Judge: Theodore R. Howard, Case: 21-1215725, Date: 2023-08-03 Tentative Ruling

The Motion for Summary Judgment or in the alternative Summary Adjudication filed by Defendant Advanced Sterilization Products, Inc. (“Defendant” or “ASP”) on 11/2/22 is GRANTED.

1st cause of action: Discrimination Based on Association with Someone with a Disability

Under the McDonnell Douglas (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668]) process for allocating burdens of proof and producing evidence, which is used in California for disparate-treatment cases under FEHA, the employee must first present a prima facie case of discrimination. The

burden then shifts to the employer to produce evidence of a nondiscriminatory reason for the adverse action. At that point, the burden shifts back to the employee to show that the employer’s stated reason was in fact a pretext for a discriminatory act.

The employer (moving party) must carry the burden of showing the employee's action has no merit (CCP § 437c(p)(2)). It may do so by evidence either negating an essential element of the employee's claim; or showing some legitimate, nondiscriminatory reason for the action taken against the employee. (See Caldwell v. Paramount Unified School Dist., (1995) 41 Cal.App.4th 189, 202-203).

To present a  prima facie case of discrimination it must be shown that  plaintiff (1) suffered from a disability (or here, was associated with someone with a disability); (2) was otherwise qualified to do her job; and (3) was subjected to adverse employment action because of the association with someone with a disability. (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1037.) Defendant argues that Plaintiff’s prima facie case fails as she cannot show she was otherwise qualified to do her job, because she was not performing competently.

It is undisputed that Plaintiff did not perform work for at least three consecutive days in early October 2020.  Further, it is undisputed that Plaintiff’s supervisor emailed her repeatedly asking for updates on her computer issues or for her to contact him, with no response.  Williams from HR also attempted to contact Plaintiff by phone and email with no response until they finally connected by phone days later. Plaintiff’s failure to work and failure to communicate with her supervisor and HR about those absences constitute incompetent performance of her job.  As such, Plaintiff’s discrimination claim fails.

Even if Plaintiff could present a prima facie case of discrimination, Defendant argues it had a legitimate non-discriminatory reason for termination as Plaintiff’s unexplained absences and job abandonment conduct violated company policy. A reason is “legitimate” if it is facially unrelated to prohibited discrimination or bias, and which, if true, precludes a finding of discrimination. (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181.) ASP’s policy states that an employee abandons her job if she is absent from work for more than three consecutive workdays without notifying her manager of the reason for the absence and its expected duration. (UMF 2).  ASP further has a policy that an employee voluntarily separates if she acts in a way that indicates she has abandoned her job. (UMF 2). Plaintiff missed meetings, assignments, and failed to respond to communications while missing at least four consecutive workdays without notifying her manager.  As such, Defendant had a legitimate non-discriminatory reason for her termination.

This shifts the burden to Plaintiff to prove by “specific” and “substantial” evidence that the stated reason is pretext for discrimination. (Loggins v. Kaiser Permanente Int’l (2007) 151 Cal.App.4th 1102, 1113.) Plaintiff must demonstrate “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in ASP’s reason such that a reasonable factfinder could find the reason “unworthy of credence.” (Hersant v. Dept. of Social Servs. (1997) 57 Cal.App.4th 997, 1005.) Per the case law cited by Plaintiff, failure to follow normal protocol in handling plaintiff’s case “might well be relevant to support” inferring retaliation. (Kotla v. Regents of the University of California (2004) 115 Cal.App.4th 283, 294 fn. 6.) However, it is not dispositive, particularly in the absence of other evidence showing pretext. 

Here, assuming that Plaintiff informed personnel at ASP that she would need time off to take care of her daughter sometimes, that does not excuse a multiple day absence without notifying or communicating with her supervisor or HR.  While Plaintiff asserts she did some work between September 28, 2020 and October 12, 2020, she does not dispute that she did not work for a stretch of at least four consecutive days, nor does she dispute that she failed to respond to numerous emails and calls from her supervisor and HR.  As such, Plaintiff has failed to show “specific” and “substantial” evidence of pretext. As such summary judgment as to the first cause of action is GRANTED.

2nd cause of action: Retaliation in Violation of Fair Employment and Housing Act (“FEHA”)

To establish a prima facie case of retaliation, Plaintiff must establish (1) she engaged in a protected activity; (2) she was subjected to an adverse employment action; and (3) that a causal link existed between the protected activity and the adverse action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) If a prima facie case is established, the burden of producing evidence shifts to the employer to articulate a legitimate non-retaliatory reason for its action. (Yanowitz, supra,  36 Cal.4th at 1042.) And if the employer meets this burden, the presumption of retaliation “drops out of the picture,” and the burden shifts back to the employee to prove intentional retaliation. (Id.)

While Plaintiff’s EEOC complaint is clearly a protected activity and Plaintiff’s termination was an adverse employment action, Plaintiff cannot show a causal link between her EEOC complaint and her termination. To assert this link, Plaintiff points to the temporal proximity of participating in mediation on the EEOC claim and her termination and asserts she experienced hostility following the mediation, as her supervisor, Breazeale, began acting harsher towards her, scrutinizing her work, and yelling at Plaintiff.

“In the classic situation where temporal proximity is a factor, an employee has worked for the same employer for several years, has a good or excellent performance record, and then, after engaging in some type of protected activity—disclosing a disability—is suddenly accused of serious performance problems, subjected to derogatory comments about the protected activity, and terminated. In those circumstances, temporal proximity, together with the other evidence, may be sufficient to establish pretext. (Arteaga v. Brink’s Inc. (2008) 163 Cal.App.4th 327, 353-354.)

