Moore v. Century Gaming Management CA2/2 ( 2014 )

Filed 6/4/14 Moore v. Century Gaming Management CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
BRENDA MOORE, B249978
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC474362)
v.
CENTURY GAMING MANAGEMENT,
INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael
L. Stern, Judge. Reversed and remanded.
Horton Law Firm, Laura L. Horton and Flor C. Dery; Bruce Traney; Ben-Cohen
Lawyers and Pejman Ben-Cohen for Plaintiff and Appellant.
Ford & Harrison, Stephen R. Lueke, Michelle B. Abidoye, and Stefan H. Black for
Defendant and Respondent.
Brenda Moore (appellant) appeals from a judgment entered after the trial court
granted summary judgment in favor of Century Gaming Management, Inc. doing
business as Hollywood Park Casino (respondent) on appellant’s claims against
respondent for discriminatory termination; interference with rights under the California
Family Rights Act (CFRA) (Gov. Code, §§ 12945.1, 12945.2); retaliatory termination for
exercising her rights under the CFRA; tortious termination and discrimination in
violation of public policy; and age discrimination. We find that triable issues of material
fact exist as to each cause of action; therefore we reverse and remand for further
proceedings.1
FACTUAL BACKGROUND
When analyzing facts in the context of a summary judgment motion, “[w]e accept
as true the facts alleged in the evidence of the party opposing summary judgment and the
reasonable inferences that can be drawn from them. [Citation.]” (Horn v. Cushman &
Wakefield Western, Inc. (1999) 72 Cal. App. 4th 798, 805.)
Appellant’s employment
Respondent hired appellant as a general housekeeper in 1998. Appellant routinely
received raises and was promoted to the position of lead housekeeper in 2001. In 2004,
appellant was promoted to shift supervisor. Appellant reported to Ronnie Blackwell
(Blackwell), director of housekeeping and Patricia Boston (Boston), housekeeping senior
supervisor. Appellant was an at-will employee.
Over the years, as appellant aged, she noticed that Blackwell was “constantly on
[her] all the time.” In November 2006, appellant complained to Blackwell’s superiors
that he had suspended her without cause. When she returned, she filed a grievance.
After that, she felt that Blackwell was watching her all the time, and he made comments
to her such as “[Y]ou’re slow. You walk like you’re old.” Blackwell told her that her
1 The trial court granted summary adjudication as to each of the subject causes of
action, which were the only remaining causes of action at the time the motion was filed.
The court then granted summary judgment, finding that no triable issues of fact remained.
For simplicity, we will use the term “summary judgment” throughout this opinion.
2
department reflected her behavior. He used the term “laxadasy.” (Sic.) Appellant could
not understand his complaints since all the work was getting done. When appellant
requested to work the first shift, Blackwell informed her that she would never work the
first shift because she was slow. He stated that the people on appellant’s shift were not
“the sharpest knives in the cabinet.”
Sometime after December 2006, appellant complained to human resources director
Stephanie Dinwiddie (Dinwiddie) about Blackwell’s behavior. Dinwiddie informed
appellant that Blackwell would get upset if she interfered in his department.
Respondent’s family medical leave policy
Respondent’s employee handbook describes eligible employees’ annual right to
take 12 weeks of family medical leave, and describes the circumstances under which
leave may be taken. Appellant acknowledged that she received the handbook on several
occasions.
Respondent’s family and medical leave policy requires employees to exhaust any
unused vacation time during their family medical leave.2 Employees also have the option
to take paid unprotected leave, such as vacation, sick leave, and floating holidays, in lieu
of protected family medical leave. If an employee elects to take unprotected leave in lieu
of family medical leave, the time off is paid and does not count against the employee’s
family medical leave entitlement. Respondent had a standard leave of absence request
form for employees wishing to take family medical leave.
Employees who wished to take unprotected leave in lieu of family medical leave
were required to submit a request for vacation, sick leave, or floating holiday to their
supervisor. If an employee had sufficient vacation time to fulfill the requested leave, the
employee would not need to fill out a leave of absence request. In that case, the
employee could simply go to his or her supervisor and seek the requested vacation time.
A housekeeping employee who needed CFRA leave, but had sufficient vacation time, had
2 Such a policy is permitted under both state and federal law. (See Gov. Code,
§ 12945.2, subd. (e); 29 U.S.C. § 2612(d)(2)(A).)
3
to submit a vacation request to Blackwell or Boston. Blackwell and Boston were
authorized to approve requests for unprotected leave.
Employees that wished to take unprotected leave concurrent with family medical
leave were required a submit a leave of absence request form with their request for
unprotected leave. The employee would initially make the request to his or her
supervisor, and present the paperwork showing why the family leave was necessary. The
supervisor would then fill out the required paperwork to submit the family leave request
to human resources. To ensure consistency, respondent required that all requests for
family medical leave be submitted to benefits manager Sharon Wady (Wady), who had
exclusive authority to approve family medical leave requests. However, it was the
responsibility of supervisors such as Blackwell and Boston to inform human resources
that the time off was for protected medical leave and to submit the necessary paperwork.
Appellant’s requests for leave
In 2008, appellant’s father was diagnosed with Alzheimer’s disease and terminal
cancer. Appellant attempted to get unprotected leave from Blackwell and Boston in order
to care for her father, but they denied her requests. Appellant remembers clearly having
at least two conversations with Wady in which she informed Wady of the situation and
that she was finding it difficult to take time off to care for her father. Appellant would
request leave from her supervisors which would be denied. When appellant would talk to
Boston about CFRA, Boston acted as if she had no knowledge of its requirements. The
last time appellant went to Wady with this problem, she told Wady she had given Boston
and Blackwell a copy of the FMLA and was still being told she could not take time off
work.
Tired of Boston and Blackwell’s reactions to her requests for leave, appellant went
directly to Wady in September of 2009, saying that Blackwell was “giving her a hard
time” about absences related to her father’s condition. Wady informed appellant that she
could “avoid the whole situation by getting a medical certification for her dad.” Wady
provided appellant with a form to get a certification from her father’s health care
provider. Appellant filled out the first page of the form immediately and then took the
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form to her father’s doctor for completion. The doctor’s signature on the form is dated
October 20, 2009. Appellant brought the completed form back to human resources.
