Stueland v. Petco Animal Supplies Stores CA4/1 ( 2016 )

Filed 1/28/16 Stueland v. Petco Animal Supplies Stores CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TIFFANY STUELAND, D068130
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2013-00072355-
CU-WT-CTL)
PETCO ANIMAL SUPPLIES STORES,
INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Joan M.
Lewis, Judge. Affirmed.
Gould & Associates, Michael A. Gould and Aarin A. Zeif for Plaintiff and
Appellant.
Procopio, Cory, Hargreaves & Savitch, Phillip L. Kossy, Kendra J. Hall and Annie
Macaleer for Defendant and Respondent.
INTRODUCTION
Tiffany Stueland appeals a summary judgment granted for Petco Animal Supplies
Stores, Inc. (Petco) on her complaint for pregnancy discrimination and wrongful
termination in violation of public policy. She contends the trial court improperly
weighed the evidence. We conclude Petco met its burden of establishing a legitimate
nondiscriminatory reason for Stueland's termination: violation of company policies
regarding a missing store deposit. We further conclude Stueland failed to meet her
burden of raising a triable issue of fact that Petco's reason for termination was pretextual
for pregnancy discrimination. We, therefore, affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A
Petco is a retailer of pet supplies. It employs more than 25,000 employees in more
than 1,300 locations across the United States, Mexico, and Puerto Rico.
Store deposits are typically taken to the bank daily. At the end of each day, the
manager on duty is required to account for all funds, prepare the deposit, and place it into
the safe to be taken to the bank the following day. When it is busy or the bank is closed,
two or three deposits may be in the safe at a time.
For Petco's operational and financial security, it is important for its managers to
"adhere to its policies and procedures regarding the handling of cash and store business
receipts and other assets, the preparation and logging of daily bank deposits, timely
taking them to the bank, and promptly reporting inaccuracies in the accounting for funds
2
(such as missing deposits)." A manager who learns about a missing deposit is required to
immediately notify the district manager and loss prevention.
Petco's code of ethics states protecting Petco's assets "is every associate's
responsibility" and notes loss of assets may be caused by many factors, such as theft of
funds as well as intentional or unintentional errors in paperwork. It states an employee
who becomes aware of "any potential loss to Petco . . . [has] an obligation to report it"
through the employee's normal chain of command or, if the employee is not comfortable
reporting through the chain of command, to report it to human resources, the legal
department or a hotline answered by a third party.
B
Stueland began working for Petco in 2007 at the Trautwein store in Riverside as a
cashier. She was promoted to be the companion animal department manager (CADM) in
2011. She transferred to the Tyler store in March 2013 after she became engaged to
another employee who was a manager at the Trautwein store. Petco's policy against
fraternization required one of them to relocate to another store. Stueland continued as the
CADM at the Tyler store taking care of the reptiles, small animals, and fish as well as
their supplies.
C
Stueland discovered she was pregnant in April 2013 and learned she was having
twins in early May 2013. About three weeks later, when she was in her second trimester,
she told her general manager, Laura Nelson, about her pregnancy. She let Nelson know
she was having twins and, since her pregnancy was considered to be high risk, she was
3
going to require more doctors' appointments than with a normal pregnancy. She wanted
Nelson to be able to prepare for these appointments.
The only other time Stueland mentioned her pregnancy to Nelson was when she
advised her about a doctor's appointment. Stueland reminded Nelson she had an
appointment and had prepared a time off request sheet. Nelson commented it was only a
request and she might not have the time off for the appointment. When Stueland
proposed scheduling the appointment for the morning so she could work the afternoon
shift and close the store, Nelson agreed. Stueland thought Nelson was standoffish about
the request; however, Stueland was able to attend the appointment.
Stueland felt Nelson's attitude changed toward her after learning about Stueland's
pregnancy. Stueland said Nelson became "a little bit more standoffish, sometimes a little
bit more rude." Nelson stopped making requests and started making demands. Stueland
also said Nelson would not look at her in the office or say "hi or bye." Stueland did not
know if Nelson's demeanor was associated with Nelson's own employment issues or
Stueland's pregnancy.
