaintiff of the restructuring. When considering that the only evidence of the restructuring is Defendant’s own assertions that it happened, the evidence is not particularly strong. (See Foroudi, supra 57 Cal. App. 5th at 1007-1008 [the “stronger the employer's showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff's evidence must be in order to create a reasonable inference of a discriminatory motive.”].)

Moreover, Plaintiff presents evidence that the alleged discrimination occurred shortly after Defendants learned of her pregnancy. (See Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479 [“Pretext may ... be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination.”].)

To establish a FEHA claim for harassment, a plaintiff must show that “(1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Galvan v. Dameron Hosp. Assn. (2019) 37 Cal. App. 5th 549, 563.)

“Actionable harassment consists of more than “annoying or ‘merely offensive’ comments in the workplace,” and it cannot be “occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) Harassment “must be assessed from the ‘perspective of a reasonable person belonging to [same protected class as] the plaintiff.’ ” (Cornell v. Berkeley Tennis Club, (2017) 18 Cal. App. 5th 908, 940.)

“Whether the conduct of the alleged harassers was sufficiently severe or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing and conduct that a reasonable person in the plaintiff's position would find severely hostile or abusive.” (Serri v. Santa Clara Univ. (2014) 226 Cal. App. 4th 830, 870 [cleaned up].)

The harassment cause of action is based on the same evidence discussed in the discrimination claim. Again, by construing Plaintiff’s evidence liberally and resolving all evidentiary doubts in her favor, this court concludes that Plaintiff has carried her burden to demonstrate a triable dispute of material fact. (Foroudi, 57 Cal. App. 5th at 1007.)

Plaintiff’s third cause of action for discrimination is based on her pregnancy. Plaintiff alleges “Defendants knew that Plaintiff had a serious medical condition,” that “Plaintiff was qualified and able to perform her essential job duties with or without a reasonable accommodation, including a medical leave of absence,” and that Defendants “unfairly discipline[ed] her and forc[ed] her resignation during her medical leave of absence.” (FAC ¶¶ 48-50.)

Defendants argue Plaintiff Robles “does not claim she suffered any limitation in her ability to work until after the allegedly discriminatory conduct at issue here. In fact, she claims that Barnes and Wek’s conduct is the thing that caused her to have medical issues, not that they discriminated against her because she had medical issues.” (Mtn. 22: 7-10.)

Plaintiff alleges Defendants knew that Plaintiff had a serious medical condition, but “failed to provide Plaintiff with reasonable accommodations needed because of her medical disability. Instead, Defendants unfairly disciplined her, and forced her resignation, constructively terminating her employment.” (FAC ¶¶ 55, 57.) Relatedly, Defendants “failed to engage in a timely, good faith interactive process.” (Id. ¶ 64.)

The elements of a failure to accommodate claim are “(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1009–10.)

“The ‘interactive process' required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not necessarily required.” (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1013.)

Defendants argue these claims fail because they promptly provided Plaintiff with all accommodations she sought. They present evidence that UPS granted Robles’ December 11, 2018 request for medical leave, as well as every request she made to extend her leave, which continued until the end of her employment. (SSUMF 84; see Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App. 4th 215, 226 [holding “a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties”].)

Here, Plaintiff presents evidence that she complained to supervisors of the threat to her health based on Defendants’ conduct. (SSADMF 39.) However, UPS delayed in investigating Plaintiff’s complaints, leaving Plaintiff in the same assignment with the same supervisors. (Id.)

Relatedly, where a Defendant knows the offered accommodations are insufficient—even though the employer has offered all of those requested by the employee—it may still trigger [an employer’s] duties to engage in the interactive process and to consider any and all reasonable accommodations.” (Lin v. Kaiser Found. Hosps. (2023) 88 Cal. App. 5th 712, 729.)

Plaintiff alleges “Defendants retaliated against [her] because of her pregnancy and because of her disability, and request for disability related accommodations, by, among other things, unfairly criticizing Plaintiff’s work, altering Plaintiff’s timesheets, disciplining Plaintiff after intentionally assigning her work that she could not complete in a timely fashion, demoting Plaintiff and stripping her of her supervisory authority, denying Plaintiff the opportunity to work more hours when requested, failing to investigate Plaintiff’s complaints of Defendant’s unlawful

“[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal. App. 5th 908, 942.)