Appellant explained: “What I wanted was to be able to take time off when my dad was
sick to take care of him without being written up or harassed when I returned.”
Wady recalled reviewing the document in 2009. She understood that appellant
would need intermittent leave to care for her father. Although appellant’s father’s doctor
suggested that appellant work on a part-time or reduced schedule, Boston informed
appellant that part-time work was not available. Appellant understood that she could not
take unpaid leave until she exhausted her vacation time. She never requested a full three
months of unpaid leave because “it was such a fight to take time off.” When she took
time off, she would be written up for something. Appellant described her supervisors’
criticisms: “The lady said the restroom wasn’t clean when she walked in. There was a
piece of paper on the floor. I’m writing you up. You know. You’re taking too much
time off. We don’t have the staff for it.” Appellant stated she felt it would be useless to
ask for three months off when there was a problem with her taking off even a day or two.
After appellant submitted her formal certification for leave, she was occasionally
granted leave. However, she could recall at least 10 times when Blackwell denied her
leave to care for her father. Blackwell continued to get upset when appellant asked for
time off to care for her father. Blackwell would tell her that she needed to leave her
problems at home and suggested she put her father in a “home.” Appellant said she
retained the paperwork every time a request for leave was denied, however, one day she
came to work and her desk was gone and she was ordered to get rid of the papers.
From October 2009 through the end of June 2010, appellant took the following
days off to care for her father:
1. October 20 and 21, 2009, appellant took floating holidays.
2. October 24 and 25, 2009, appellant took vacation days.
3. December 16 and 19, 2009, appellant took sick days. On December 23, 2009,
she took a personal holiday.
4. January 10, 2010, appellant took a sick day.
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5. March 10, 2010, appellant took a sick day.
6. From May 8 to May 12, 2010, appellant took vacation days.
7. On June 29 and 30, 2010, appellant took sick days.
In 2010, the health of appellant’s father further deteriorated. She requested two
weeks of family medical leave in March 2010, but her request was denied. On March 10,
she had to transport her father to the hospital, so she called in sick, despite Blackwell’s
instruction that she not do that. When she returned to work on March 13, 2010, she
received a write-up for her work performance on March 9. The memorandum from
Blackwell was dated March 10, 2010.
On March 25, 2010, appellant’s father was admitted to hospice care with a
terminal diagnosis of end stage Alzheimer’s disease and a life expectancy of less than six
months.
On April 19, 2010, Blackwell wrote-up appellant again, this time for failing to
document another employee’s suspected intoxication. Blackwell yelled loudly at
appellant in front of her staff, and told her that he wanted her terminated, but Dinwiddie
told him that he could not fire her.
On July 1, 2010, appellant submitted certification from her father’s hospice
provider that his death was imminent and he needed 24-hour care at home. The hospice
provider requested that appellant be allowed time off to stay near her father on his death
bed.
Appellant had previously requested days off for July 7, 2010, and July 24 and 25,
2010. Around this time, Blackwell asked appellant how her father was doing. When
appellant responded that her father was not doing very well, Blackwell asked, “Why
don’t you take a couple of weeks off?” Appellant was surprised because normally
Blackwell would give her a hard time about taking time off to be with her father. She
found his suggestion to be “suspicious.” Appellant recalled: “I didn’t ask for these two
weeks off. He voluntarily told me to take them.” It was particularly strange because just
days before, Boston had denied appellant’s written request for time off. After her
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unusual conversation with Blackwell, appellant was granted two weeks of family leave
from July 10 through July 23, 2010.
Respondent initiates cost-cutting measures
Respondent’s chief operating officer, Taro Ito (Ito), had become concerned about
the overall financial state of the company. He recalled that every conversation he had
with employees in the various departments was about how to save money and how to
lower costs and become more efficient. These conversations were not directed
specifically at the housekeeping department, but were universal. However, there was
never a formalized plan to identify the areas in which the departments were to cut costs.
Instead, Ito told everyone to look at his or her own department and see where cuts could
be made. There was no specific dollar amount or percentage of overhead that was
targeted. It was a general directive to cut operating costs. In early 2010, the possibility
of layoffs was discussed at a directors meeting. However, there was no written policy
nor were there any guidelines, for any such proposed layoffs. Instead, Ito would leave it
up to the directors and staff to make recommendations regarding layoffs. He trusted that
his directors knew their personnel and their duties and what they could or could not live
without. There was no structured plan for a reduction in force. The general custom and
practice of the company was last in, first out.
In the housekeeping department Blackwell looked at cutbacks in supply purchases
and work hours. If an individual left, he would not rehire someone for that position.
However, records show that the housekeeping department hired two employees in March
2010, two more in April 2010, one in May 2010, and two in June 2010.
Blackwell claims that he decided to terminate appellant sometime in May or June
2010, approximately two months before he actually fired her. He decided to recommend
the elimination of appellant’s position because she was earning the equivalent of $16 per
hour to perform essentially the same tasks as housekeeping leads, who made only $10 per
hour. Appellant was the only individual chosen by Blackwell to be terminated from
housekeeping to cut costs. Blackwell did not inform appellant right away because he
believed she was on leave at the time. When it was pointed out to him that appellant did
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not go on leave until July, Blackwell stated he could not recall why he did not inform
appellant of her termination in June. Although Blackwell claimed that he calculated the
financial impact of appellant’s termination, there were no discussions regarding the
amount of any cost savings that could be achieved by terminating appellant, and
Blackwell did not know the actual savings.
During appellant’s July 2010 leave of absence, Terry Benton (Benton), a new hire
in the housekeeping department was trained.
Appellant’s termination from employment
There is conflicting evidence as to the precise events surrounding appellant’s
termination. Appellant claims that when she returned to work on July 26, 2010, after her
family medical leave of absence, she was called into a meeting with Dinwiddie, Boston,
and Blackwell. Blackwell did most of the talking, telling her they were letting her go and
that her position was being discontinued. Appellant asked whose decision it was, and
Blackwell said it was “all of us.” Blackwell said, “Don’t worry. We’re going to call it a
layoff. And that you can get your full benefits from unemployment.” Appellant worked
until the end of her shift on July 26, 2010, and that was the last day she performed any
work for respondent. Appellant was 50 years old at the time of her termination.