Stueland informed another employee of her pregnancy to ask for help with heavy
lifting. Stueland's doctor advised her not to lean anything on her abdomen and not to lift
anything over 15 pounds. She followed the restrictions and no one gave her any
difficulties regarding the restrictions.
After Stueland told Nelson and this other coworker about her pregnancy, all of the
managers congratulated her. Another employee, who is still employed with Petco, was
pregnant at the same time.
4
The assistant store manager, Lilia Campos, was very excited about Stueland's
pregnancy, asked how she was doing, and made sure she had everything she needed.
Campos was very caring and nice. Campos would not let Stueland order animal bedding
on her own, but required Stueland to write down the request for Campos to handle.
Stueland felt this delayed the shipment and interfered with her work. Stueland stated this
occurred both before and after she became pregnant, but she felt Campos became more
aggressive about the ordering after Stueland became pregnant.
No one at Petco said anything negative about her pregnancy. The only trouble she
felt was Nelson's avoidance and some trouble with Campos regarding ordering. Stueland
never submitted a complaint about Nelson's behavior toward her.
D
Stueland closed the store on Saturday, June 1, and Sunday, June 2. She opened
the store on Monday, June 3. No one went to the bank on Monday. Another manager,
Donald Nunez, closed the store Monday night and observed three deposits in the safe.
The following morning, Nelson opened the store at 6:00 a.m. When Stueland
came in at 9:00 a.m., Nelson asked her to go to the bank. Stueland described Nelson as
sounding frantic because they were remodeling and resetting the store displays, and
Nelson had been tending the register that morning. Nelson sounded like she was in a big
rush and asked Stueland to go to the bank as soon as Stueland came into the store.
When Stueland opened the safe, she saw only two deposits and remembered there
should have been three. She knew one was missing. Stueland later testified she thought
5
Nelson had the deposit up in the office. However, she did not ask Nelson about the
deposit or mention this to anyone at Petco until her deposition.
Stueland knew a missing deposit of approximately $2,000 was a serious issue.
She knew company policy required employees to let loss prevention know if they were
aware of a missing bank deposit. She knew she should have talked to Nelson about the
missing deposit.
However, Stueland did not mention the missing deposit to anyone or think about
the deposit again until June 13, 2013, when she received an e-mail asking about a missing
deposit for June 1. When Stueland read the e-mail, she and Nunez researched the deposit
log and tried to find the deposit slips. The deposit log showed the June 1 deposit was
placed in the safe, but there was no entry indicating anyone took it to the bank. Nunez
checked the safe to see if it had become stuck, but it was not there. Stueland responded
to the e-mail, but thought she was likely to get in trouble because she had taken the other
two deposits to the bank and she knew the third one should have been with the other two.
E
Nelson resigned on June 9, 2013, indicating she had accepted a position at another
company and provided two weeks' notice. Her last day was June 20, 2013.
On June 18, 2013, Nelson sent an e-mail to human resources regarding a number
of staffing issues, which included the fact Campos had also given notice. Nelson
expressed concern about sufficient coverage for the store. The e-mail mentioned an
employee who wanted to be considered for a promotion in grooming and stated, "she was
also interested in becoming a CADM when [Stueland] goes on maternity LOA (which
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she has stated will be in the next 2 weeks). I would support either position that [Chris
Caveney, the district manager] feels would be best to put her in." The e-mail went on to
say, "I still have not had any conversation with [Caveney] about my leaving or how the
store is going to be covered."
After this e-mail, Caveney, who oversees the Petco stores in the Inland Empire,
called and discussed the staffing issues with Nelson. During this conversation, they
discussed the fact Stueland was pregnant, her pregnancy was considered to be high risk,
she had doctors' appointments coming up, and her doctors said she would be going out
early for maternity leave. Nelson asked about covering Stueland's role in the interim.