Defendants argue the cause of action fails because there is no evidence tying the adverse employment action to Plaintiff’s pregnancy or her request for accommodations. Defendants also contend the protected activity occurred on November 28, 2018, when Plaintiff complained to Santos that Defendants Barnes and Wek were treating her unfairly and she speculated that it might be because she would eventually take a leave of absence due to her pregnancy. (SSUMF 74.)

However, Defendants take too narrow a view of this cause of action. The evidence underlying this cause of action is the same underlying Plaintiff’s discrimination claim(s). Considering that evidence, this court finds Plaintiff has established a triable issue as to FEHA retaliation.

Plaintiff alleges she faced retaliation as a result of the “complain[ts] to Defendants and their representatives [of] the unlawful alteration of her timesheets by Mr. Wek, the complaints to UPS’s human resources department about the additional pressure Mr. Wek and Ms. Barnes had placed on upon learning of her pregnancy, and the formal written complaint submitted by Plaintiff on or around November 28, 2018 to UPS’s human resource representative Marina Santos regarding the unlawful retaliation that Ms. Barnes and Mr. Wek subjected upon Plaintiff.” (FAC ¶ 77.)

Labor Code section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities. It prohibits an employer from retaliating against an employee for sharing information the employee “has reasonable cause to believe ... discloses a violation of state or federal statute” or of “a local, state, or federal rule or regulation” with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation. (§ 1102.5, subd. (b).) “This provision,” the Supreme Court of California has explained, “reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.)

A claim for violation of Labor Code section 1102.5 requires “(1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation. [Citations.] To establish the first element, the plaintiff must show (1) the plaintiff engaged in protected activity, (2) the defendant subjected the plaintiff to an adverse employment action, and (3) there is a causal link between the two.” (Ross v. Cnty. of Riverside (2019) 36 Cal. App. 5th 580, 591–92.)

Again, at minimum, Plaintiff presents evidence that Defendant Wek altered her timecard to reduce the hours she worked on October 11, 2018. (SSADMF 16-17). Plaintiff then complained to human resources. Following this, Defendants posted negative criticism of Plaintiff on her PTRS profile, launched what Plaintiff calls a “sham” timecard fraud investigation into Plaintiff, and assigned Plaintiff work that could not possibly be completed during her shift, among other things.

Defendants first contend that Plaintiff’s claim must fail with the underlying retaliation and discrimination claims. Courts have required a finding of actual discrimination, retaliation, or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k) for failure to prevent the same. (Dickson v. Burke Williams, Inc. (2015) 234 Cal. App. 4th 1307, 1314.)

Defendants also contend that Plaintiff’s claim fails “because UPS has appropriate policies in place to prevent discrimination and retaliation, as well as appropriate procedures making internal complaints.” (Mtn. 27: 8-10.) Whether this contention is supported is a triable issue of material fact.

Plaintiff alleges Defendants “wrongfully constructively discharged [her] Employment,” motivated by the fact that “Plaintiff faced discrimination and retaliation because of her pregnancy disability, reported the illegal conduct she was being subjected to, and the further subsequent discrimination and retaliation Plaintiff faced.” (FAC ¶ 90.)

A claim for wrongful discharge in violation of public policy requires the employee to prove (1) he or she was employed by the employer, (2) the employer discharged the employee, (3) the alleged violation of public policy was a motivating reason for the discharge, and (4) the discharge caused the employee harm. (Haney v. Aramark Unif. Servs. Inc. (2004) 121 Cal. App. 4th 623.)

Defendants argue that Plaintiff cannot establish a constructive discharge because she voluntarily resigned as part of her workers compensation claim. However, as discussed, Plaintiff presents evidence that the negative work environment was a substantial factor in her decision to sign the workers compensation compromise and release with resignation.

Plaintiff alleges “during her employment with Defendants, [she] was not provided with all of her thirty (30) minute, duty-free meal periods in violation of Labor Code § 226.7.” (FAC ¶ 99.) Plaintiff alleges “[d]uring her employment with Defendant, Plaintiff was not provided with all of her ten (10) minute, duty-free rest periods in violation of Labor Code § 226.7.” (Id. ¶ 105.)

However, Plaintiff testified that she was regularly denied meal and rest breaks. (SSADMF 54). Indeed, Wek punished Plaintiff for working through a meal break by altering her time record. (SSADMF 9, 13, 17). Therefore, a reasonable trier of fact could conclude Defendants committed the meal the rest violations complained of.