Respondent’s witness, Dinwiddie, tells a slightly different story. She says that the
meeting at which appellant was informed of her termination took place on July 27, 2010.
Respondent claims that appellant worked a full day on July 26, 2010, then was terminated
when she came to work the next day. Dinwiddie also testified that she handed appellant a
letter documenting appellant’s termination. However, there is no testimony in the record
from appellant that she received such a letter at the time of her termination. Respondent
also claims that appellant was offered a demotion to lead housekeeper in lieu of the
layoff. However, according to respondent, when appellant returned to turn in her uniform
a day or two after her termination, she stated that she did not want to take the lesser
position. Appellant denies that such an offer was ever made to her.
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Respondent outsources its housekeeping function
In December 2010, Blackwell and an associate formed an entity called Direct
Contract Services (DCS) for the sole purpose of providing housekeeping services to
respondent. Respondent contracted out its housekeeping needs to DCS and transferred
all of its housekeeping employees to DCS. Thus, had appellant’s employment not been
terminated, it would have been transferred to DCS.
Other layoffs in 2010
Respondent points to evidence that in 2010, it terminated 51 employees in a series
of rolling layoffs. The layoffs included the elimination of five middle-management
positions in addition to appellant’s shift supervisor position: (1) security captain on July
20; (2) marketing manager on October 31; housekeeping supervisor (Boston’s position)
on December 26; (4) director of housekeeping (Blackwell’s position) on December 26;
and (5) food and beverage manager on December 28.3 Of the 51 total employees who
were laid off in 2010, 31 of them (61 percent) were 40 years old or older.
On or about September 10, 2010, Dinwiddie created a document called “Wage
Reduction Cost Savings” to reflect the monetary savings that respondent had achieved by
reducing staff and hours. The document reflected savings of $154,036.65 from the
implementation of cost-cutting measures which included the elimination of appellant’s
position.
PROCEDURAL HISTORY
Appellant filed her complaint against respondent and Blackwell on November 30,
2011. She alleged 11 causes of action: (1) race discrimination; (2) race discrimination
and tortious termination in violation of public policy; (3) breach of implied-in-fact
contract not to terminate without good cause; (4) discriminatory termination premised
upon her CFRA leave request; (5) interference with her CFRA rights; (6) retaliatory
3 Respondent declines to mention that Boston’s and Blackwell’s positions were
eliminated as part of the outsourcing to DCS. Both individuals continued to be employed
providing housekeeping services to respondent as part of DCS. In fact, Boston’s title
changed from lead supervisor to manager and she received a raise in pay.
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termination for requesting and going on family care leave in violation of CFRA; (7)
tortious termination and discrimination stemming from her CFRA leave request; (8)
defamation; (9) intentional infliction of emotional distress; (10) age discrimination; and
(11) declaratory relief.
Blackwell was dismissed from the case on July 20, 2012. On January 15, 2013,
appellant voluntarily dismissed her first, second, third, eighth, ninth, and eleventh causes
of action.
On February 22, 2013, respondent filed a motion for summary judgment, or in the
alternative, motion for summary adjudication, as to appellant’s remaining causes of
action: CFRA interference (fifth cause of action); CFRA discrimination and retaliation
(fourth, sixth, and seventh causes of action); and age discrimination (10th cause of
action). On May 21, 2013, the trial court issued a written order granting respondent’s
motion in full. The court provided the following rationale for granting summary
judgment on the remaining causes of action: as to the fourth cause of action for
discriminatory termination under the CFRA, the sixth cause of action for retaliatory
termination under the CFRA, the seventh cause of action for tortious termination and
discrimination in violation of public policy, and the 10th cause of action for age
discrimination, the trial court found that respondent offered a legitimate,
nondiscriminatory reason for the action and appellant had not provided substantial
evidence of pretext. As to the fifth cause of action for interference with appellant’s rights
and refusing her request for CFRA leave, the trial court found that appellant’s evidence
was extraneous to the essential elements of this cause of action.
On July 9, 2013, appellant filed her notice of appeal.
DISCUSSION
I. Standard of review
The standard of review for an order granting or denying a motion for summary
judgment or adjudication is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th
826, 860 (Aguilar).) The trial court’s stated reasons for granting summary relief are not
10
binding on the reviewing court, which reviews the trial court’s ruling, not its rationale.
(Kids’ Universe v. In2Labs (2002) 95 Cal. App. 4th 870, 878.)
A 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, supra, 25 Cal.4th at p. 850, fn. omitted.) “There is a triable issue of material
fact if, and only 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., fn. omitted.) “A defendant bears the burden of
persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be
established,’ or that ‘there is a complete defense’ thereto. [Citations.]” (Ibid.)
Generally, “the party moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable issue of
material fact; if he carries his burden of production, he causes a shift, and the opposing
party is then subjected to a burden of production of his own to make a prima facie
showing of the existence of a triable issue of material fact. . . . A prima facie showing is
one that is sufficient to support the position of the party in question. [Citation.]”
(Aguilar, supra, 25 Cal.4th at pp. 850-851.)
Under the standards set forth above, respondent was required to show that, as to
each of appellant’s causes of action, there was no triable issue of material fact and that
respondent was entitled to judgment as a matter of law. The burden then shifted to
appellant to show the existence of a triable issue of fact as to that cause of action. We
examine appellant’s causes of action below.
II. The CFRA causes of action
A. Applicable law
The CFRA prohibits covered employers from refusing to grant a request by an
employee to take up to a total of 12 workweeks in any 12-month period for family care
and medical leave. (Gov. Code, § 12945.2, subd. (a).) In addition, when an employee is
granted family care or medical leave pursuant to the CFRA, the employer must provide
the employee with a guarantee of employment in the same or a comparable position upon
11
the employee’s return from leave. (Ibid.) Under the CFRA, an employee may take
unpaid leave to care for a parent who has a serious health condition. (Gov. Code,
§ 12945.2, subd. (c)(3)(B).)4
The CFRA has a federal counterpart: the Family and Medical Leave Act of 1993.