Stueland saw the June 18, 2013, e-mail from Nelson to human resources stating
Stueland was going on maternity leave in two weeks and recommending a person to fill
the position during Stueland's leave. She agreed the majority of the June 18, 2013, e-mail
had nothing to do with her. However, Stueland stated she had not discussed taking a
leave of absence in two weeks and the e-mail upset her. She did not mention it to
anyone. Stueland testified she was afraid her job was threatened when she saw this e-
mail.
F
Justina Reading, a regional loss prevention manager for Petco, learned about the
missing deposit on June 14 or 15, 2013, from an e-mail from the sales audit department.
She then had a telephone conversation with Nelson. When she visited the Tyler store on
June 20, 2013, she reviewed the deposit log and saw a notation for a bank visit for the
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June 1 deposit was missing. She interviewed Stueland and Nunez. Reading and Caveney
also talked to Nelson, but determined she was not involved in the missing deposit.
Reading asked Nelson to serve as the witness and take notes for the first part of
Stueland's interview. She asked Caveney to witness the remainder of the interview when
she learned he was on-site.1
At the beginning of the interview, Reading mentioned she did not want to put
stress on Stueland because of her pregnancy. Stueland was not visibly pregnant at the
time of the interview.
Stueland denied taking the deposit and stated she had no idea what happened to it.
She could not offer an explanation as to why she did not notify anyone about the missing
deposit. She took the other two deposits to the bank, but remained quiet about the
missing deposit.
Reading explained Stueland was wrong in failing to communicate with
management about the missing deposit. Stueland acknowledged she should have told her
general manager, the district manager or loss prevention when she noticed there was a
deposit missing.
After the interview, Reading told Caveney she thought it was probable Stueland
took the money. Caveney could not tell, but thought there were obvious policy
violations.
1 Caveney had come to the store that day for a routine visit and because it was
Nelson's last day of employment.
8
Caveney decided to suspend Stueland for a week for her failure to communicate
about the missing deposit for over 13 days. He later determined Stueland's employment
should be terminated for serious policy violations regarding money handling and
reporting of a loss. Petco determined Stueland's role in the missing deposit was
egregious enough to warrant termination rather than a final written warning. Stueland
was terminated on June 27, 2013. Caveney never had any conversations with Stueland
about her pregnancy.
Caveney testified the decision to terminate an employee falls into his hands as the
district manager, but they were uncertain about who made the actual call to process the
separation. The general manager who processed the separation did not work at the
location. The computer system indicates Campos was the initiator of the information
about Stueland's termination and a general manager from another store entered the data.
The computer indicates the reason for termination was "theft/embezzlement/fraud."
Caveney recommended Nunez receive a final written warning for his role in the
missing deposit; however, this did not occur because the paperwork was not processed.
Nelson was not disciplined because she left the company. However, Caveney faulted
Nelson for failing to notice the missing deposit over a long period of time and indicated
he would have disciplined her if she remained with the company. Petco never found the
missing deposit.
G
Stueland filed a complaint for discrimination (Gov. Code, § 12940, subd. (a) et
seq.) and wrongful termination in violation of public policy alleging she was terminated
9
based on her pregnancy. The trial court granted Petco's motion for summary judgment
concluding Petco met its burden of establishing a legitimate, nondiscriminatory reason
for terminating Stueland's employment based on her admission she recognized a deposit
was missing and she failed to report it as required by her employer's policies. The court
also concluded Stueland failed to create a triable issue of fact that her termination was a
pretext for pregnancy discrimination. Stueland appeals the judgment after summary
judgment.
DISCUSSION
I
A defendant is entitled to summary judgment if it establishes a complete defense
to the plaintiff's cause of action or shows that one or more elements of the cause of action
cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal. 4th 826, 849.)
"On appeal after a motion for summary judgment has been granted, we review the
record de novo, considering all the evidence set forth in the moving and opposition
papers except that to which objections have been made and sustained. [Citation.] Under
California's traditional rules, we determine with respect to each cause of action whether
the defendant seeking summary judgment has conclusively negated a necessary element
of the plaintiff's case, or has demonstrated that under no hypothesis is there a material
issue of fact that requires the process of trial, such that the defendant is entitled to
judgment as a matter of law." (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 334
(Guz).) We liberally construe the evidence in support of the party opposing summary
10
judgment (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal. 4th 1138, 1142),
and assess whether the evidence would, if credited, permit the trier of fact to find in favor
of the party opposing summary judgment under the applicable legal standards. (Cf.
Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
II
A
"California's Fair Employment and Housing Act (FEHA) prohibits an employer
from terminating an employee because of her sex. (Gov. Code, § 12940, subd. (a).) 'Sex'
within the meaning of the FEHA includes 'pregnancy, childbirth, or medical conditions
related to pregnancy or childbirth.' (Id., § 12926, subd. (p).) FEHA provisions may
provide the policy basis for a claim for wrongful termination in violation of public
policy." (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal. App. 4th 1133, 1144.)
To establish a prima facie case of discrimination the plaintiff must provide
evidence (1) she was a member of a protected class, (2) she was performing competently
in the position she held, (3) she suffered an adverse employment action, and (4) some
other circumstance suggesting discriminatory motive. (Guz, supra, 24 Cal.4th at p. 355;
Rose v. Wells Fargo & Co. (9th Cir. 1990) 902 F.2d 1417, 1421 [age].) An employee
alleging discrimination based on pregnancy must show the employer knew she was
pregnant and evidence the employer had a pregnancy-discriminatory motive. (Chin et al.,
Cal. Practice Guide: Employment Litigation (The Rutter Group 2015) ¶ 7:295, p. 7-63;
Trop v. Sony Pictures Entertainment, Inc., supra, 129 Cal.App.4th at p. 1145 [must show
11
employer's knowledge of pregnancy]; Kelly v. Stamps.com Inc. (2005) 135 Cal. App. 4th
1088, 1101 [must show evidence of defendant's pregnancy discriminatory motive].)
When moving for summary judgment, an employer may proceed directly to the
second prong of the McDonnell Douglas2 test and present competent, admissible
evidence showing it took the challenged action for legitimate, not discriminatory reasons.
(Guz, supra, 24 Cal.4th at p. 357.) The employer's reasons need not have been wise or
correct. Rather, " 'legitimate' reasons [citation] in this context are reasons that are facially
unrelated to prohibited bias, and which, if true, would thus preclude a finding of
discrimination." (Id. at p. 358.)
"Once an employer satisfies its initial burden of proving the legitimacy of its
reason for termination, the discharged employee seeking to avert summary judgment
must present specific and substantial responsive evidence that the employer's evidence
was in fact insufficient or that there is a triable issue of fact material to the employer's
motive." (King v. United Parcel Service, Inc. (2007) 152 Cal. App. 4th 426, 433 (King).)
The plaintiff has the burden of rebutting the employer's showing "by pointing to evidence
which nonetheless raises a rational inference that intentional discrimination occurred."
(Guz, supra, 24 Cal.4th at pp. 357, 361.) "[A]n employer is entitled to summary
judgment if, considering the employer's innocent explanation for its actions, the evidence
as a whole is insufficient to permit a rational inference that the employer's actual motive
was discriminatory." (Id. at p. 361.) Thus, "even after the plaintiff has presented prima
2 McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.
12
facie evidence sufficient to establish an inference of prohibited discrimination in the
absence of explanation, and has also presented evidence that the employer's innocent
explanation is false, the employer is nonetheless necessarily entitled to judgment as a
matter of law unless the plaintiff thereafter presents further evidence that the true reason
was discriminatory." (Ibid.)
" '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 . . . .' " (Guz, supra, 24 Cal.4th at
p. 362.) A court may grant summary judgment for an employer "where, given the
strength of the employer's showing of innocent reasons, any countervailing circumstantial
evidence of discriminatory motive, even if it may technically constitute a prima facie
case, is too weak to raise a rational inference that discrimination occurred." (Ibid.)
B
In this case, Petco provided evidence it terminated Stueland for a legitimate
reason—an admitted breach of the company's policy for reporting missing funds.