That is not the case here. Plaintiff had been employed with Defendant for least than a year, and while she had no prior history of documented performance problems in her short employment history with Defendant, there is no indication that she was “subjected to derogatory comments about the protected activity” after her EEOC claim.  Plaintiff relies on temporal proximity not only to show pretext but also to imply that the alleged harsher scrutiny of Breazeale was motivated by her EEOC claim. There is no evidence other than alleged temporal proximity (as Plaintiff does not specify a time period for this harsher treatment) that any such treatment had a retaliatory motive. This is not enough to establish pretext absent some other evidence that her termination was not about her unexplained absences and failure to communicate. As such, summary judgment as to the second cause of action is GRANTED.

3rd cause of action: Failure to Prevent Discrimination in Violation of FEHA

A plaintiff cannot prevail on a failure-to-prevent theory unless she can show that actionable discrimination actually occurred. (Trujillo v. N. Cnty. Transit District (1998) 63 Cal.App.4th 280, 287; see also, e.g., Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1313-15 (holding that a claim for failure to prevent harassment cannot prevail when the necessary element of harassment is not established).)

Plaintiff’s opposition focuses heavily on harassment, however, no harassment claim is pled in this action, nor is this cause of action based on a failure to prevent harassment.  As Plaintiff’s underlying discrimination claim fails, this claim also fails.  Summary judgment as to the third cause of action is GRANTED.

6th cause of action: Retaliation in Violation of Labor Code § 1102.5

While the elements of this retaliation claim are the same as the second cause of action, Labor Code § 1102.5 claim has a lower burden for Plaintiff, requiring only that the protected activities were a contributing factor to a contested employment action.  (Lawson v. PPG Architectural Finishes, Inc. (2002) 12 Cal.5th 703, 718.) Defendant then must show by clear and convincing evidence that it would have taken the action for legitimate, independent reasons even if plaintiff had not engaged in protected activity. (Ibid.)

Again, with only temporal proximity, Plaintiff has not shown that her protected activities were a contributing factor to her termination. Further Defendant has shown that the action it would have taken the same action for a legitimate independent reason outside of Plaintiff’s protected action.  As such, summary judgment as to the third cause of action is GRANTED.

It is undisputed that Defendants granted Plaintiff an additional five months of leave after he took CFRA leave. The only possible adverse employment action that qualifies for CFRA retaliation would be the demotion, and Plaintiff does not allege a causal connection between his request for CFRA leave and the demotion. There are no allegations as to when he first put in a request for CFRA leave that can then be temporally tied to the demotion. Based on this, there is no triable issue of material fact as to retaliation for taking CFRA leave, and summary judgment as to the sixth cause of action is GRANTED. 

7th cause of action: Wrongful Termination in Violation of Public Policy

 “Under California law, if an employer did not violate FEHA, the employee’s claim for wrongful termination in violation of public policy necessarily fails.” (Featherstone v. Southern California Permanente Medical Group (2017) 10Cal.App.5th 1150, 1169.)

As plaintiff’s FEHA claims above fail, necessarily her wrongful termination claim fails. As such, summary judgment as to the seventh cause of action is GRANTED.

8th cause of action: Intentional Infliction of Emotional Distress

A cause of action for intentional infliction of emotional distress requires Plaintiff to prove (1) extreme and outrageous conduct by ASP with the intention of causing, or reckless disregard of the probability of

causing, emotional distress; (2) that Plaintiff suffered severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by ASP’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) Personnel management activity cannot support a claim of intentional infliction of emotional distress even if improper motivation is alleged. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)

Plaintiff’s opposition makes it clear that the alleged conduct underlying her claim for intentional infliction of emotional distress is her termination.  Plaintiff argues that as she has sufficiently alleged a claim of harassment, she can also sustain a claim for intentional infliction of emotional distress.  Plaintiff asserts that Janken supports this, and that her termination was distressing and humiliating, paired with the timing in relation to her daughter’s surgery and her inability to pay her daughter’s medical bills.

Defendant notes that Plaintiff does not bring a harassment cause of action, and that Plaintiff’s argument that her termination is the basis of her IIED claim fails under Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.  That case notes that “If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination” not intentional infliction of emotional distress. (Id.) As such, Plaintiff’s claim for intentional infliction of emotional distress fails and summary judgment as to the eighth cause of action is GRANTED.

9th cause of action: Defamation

To establish a prima facie case for defamation, Plaintiff must show a publication by ASP to a third party.  Alternatively, Plaintiff can show that she was coerced into making a self-publication. Plaintiff must prove that she was required to disclose contents of her personnel file to a prospective employer “in order to explain away a negative job reference.” (Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 373.)

Plaintiff does not dispute that during her post-ASP job search, none of the documents submitted to prospective employers indicated the reason her employment with ASP ended, nor did Plaintiff discuss the reason she separated from ASP during job interviews.  (UMF 17.) Plaintiff also does not dispute that The Work Number handles inquiries from prospective employers, and only provides neutral proof of employment information. (UMF 18.)

Plaintiff only barely asserts, without evidentiary support or citation to facts, that Defendant made false statements to prospective employers or that she was forced to republish the defamatory statements to those prospective employers. However, her testimony undermines these assertions. As such, Plaintiff fails to establish either a publication to a third party by Defendant or a coerced self-publication.  Summary judgment as to the ninth cause of action is GRANTED.

Moving party to give notice