(29 U.S.C. §§ 2601-2654 (FMLA).) To the extent that they are not inconsistent with
California law, the federal regulations interpreting the FMLA have been incorporated by
reference into the law governing the CFRA. (Cal. Code Regs., tit. 2, § 11097.) “By
prohibiting ‘employment discrimination based upon family and medical leave, the CFRA
strengthens the [California Fair Employment and Housing Act’s (FEHA)] general goal of
preventing the deleterious effects of employment discrimination, and also furthers the
CFRA’s specific goal of promoting stability and economic security in California
families.’ [Citation.]” (Faust v. California Portland Cement Co. (2007) 150 Cal. App. 4th
864, 878 (Faust), fn. omitted.)5
The CFRA creates two categories of protections that are available to eligible
employees. The first is an “interference claim,” which is based on the employer’s
interference with an employee’s rights under the CFRA. (Faust, supra, 150 Cal.App.4th
at p. 879.) Such a violation “‘simply requires that the employer deny the employee’s
entitlement to [CFRA] leave.’ [Citation.]” (Ibid.) In seeking CFRA leave, the employee
need not specifically invoke the CFRA or FMLA. Instead, the employee need only “state
the reason the leave is needed.” (Cal. Code Regs., tit. 2, § 11091.) The employer is
permitted to inquire further if necessary “‘to have more information about whether CFRA
is being sought by the employee and obtain the necessary details of the leave to be
taken.’” (Faust, at pp. 879-880.) The FMLA regulations interpret “interference” to
4 Respondent has not disputed appellant’s entitlement to CFRA leave to care for her
father.
5 Because the CFRA and the FMLA contain nearly identical provisions regarding
family or medical leave, California courts routinely rely on federal cases interpreting the
FMLA when reviewing the CFRA. (Rogers v. County of Los Angeles (2011) 198
Cal. App. 4th 480, 487 (Rogers).)
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include refusing the authorization of medical leave, discouraging the use of medical
leave, and using the leave as a negative factor in employment actions. (29 C.F.R.
§ 825.220; Rogers, supra, 198 Cal.App.4th at p. 488, fn. 3.)
The second category of protection guarantees that an employee who takes CFRA
leave will not suffer adverse employment action. In order to prove a prima facie case of
CFRA retaliation or discrimination, the employee must show that: (1) the employer was
subject to the CFRA; (2) the employee was eligible for CFRA leave; (3) the employee
exercised his or her right to take a qualifying leave; and (4) the employee suffered an
adverse employment action because he or she exercised the right to take CFRA leave.
(Rogers, supra, 198 Cal.App.4th at pp. 490-491.)
B. Fifth cause of action for CFRA interference
Appellant alleges that respondent interfered with her CFRA rights by denying her
CFRA when she asked for it; discouraging her from taking CFRA leave; misclassifying
appellant’s leave as vacation/sick leave; and failing to guarantee appellant’s employment
when she returned from leave.
In its summary judgment motion, respondent argued that there was no evidence
that appellant’s request for family medical leave was ever interfered with or denied.
Respondent argued that, while there was evidence that Blackwell denied appellant’s
requests for family and medical leave, Blackwell in fact did not have the authority to
deny such requests. Respondent argued that there is no evidence that Wady -- who was
the only person authorized to deny such requests -- ever did so.
Respondent also argued that there was no evidence that appellant was ever
disciplined for taking family medical leave. Respondent pointed out that Blackwell’s
2010 memorandum addressed customer complaints about the cleanliness of the women’s
restroom, not appellant’s request for time off.
The trial court agreed with respondent, citing the following facts:
Fact 18: “Plaintiff’s managers, Blackwell and Boston, do not have the authority to
approve family medical leave.”
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Fact 19: “[Respondent’s] policy requires employees to use their paid vacation
time before taking family medical leave.”
Fact 29: “Wady advised [appellant] that she could get a medical certification to
take family medical leave to care for her father so that she could take intermittent leave
when needed.”
Fact 32: “Wady approved [appellant’s] medical certification for intermittent
family medical leave.”
Fact 44: “On July 5, [appellant] submitted a handwritten note to Boston that
stated ‘Yes I need time off. Two weeks to start. What do I have to do.’”
Fact 46: “On July 10, 2010, [appellant] submitted [respondent’s] required leave
request form for family medical leave that requested time off from July 10 to July 23,
2010, which was approved by Human Resources.”
Fact 49: “[Appellant] alleges that there were certain dates during the September
2009 to July 2010 time period where Blackwell denied her request for family medical
leave.”
Fact 50: [“Appellant”] cannot recall specific occasions when her alleged requests
were denied.”
Fact 51: “After she was laid off, [appellant] filed an administrative charge with
the Department of Fair Employment and Housing Act where she identified Blackwell as
the individual who allegedly denied her family medical leave requests.”
The court cited these facts in support of its decision that “There’s no showing of a
refusal of the CFRA.” The court further stated: “[Appellant] waves the flag very loudly
about other facts and other denials, but a lot of that is just extraneous to the essential
elements of these particular causes of action.”
We note that, of the nine facts listed by the trial court, six of them, Facts 18, 32,
46, 49, 50, and 51, were listed as “disputed” in appellant’s separate statement. For
example, appellant disputed respondent’s statement that Blackwell and Boston do not
have the authority to approve family medical leave, citing deposition testimony of
Boston, Wady, Blackwell, and Dinwiddie which suggested that if an employee in the
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housekeeping department still had remaining vacation time, and was requesting less than
30 days off, those requests would be approved or denied by Blackwell or Boston.
Appellant also cited evidence that even if the employee had no remaining available
vacation time or was requesting more than 30 days leave, the request would initially have
to be approved by Blackwell or Boston, and it would be the responsibility of Blackwell or
Boston to bring the request to human resources.
Appellant also disputes respondent’s statement that she could “[not] recall specific
occasions when her alleged requests were denied.” To the contrary, appellant testified
that she recalled 10 separate instances when Blackwell denied her FMLA/CFRA leave.
For example, she asked for two weeks of leave in March 2010 but was denied.
Generally, there exists a triable issue of material fact if the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion. (Aguilar, supra, 25 Cal.4th at p. 850.) This is not a heavy burden. In sum,
appellant is only required to make a prima facie showing in support of her position.
(Ibid.) We find that appellant has made such a showing.