Stueland knew a deposit was missing on June 4 when she opened the safe. She knew it
was a serious issue and she knew she should have said something to Nelson. However,
she remained quiet until she received an e-mail asking for information about the missing
deposit.
Stueland did not meet her burden of establishing Petco's reason for termination
was pretextual for a pregnancy discriminatory motive. The only evidence Stueland
13
presented of pregnancy discrimination was: (1) Nelson became less friendly toward her
after Nelson learned about Stueland's pregnancy (coincidentally around the same time
Nelson gave notice of her own intention to leave the company for personal reasons); (2)
Nelson mentioned Stueland's pregnancy and her anticipated leave of absence in the June
18 e-mail Nelson sent to human resources and a follow-up telephone call with Caveney
regarding staffing issues; (3) Campos became more forceful in requiring Stueland to
comply with policies for requesting supply orders; and (4) Reading mentioned in the
interview she did not want to put stress on Stueland because of Stueland's pregnancy.
None of this evidence, individually or collectively, raises a rational inference of a
pregnancy-discriminatory motive by the decision makers in this case. Stueland's
suspicions of improper motives for her termination are based primarily on conjecture and
speculation, which is insufficient to create a triable issue of fact. Although the evidence
must be viewed in the light most favorable to the plaintiff, the evidence remains subject
to scrutiny. A plaintiff's subjective beliefs "do not create a genuine issue of fact." (King,
supra, 152 Cal.App.4th at p. 433.) The "plaintiff's evidence must relate to the motivation
of the decision makers to prove, by nonspeculative evidence, an actual causal link
between prohibited motivation and termination." (Id. at pp. 433-434.) "[A] plaintiff's
'suspicions of improper motives . . . primarily based on conjecture and speculation' are
not sufficient to raise a triable issue of fact to withstand summary judgment." (Kerr v.
Rose (1990) 216 Cal. App. 3d 1551, 1564.)
Even assuming Nelson harbored some ill will toward Stueland related to her
pregnancy, there is no evidence Nelson was a significant participant in the decision to
14
terminate Stueland. Although Nelson witnessed and took notes during the first part of
Stueland's interview on Nelson's last day of employment, Nelson did not discuss
Stueland's employment with Reading or Caveney and was not involved in the decision to
suspend or terminate Stueland. Employment decisions related to loss prevention are not
generally made by the general manager at Petco. There is no evidence Reading or
Caveney, Nelson's superiors, acted as a conduit for Nelson's alleged prejudice. (See
DeJung v. Superior Court (2008) 169 Cal. App. 4th 533, 551.)
Nelson's communications about coverage for Stueland's maternity leave and
Reading's brief mention of Stueland's pregnancy at the beginning of the interview do not
show a discriminatory motive for termination. Unlike in Kelly v. Stamps.com Inc., supra,
135 Cal.App.4th at page 1099, there was no evidence anyone made derogatory remarks
about either Stueland's pregnancy or her anticipated leave of absence. There is also no
evidence Caveney or Petco's management made the decision to terminate Stueland in the
face of exemplary performance commendations. To the contrary, Stueland admitted she
knew the deposit was missing and did not report the loss.
Even if the date of the anticipated leave of absence was wrong or false, this does
not give rise to a reasonable inference of a discriminatory motive to overcome the
legitimate reason for termination proffered by Petco. "[A]n inference of intentional
discrimination cannot be drawn solely from evidence, if any, that the company lied about
its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination.
[Citation.] Proof that the employer's proffered reasons are unworthy of credence may
'considerably assist' a circumstantial case of discrimination, because it suggests the
15
employer had cause to hide its true reasons. [Citation.] Still, there must be evidence
supporting a rational inference that intentional discrimination, on grounds prohibited by
the statute, was the true cause of the employer's actions." (Guz, supra, 24 Cal.4th at
pp. 360-361.) In this case, there is no indication Petco lied about its reasons for
termination. Petco's consideration of staffing for an anticipated leave of absence,
whenever it was to occur, does not raise a rational inference of intended discrimination.