There is no dispute that respondent is a qualified employer and that appellant met
the criteria for entitlement to CFRA leave. There is also no dispute that she provided
respondent with a medical certification from her father’s doctor explaining the reasons
for her need for family medical leave. And appellant provided testimony that her
supervisors interfered with her right to take CFRA leave. She was told that she could not
take unpaid CFRA time until she exhausted her vacation time, and it was her supervisors,
Blackwell and Boston, who approved vacation time. 6 Appellant explained that when she
6 Respondent insists that it never denied appellant’s requests to take CFRA leave
because appellant neglected to fill out the appropriate request for CFRA leave along with
the various vacation and floating holiday requests that she made directly to Blackwell and
Boston. In sum, respondents argue that they “granted every request for family medical
leave that [appellant] chose to characterize as such.” However, appellant’s failure to
specifically invoke the CFRA is not fatal to her claims. Instead, she need only have
informed her supervisors of the reason that she wanted to take the time off. (Cal. Code
Regs., tit. 2, § 11091.) Appellant testified that she did so.
15
would take time off, she would get written up for something. Her supervisor told her
“You’re taking too much time off. We don’t have the staff for it.” After she submitted
her formal certification for family medical leave, she was occasionally granted time off
but she could specifically recall at least 10 instances when Blackwell denied her leave to
care for her father. Blackwell would get upset when she asked for leave to take care of
her father, and suggested that she put her father in a “home.” In particular, appellant
requested two weeks off in March 2010, but her request was denied. On the tenth of
March, she had to transport her father to the hospital so she called in sick. When she got
back, she had been written up for her performance.
This evidence is sufficient to create a triable issue of fact as to whether respondent
interfered with appellant’s CFRA rights. At the summary judgment stage of the
proceedings, appellant has only a burden of producing evidence to make a prima facie
showing of the existence of a triable issue of material fact. Significantly, this is a burden
of production, not a burden of persuasion. (Aguilar, supra, 25 Cal.4th at p. 850 [“A
burden of production entails only the presentation of ‘evidence.’. . . A burden of
persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite
degree of belief’”].) Appellant has produced sufficient evidence, mainly through her own
testimony, that respondent denied her entitlement to CFRA leave; discouraged her from
taking CFRA leave; and/or took adverse employment action against her for taking CFRA
leave. Under the circumstances, summary judgment on appellant’s cause of action for
CFRA interference was improper.7
7 After briefing was complete in this matter, respondent drew our attention to new
authority regarding appellant’s interference claim. The case Escriba v. Foster Poultry
Farms, Inc. (9th Cir. 2014) 743 F.3d 1236, involved an employee who was terminated
after failing to comply with her employer’s “‘three day no-show, no-call’” rule after a
previously approved period of leave to care for her father in Guatemala. Significantly,
the appeal was from a judgment after a jury trial. The parties disputed whether the
plaintiff chose to characterize her request for time off as FMLA. The employer, Foster
Farms, argued that although the plaintiff provided an FMLA-qualifying reason for taking
leave, “she explicitly declined to have her time off count as FMLA leave.” (Id. at p.
1239.) “The district court characterized the case as a classic ‘he said, she said’ matter
16
C. Fourth cause of action for discriminatory termination in violation of CFRA;
sixth cause of action for retaliatory termination in violation of CFRA; and seventh
cause of action for tortious termination in violation of public policy
Appellant’s causes of action for discriminatory and retaliatory termination will be
discussed together. All three causes of action generally allege wrongful termination on
the basis of appellant’s exercise of her CRFA rights.
“When a plaintiff alleges retaliatory employment termination either as a claim
under FEHA or as a claim for wrongful employment termination in violation of public
policy, and the defendant seeks summary judgment, California follows the burden-
shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell
Douglas) to determine whether there are triable issues of fact for resolution by a jury.
[Citation.]” (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal. App. 4th 1102,
1108-1109 (Loggins).)
“In the first stage, the ‘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.’
[Citation.] If the employee successfully establishes these elements and thereby shows a
prima facie case exists, the burden shifts to the employer to provide evidence that there
was a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If
the employer produces evidence showing a legitimate reason for the adverse employment
action, ‘the presumption of retaliation “‘“drops out of the picture,”’”’ [citation], and the
burden shifts back to the employee to provide ‘substantial responsive evidence’ that the
employer’s proffered reasons were untrue or pretextual. [Citation.]” (Loggins, supra,
151 Cal.App.4th at p. 1109.)
focused on what Escriba told her supervisors. Escriba’s claims therefore proceeded to a
jury trial . . . .” (Ibid.) This new authority thus supports our conclusion that a jury
determination is required for the factual questions in this case, such as what appellant
communicated to her supervisors, and whether they were aware that she wanted to take
CFRA leave.
17
The parties accept, and the trial court implicitly found, that appellant met the first
two elements of these causes of action: (1) she engaged in a protected activity, which
was her exercise of her right to take family medical leave; and (2) she was subjected to an
adverse employment action, her termination from employment. The trial court implicitly
found that appellant made a prima facie showing of a causal connection between the
protected activity and the employer’s action, but held that respondent offered a
legitimate, nondiscriminatory reason for the adverse employment action and that
appellant did not provide substantial evidence of pretext.
1. Appellant’s prima facie case
As set forth above, it is undisputed that appellant was eligible for CFRA leave.
Appellant has also provided evidence that she exercised her right to take CFRA leave.
Appellant’s exercise of her right to take family medical leave is a protected activity, thus
appellant has established this first element of her CFRA discrimination/retaliation claims.
In addition, in July 2010, appellant’s employment was terminated. This
constituted an adverse employment action. Thus, appellant has established this element
of her prima facie case.
Respondent argues that appellant cannot meet the requirement that she establish a
causal link between her protected activity and the adverse employment action.
Respondent acknowledges that very close proximity in time between the protected
activity and the adverse employment action can support an inference that the adverse
employment action was caused by the protected activity. (Clark County School Dist. v.
Breeden (2001) 532 U.S. 268, 273-274 [“The cases that accept mere temporal proximity
between an employer’s knowledge of protected activity and an adverse employment
action as sufficient evidence of causality to establish a prima facie case uniformly hold
that the temporal proximity must be ‘very close’”].) However, respondent argues that
temporal proximity should be measured from the date that appellant requested
intermittent CFRA leave, in September 2009. When analyzed from this point in time,
respondent points out, eight months passed between appellant’s request and the decision
to terminate her in May 2010. Two additional months passed before her position was
18
eliminated in July 2010. Respondent argues that this eight- to ten-month period
precludes a reasonable fact finder from concluding that a causal connection existed
between the two events.
Respondent cites no authority for its position that “the proper temporal proximity
analysis requires an examination of the amount of time between the date the protected
activity began (i.e., the date she requested CFRA leave) and the date of her adverse
employment action.” There is no legal support for respondent’s position that a request
for family medical leave is only protected at the point in time when the employee initially
requests the leave.
Taking CFRA leave -- not simply requesting CFRA leave -- is a protected activity.
The evidence shows that appellant took formal CFRA leave in July 2010 and was
terminated the day she returned to work.8 Considering that appellant had been employed
for 12 years, we find that appellant has established sufficient proximity in time between
the protected activity and her termination.
In addition, appellant has presented evidence that her supervisors were unhappy
with her requests to take time off to care for her father. Appellant testified that she was
told that she was taking too much time off and that respondent didn’t have the staff for it.
She indicated that it was a “fight” to take time off. In sum, there is evidence that
appellant’s superiors were unhappy that appellant was exercising her rights under CFRA.
This evidence is sufficient to establish a triable issue of material fact as to whether
there exists a causal connection between appellant’s protected activity and the adverse
employment action. We therefore conclude that appellant succeeded in establishing a
prima facie case of discriminatory and retaliatory termination under CFRA and the public
policies that underlie the statute.
8 We acknowledge that there is a factual conflict as to whether she was terminated
the day she returned to work, July 26, 2010, or the following day, July 27, 2010. This
factual dispute does not change the analysis.
19
2. Legitimate, nonretaliatory reason
Because appellant has set forth a prima facie case of discriminatory/retaliatory
termination in violation of CFRA, the burden shifts to respondent to present a legitimate,
nonretaliatory reason for the adverse employment action. (Loggins, supra, 151
Cal.App.4th at p. 1109.)
We find, as the trial court did, that respondent has met this burden. Respondent
provided evidence that its chief operating officer, Ito, became concerned about the
financial state of the company and initiated discussions with his employees about how to
lower costs. He issued a general directive to all the departments to cut operating costs.
In early 2010, at a directors meeting, layoffs were discussed. Ito left it up to the directors
and staff to make recommendations regarding layoffs.
Blackwell testified that he decided to terminate appellant’s employment sometime
in May or June 2010. He testified that his decision was based on the fact that appellant
was earning the equivalent of $16 per hour to perform essentially the same tasks as
housekeeping leads, who were making $10 per hour. Blackwell stated that his decision to
cut appellant’s position was solely for cost cutting.
On the basis of this evidence, we find that respondent has met its burden of
producing a legitimate, nonretalitatory/nondiscriminatory reason for appellant’s
termination.
3. Pretext
Because respondent has set forth a legitimate reason for appellant’s termination,
the burden shifts back to appellant “to provide ‘substantial responsive evidence’ that the
employer’s proffered reasons were untrue or pretextual. [Citation.]” (Loggins, supra,
151 Cal.App.4th at p. 1109.) However, appellant need not show that discrimination or
retaliation was the sole or determinative reason for the adverse action, but rather that it
was one of the reasons. (See, e.g., Heard v. Lockheed Missiles & Space Co. (1996) 44
Cal. App. 4th 1735, 1748 [“In some cases, the evidence will establish that the employer
had ‘mixed motives’ for its employment decision. [Citation.] In a mixed motive case,
both legitimate and illegitimate factors contribute to the employment decision”].)
20
“It is not enough for the employee simply to raise triable issues of fact concerning
whether the employer’s reasons for taking the adverse action were sound.” (Hersant v.
Department of Social Services (1997) 57 Cal. App. 4th 997, 1005 (Hersant).) This is
because it is not the employer’s wisdom that is in controversy, but the employer’s
possible improper motivation. Thus, in order to successfully raise the question of pretext,
appellant must set forth specific facts demonstrating “‘such weaknesses, implausibilities,
inconsistencies, incoherences, or contradictions in the employer’s proffered legitimate
reasons for its action that a reasonable factfinder could rationally find them “unworthy of
credence,” [citation] . . . . [Citations.]’ [Citations.]” (Ibid.) In short, appellant must set
forth evidence of a “‘discriminatory animus.’” (Ibid.)
Appellant sets forth several such inconsistencies or implausibilities which are
sufficient to create a question as to whether the motivation behind her termination was
permissible. Blackwell admitted that appellant was the only employee terminated in the
housekeeping department for alleged cost-cutting. In addition, records show that the
housekeeping department hired six new employees from March through June 2010.
Significantly, there was evidence that one of these new hires, Benton, was being trained
during the time that appellant was out on CRFA leave in July 2010. Benton ultimately
took over some of appellant’s job duties. Blackwell did not have any discussions with
anyone regarding the amount of cost savings that would result from appellant’s
termination, and he did not know the actual savings that resulted from her termination.
These facts are inconsistent with Blackwell’s position that appellant was
terminated due to cost cutting. It is contradictory for an employer to state that it is
terminating an individual’s job for cost cutting when it has hired several new employees
within the same time period as the individual’s termination. And Blackwell’s failure to
take into account the precise cost savings of appellant’s termination presents a weakness
in respondent’s defense. Respondent’s position would be more plausible if a financial
analysis had been undertaken prior to appellant’s termination.
Appellant also offered direct testimony that her supervisors were unhappy with her
attempts to exercise her right to take CFRA leave. Blackwell’s comments that she was
21
taking too much time off, and that she should put her father in a home, are evidence of a
discriminatory animus which would allow a reasonable fact finder to determine that
respondent’s proffered legitimate reasons are unworthy of credence.
In addition to these weaknesses and inconsistencies in respondent’s position, we
may consider the timing of appellant’s termination. While temporal proximity alone is
insufficient to establish pretext, it may be considered as evidence of pretext along with
other factors. (Loggins, supra, 151 Cal.App.4th at p. 1112; Arteaga v. Brink’s, Inc.