Stueland faults Caveney for amending his deposition response to indicate he made
the decision to terminate Stueland after initially stating there was uncertainty surrounding
who processed the termination. Based on our independent review of the entire record, we
cannot conclude Caveney's declaration and his amended deposition are inconsistent. In
both instances, Caveney indicated the ultimate decision fell on his shoulders, but there
was uncertainty about who completed the termination process in the computer system
because of other personnel changes. Even if the statements could be construed as
inconsistent, however, there is no evidence anyone who processed the separation
harbored a discriminatory motive in processing the termination. Contrary to Stueland's
suggestion in her opening brief, there is no evidence Nelson was the person who decided
to terminate Stueland or that she was a significant participant in the employment
decision. To the contrary, the evidence shows Caveney made the decision independently
to suspend and terminate Stueland based on the investigation. (Lakeside-Scott v.
16
Multnomah County (9th Cir. 2009) 556 F.3d 797, 805.)3 The only other individuals
involved in processing the separation were a general manager from another store and
Campos, the person who had been kind and caring about Stueland's pregnancy, but
expected her to follow the protocol for ordering supplies.
There is a difference between the computer notation that Stueland was terminated
for "Theft/Embezzlement/Fraud" related to a missing deposit and Caveney's statement he
decided to terminate Stueland for serious policy violations related to money handling as
to the same missing deposit. However, these are not incompatible or fundamentally
different justifications and do not show Petco's proffered legitimate reason for
termination was pretextual for discrimination. (See Horn v. Cushman & Wakefield
Western (1999) 72 Cal. App. 4th 798, 815 [the substance of the reason provided, not the
word choice, is critical].)
Stueland also contends the different treatment she received in the investigation and
in discipline from Nelson and Nunez supports an inference of a discriminatory motive.
We conclude such an inference is speculative and not based on the evidence. Petco
interviewed Nunez, the only other manager involved in the deposits. They also talked to
Nelson and ruled out her involvement. In fact, Stueland testified Nelson would not have
had any reason to open the safe on the morning of June 4. These other individuals were
not similarly situated. There is no evidence either of these other individuals knew a
3 "Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our own
statutes." (Guz, supra, 24 Cal.4th at p. 354.)
17
deposit was missing on June 4 and remained quiet until questioned by the sales audit
department. In contrast, Stueland admitted she knew a deposit was missing, she knew it
was a serious issue, she knew she should have discussed it with her manager, and she
failed to do so. Petco's investigation by neutral company personnel was " 'appropriate
under the circumstances' and provided [Stueland] 'a fair opportunity to present [her]
position and to correct or contradict relevant statements prejudicial to [her] case.' " (Serri
v. Santa Clara University (2014) 226 Cal. App. 4th 830, 875, fn. 21, citing King, supra,
152 Cal.App.4th at pp. 439-440.) It is pure speculation to suggest a difference in how
Stueland was interviewed and disciplined was not based on Petco's proffered legitimate
reason, but was pretextual for pregnancy discrimination.
Finally, the fact Stueland was terminated after she informed Petco she was
pregnant does not give rise to a discriminatory motive. Evidence of temporal proximity
alone is not sufficient to avoid summary judgment. "[T]emporal proximity, although
sufficient to shift the burden to the employer to articulate a nondiscriminatory reason for
the adverse employment action, does not, without more, suffice also to satisfy the
secondary burden borne by the employee to show a triable issue of fact on whether the
employer's articulated reason was untrue and pretextual. . . . Instead, an employee
seeking to avoid summary judgment cannot simply rest on the prima facie showing, but
must adduce substantial additional evidence from which a trier of fact could infer the
articulated reasons for the adverse employment action were untrue or pretextual."
(Loggins v. Kaiser Permanente Internat. (2007) 151 Cal. App. 4th 1102, 1112-1113.)
Stueland has not met this burden.
18
DISPOSITION
The judgment is affirmed. Petco shall recover its costs on appeal.
MCCONNELL, P. J.
WE CONCUR:
HALLER, J.
MCINTYRE, J.
19