(2008) 163 Cal. App. 4th 327, 353-354 [“This is not to say that temporal proximity is
never relevant in the final step of the McDonnell Douglas test. 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 . . . is suddenly accused of serious performance problems,
subjected to derogatory comments about the protected activity, and terminated. In those
circumstances, temporal proximity, together with other evidence, may be sufficient to
establish pretext”].) As set forth above, appellant’s termination occurred either her first
day or her second day back from CFRA leave. Regardless of which specific day
appellant was terminated, this sequence of events satisfies the requirement that
“‘temporal proximity must be very close.’” (Arteaga, supra, at p. 354.)
“[W]e may not decide factual issues on summary judgment but may only identify
the presence or absence of factual issues. [Citation.]” (Loggins, supra, 151 Cal.App.4th
at p. 1110.) We find that the evidence set forth above is sufficient to create a triable issue
of fact as to pretext. A reasonable juror might conclude that respondent’s stated reason
for terminating appellant was pretextual, and was used as an excuse to terminate
appellant’s employment due to the fact that she was exercising her right to take CFRA
leave. As noted in Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243, 286
(Nazir), “many employment cases present issues of intent, and motive, and hostile
working environment, issues not determinable on paper. Such cases, we caution, are
rarely appropriate for disposition on summary judgment, however liberalized it be.” (Fn.
omitted.) We conclude that due to the abundance of factual controversies regarding
22
respondent’s motive in terminating appellant’s employment, summary judgment of these
CFRA-based causes of action must be reversed.
D. Tenth cause of action for age discrimination
Generally, a plaintiff alleging age discrimination must provide evidence that: (1)
she was a member of a protected class; (2) she was performing competently in the
position that he held; (3) she suffered an adverse employment action; and (4) some other
circumstance suggesting a discriminatory motive for the adverse employment action.
(Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 355.) As to the fourth element of
this cause of action, the plaintiff must show that she suffered the adverse action “under
circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that
the plaintiff was replaced by someone significantly younger than the plaintiff.
[Citation.]” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. App. 4th 297, 321 (Sandell),
fn. omitted.)
1. Applicable legal analysis
We must first address the proper analytical framework for appellant’s age
discrimination claim. Appellant argues that where there is direct evidence of
discrimination, the McDonnell Douglas test is inapplicable. In support of this argument,
appellant cites TWA. v. Thurston (1985) 469 U.S. 111, 121 (TWA) [“the McDonnell
Douglas test is inapplicable where the plaintiff presents direct evidence of
discrimination”].)
We find TWA to be factually distinguishable. There, the defendant had a policy
which was discriminatory on its face (TWA, supra, 469 U.S. at p. 121) which was direct
evidence of age discrimination. No such evidence is present in this case. No one has
admitted to terminating appellant due to her age, nor did respondent have a policy in
place which was discriminatory on its face. Instead, the fact finder must attempt to
determine respondent’s motive and intent from inference and presumption. (See Godwin
v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1221 [“‘Direct evidence is evidence
which, if believed, proves the fact [of retalitatory animus] without inference or
presumption’”].)
23
Appellant argues that “Comments demonstrating discriminatory animus may be
found to be direct evidence if there is evidence of a causal relationship between the
comments and the adverse job action at issue. [Citation.]” (DeJung v. Superior Court
(2008) 169 Cal. App. 4th 533, 550.) The comments at issue in DeJung were a presiding
judge’s comments to an applicant for a full-time commissioner position that “‘they want
someone younger, maybe in their 40’s.’” (Id. at pp. 540-541.) The Court of Appeal
concluded, “if a jury believed that [the presiding judge] made the comments attributed to
him by DeJung and Rigg, [the] statements would plainly qualify as direct evidence of
discriminatory animus.” (Id. at p. 550.)
Again, no such evidence exists in this case. No supervisor commented that they
were looking for someone younger to take appellant’s position. Instead, the evidence
here is circumstantial, and the McDonnell Douglas test is appropriate to determine if
summary judgment was appropriate. We therefore engage in the same burden-shifting
analysis as set forth above in connection with appellant’s CFRA causes of action.
2. Appellant’s prima facie case
A plaintiff is in a protected class for purposes of an age discrimination lawsuit if
he or she is over the age of 40. (Hersant, supra, 57 Cal.App.4th at p. 1003.) Appellant
was 50 years old at the time of her termination from employment. Therefore she has
established that she was a member of a protected class for the purposes of her age
discrimination claim. In addition, respondent does not dispute that appellant performed
competently and suffered an adverse employment action, which was her termination in
July 2010.
Appellant has presented evidence that after she was terminated, appellant was
replaced by significantly younger employees. Dinwiddie attested to the fact that after
appellant left respondent’s employ, her duties were taken over by four employees:
Boston, who was 47 years old at the time, housekeeping lead Cedric Outlaw, who was 44
years old at the time, housekeeping lead Benton, who was 24 years old at the time, and
Stephanie Greene, who was 29 years old at the time. Notably, all of these employees
were younger than appellant. Appellant provided evidence that the 24-year-old Benton
24
was being trained to take over some of appellant’s duties during the time of appellant’s
CFRA leave of absence. This evidence creates an inference that the much younger
Benton was being trained to replace appellant. Evidence that the plaintiff was replaced
by a significantly younger person is sufficient to create a prima facie case of age
discrimination where all the other elements of the violation are met. (Hersant, supra, 57
Cal.App.4th at p. 1003.)
In addition, Blackwell admitted that he fired appellant because, due to her
seniority, she was making more money than other employees performing the same tasks.
Such an admission provides evidence that there may have been a discriminatory motive
for appellant’s firing. For example, in Sandell, a manager was heard to say he would
“‘rather fire old people and replace them with newer, younger people because it was
cheaper.’” (Sandell, supra, 188 Cal.App.4th at p. 325.) The Court of Appeal stated:
“We must accept the most favorable interpretation of the evidence for purposes of the
summary judgment motion. A reasonable inference from this . . . evidence is that Taylor
was motivated to terminate employees because of their age.” (Ibid.) Similarly, here, we
must accept the favorable interpretation of Blackwell’s admission, and assume that
appellant was targeted because as an older employee, she was making more money than
younger, newer employees performing the same tasks.
The California Legislature has expressed a general policy that laying off older
workers because of the increased salary to which they have become entitled is
discriminatory. Government Code section 12941 states in part: “The Legislature
declares its intent that the use of salary as the basis for differentiating between employees
when terminating employment may be found to constitute age discrimination if use of
that criterion adversely impacts older workers as a group . . . . The Legislature further
reaffirms its intent that the courts interpret the state’s statutes prohibiting age
discrimination in employment broadly and vigorously.” Blackwell’s stated reason for
25
terminating appellant may be interpreted as an improper and discriminatory rationale.
We must interpret the statement in a light most favorable to appellant.9
Finally, appellant presents evidence that Blackwell referred to appellant as “slow,”
“old,” and “laxadasy [sic].” When appellant requested to work the first shift, Blackwell
informed her that she would never work the first shift because she was slow. He stated
that the people who worked appellant’s shift were not “the sharpest knives in the
cabinet.” Such comments may be interpreted as expressing a negative attitude towards
older workers, and may constitute circumstantial evidence of discrimination. (Reid v.
Google, Inc. (2010) 50 Cal. 4th 512, 540 [“even if age-related comments can be
considered stray remarks because they were not made in the direct context of the
decisional process, a court should not categorically discount the evidence if relevant; it
should be left to the fact finder to assess its probative value”].)
The evidence set forth above is sufficient to create a prima facie case of wrongful
termination based on age discrimination.
3. Legitimate, nonretaliatory reason
Because appellant has set forth a prima facie case of age discrimination, the
burden shifts to respondent to present a legitimate, nonretaliatory reason for the adverse
employment action. (Loggins, supra, 151 Cal.App.4th at p. 1109.)
Again we find, for the same reasons set forth above as to appellant’s retaliation/
discrimination for violation of her rights under CFRA, that respondent has met this
burden. Respondent provided evidence that its chief operating officer, Ito, became
concerned about the financial state of the company and initiated discussions with his
9 Respondent argues that there was no evidence that the 2010 layoffs
disproportionately affected employees over the age of 40. Respondent points to evidence
that in 2010, 69 percent of its employees were age 40 or older. Of the 51 employees who
were laid off in 2010, only 31 (61 percent) were age 40 or older. Thus, respondent
argues, the percentage of the workforce over the age of 40 actually increased after the
layoffs. This evidence supports respondent’s position, but does not eliminate a factual
dispute over the reasons for appellant’s termination in particular. A reasonable jury could
find that only appellant’s department, or only appellant’s supervisors, had the requisite
discriminatory animus.
26
employees about how to lower costs. He issued a general directive to all the departments
to cut operating costs. In early 2010, at a directors meeting, layoffs were discussed. Ito
left it up to the directors and staff to make recommendations regarding layoffs.
Blackwell testified that he decided to terminate appellant’s employment sometime
in May or June 2010. He testified that his decision was based on the fact that appellant
was earning the equivalent of $16 per hour to perform essentially the same tasks as
housekeeping leads, who were making $10 per hour. Blackwell stated that his decision to
cut appellant’s position was solely for cost cutting. Blackwell’s stated reason for
appellant’s termination could be interpreted by a fact finder as impartial and objective.
On the basis of this evidence, we find that respondent has met its burden of
producing a legitimate, nonretalitatory/nondiscriminatory reason for appellant’s
termination.
4. Pretext
Because respondent has set forth a legitimate reason for appellant’s termination,
the burden shifts back to appellant “to provide ‘substantial responsive evidence’ that the
employer’s proffered reasons were untrue or pretextual. [Citation.]” (Loggins, supra,
151 Cal.App.4th at p. 1109.)
We find that much of the same evidence which casts into doubt the legitimate,
nonretaliatory rationale stated by respondent in connection with the CFRA claims also
shows evidence of pretext in the context of appellant’s age discrimination claim. As set
forth above, Blackwell admitted that appellant was the only employee terminated in the
housekeeping department for alleged cost cutting. In addition, records show that the
housekeeping department hired six new employees from March through June, 2010.
Significantly, there was evidence that one of these new hires, Benton, was being trained
during the time that appellant was out on CRFA leave in July 2010. Blackwell did not
have any discussions with anyone regarding the amount of cost savings that would result
from appellant’s termination, and he did not know the actual savings that resulted from
her termination.
27
Furthermore, the evidence of Blackwell’s stray derogatory remarks may be
considered evidence of discriminatory animus. And finally, appellant provided evidence
that respondent had a general policy that employees would be terminated on a “last in,
first out” basis. The termination of appellant could be interpreted as a departure from that
policy. Respondent had employed appellant since 1998, and she had received promotions
and raises during the 12 years she worked for respondent.10 Yet she was terminated
before other housekeeping employees hired after her. Departure from normal procedures
“might afford evidence that improper purposes [played] a role” in appellant’s
termination. (Village of Arlington Heights v. Metropolitan Housing Development Corp.
(1977) 429 U.S. 252, 267.)
We find that this evidence is sufficient to create a triable issue of fact as to pretext
in connection with appellant’s age discrimination claim. A reasonable juror might find
that respondent’s stated reason for terminating appellant was pretextual, and that
respondent was instead motivated by a discriminatory purpose. Such issues of intent and
motive are not appropriate for disposition on summary judgment. (Nazir, supra, 178
Cal.App.4th at p. 286.) We conclude that summary judgment of appellant’s 10th cause of
action for age discrimination must be reversed.
10 Respondent argues that its seniority policy had no application to appellant because
she was the only shift supervisor employed in 2010. Thus, according to respondent, there
was no shift supervisor with fewer years experience than appellant. Respondent’s
argument is based on an interpretation of the facts which should be left to the jury. We
cannot decide on the record before us that respondent followed its last in, first out policy
as a matter of law.
A reasonable fact finder could find that because there were other employees in the
housekeeping department with fewer years experience than appellant, those employees
should have been laid off first, even if appellant had to be moved to a different position.
The question of whether appellant was offered a lesser position in lieu of termination is
vigorously disputed. On summary judgment, we must interpret the facts favorably to
appellant. (Aguilar, supra, 25 Cal.4th at p. 850.)
28
DISPOSITION
The judgment is reversed and remanded for further proceedings on appellant’s
fourth, fifth, sixth, seventh, and tenth causes of action. Appellant is awarded costs of
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.*
FERNS
________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
29