Moving Party: Defendant Starbucks Corporation (“defendant”)
Resp. Party: Plaintiff Chavon James (“plaintiff”)

Defendants’ motion for summary judgment is DENIED. Defendant’s motion for summary adjudication as to the second cause of action is GRANTED; defendant’s motion for summary adjudication as to the remaining causes of action is DENIED.

Plaintiff’s Objections to Evidence:

Objection
1 OVERRULED
2 OVERRULED
3 OVERRULED
4 OVERRULED
5 OVERRULED
6 OVERRULED

BACKGROUND:

Plaintiff commenced this action on 12/26/12 against defendant for disability discrimination, harassment, and retaliation; violation of the California Family Rights Act (“CFRA”); and retaliation and wrongful termination in violation of public policy. Plaintiff was employed by defendant until her termination in February 2012. (Compl., ¶ 5.) Plaintiff alleges that she had mental disabilities, including depression and associated conditions. (Id., ¶¶ 6-7, 10.) Plaintiff alleges she was discriminated against, harassed, and retaliated against because of her disability and requests for CFRA leave. (See id., ¶¶ 15, 17, 32.)

SUMMARY

Plaintiff was habitually tardy during the course of her 3+ years of work at various Starbucks locations. She was written up for being tardy on numerous occasions. She was given a “final warning” on October 3, 2011. After the final warning, she is late at least 5 more times.

On January 9, 2012, James informs her employer that she suffers from depression. On January 12, 2012, Harwood, who had just taken over as store manager, recommends that James be fired.

There seems little doubt that James could have been fired for being habitually tardy over the course of these several years. However, she was not fired until her manager became aware that she suffered from depression and suicidal thoughts. Does this raise a triable issue of material fact as to whether James’ termination was pretextual?

Yes.

ANALYSIS:

First Cause of Action for Discrimination, Harassment, and Retaliation (FEHA)

As an initial matter, though plaintiff includes the word “harassment” in her first cause of action, there do not appear to be any facts alleged to support a harassment claim. Plaintiff’s opposition to the instant motion also fails to articulate a claim for harassment. Plaintiff does not dispute the facts raised by defendant on the harassment issue. (See DMF 107-115.) Further, plaintiff does not oppose the motion for summary adjudication as to the harassment claims. (Opp., p. 1, fn. 1.) Therefore, the Court will assume that plaintiff’s claim is only for discrimination and/or retaliation.

To make a prima facie showing of a cause of action for workplace discrimination, plaintiff must provide facts showing that: (1) plaintiff was a member of a protected class; (2) she was qualified for the position sought, or was performing competently in the position held; (3) she suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) An employee seeking recovery on a theory of unlawful discrimination must plead that she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment. (See Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.)

Defendant does not appear to contest that plaintiff had a disability, was qualified for the position, and suffered an adverse employment action (termination). Defendant makes arguments as to whether a reduction in hours was an adverse employment action. The Court need not reach this issue because plaintiff did not allege such conduct in her complaint. (See Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 10:51.1 [“The pleadings serve as the ‘outer measure of materiality’ in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings.”].) Moreover, plaintiff does not dispute any of the facts presented as to this issue. (See DMF/PMF 45-62.) Therefore, the Court assumes that plaintiff is not asserting that a change in hours constituted an adverse employment action and that the only adverse action is her termination. (See DMF 35 [plaintiff claimed during her deposition that she was discriminated against when her employment was terminated].)

Defendant’s argument against the first cause of action primarily focuses on whether it had a legitimate, non-discriminatory reason for terminating plaintiff. The following facts are undisputed. Plaintiff was hired by defendant in 2008 and began working at defendant’s store at the Beverly Center in Los Angeles. (DMF 1.) Plaintiff’s manager at the Beverly Center location was Joe Montoya, who plaintiff claims was “very fair.” (DMF 10-11.) Defendant requires that its employees arrive to work on time, and plaintiff understood the importance of maintaining regular and consistent attendance. (DMF 7-9.) In March 2008, Montoya issued plaintiff a corrective action for arriving 40 and 44 minutes late to work on two separate shifts. (DMF 12.) In August 2008, Montoya issued plaintiff a corrective action for arriving 23 minutes late to work. (DMF 13.) When plaintiff received corrective actions, she understood that a further violation could result in further discipline or termination. (DMF 14.)

Plaintiff worked at defendant’s store on Melrose Avenue in Los Angeles from January 2011 until her termination. (DMF 2.) Plaintiff’s manager was initially Tania Garcia, who plaintiff “really liked” and thought was “very fair and ethical.” (DMF 3-4.) In July 2011, Garcia issued plaintiff a corrective action for arriving “anywhere from three minutes to 43 minutes” late to work on several occasions. (DMF 15.) On October 3, 2011, plaintiff received a “Final Written Corrective Action” for arriving late to work on five separate occasions in September 2011. (DMF 16.)

In October 2011, plaintiff received a written performance review wherein she received the lowest possible rating for her attendance and punctuality and wherein it was noted that plaintiff “needs to work on time and attendance.” (DMF 17.) Plaintiff admitted that defendant put up with plaintiff’s attendance issues for a long time. (DMF 18.) Plaintiff arrived 61 minutes late for work on November 4, 2011. (DMF 19.) Plaintiff arrived 44 minutes late for work on December 1, 2011. (DMF 20.) Plaintiff arrived 59 minutes late for work on January 12, 2012. (DMF 22.)

Andrew Harwood was initially plaintiff’s assistant manager at the Melrose Ave store; he became the store manager effective January 2, 2012. (DMF 5-6.) After plaintiff arrived late for work on January 12, 2012, Harwood recommended that she be terminated. (DMF 23.) Harwood consulted with Tasha Shadowens of defendant’s human resources department, who stated on January 25, 2012, that she supported Harwood’s decision. (DMF 24.) On January 30, 2012, Harwood completed and signed a final corrective action form documenting plaintiff’s termination. (DMF 25.) That same day, Harwood recorded plaintiff’s separation in defendant’s computer system. (DMF 26.)

On January 31, 2012, plaintiff called defendant’s leave administration department to request leave. (DMF 33.) By February 3, 2012, defendant determined that the leave request could not be granted because of plaintiff’s termination. (DMF 34.) Plaintiff stated in her deposition that she does not know when the decision to terminate her was made. (DMF 38.)

These facts are sufficient to meet defendant’s burden of showing a legitimate reason for plaintiff’s termination.

Plaintiff argues that this purported reason is really a pretext for discrimination and retaliation. “Once the employer has articulated a legitimate, nondiscriminatory reason, the presumption of discrimination created by plaintiff’s prima facie case, ‘having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture.’ ” (Chin, et al., Cal. Prac. Guide: Employment Litigation (The Rutter Group 2013) ¶ 7:426.) The burden then shifts to the plaintiff to persuade the trier of fact that the legitimate reasons offered by the defendant were false, which creates an inference that the reasons were a pretext for discrimination. (Id., ¶ 7:435.) A plaintiff may prove pretext either indirectly (showing that the employer’s reason is “unworthy of credence”) or directly (showing that the employer was more likely motivated by discrimination). (Id., ¶ 7:437.)

Plaintiff first argues that pretext is shown because of the temporal proximity between her notification to defendant of her mental disability on January 6, 2012, and her termination.

Plaintiff claims she has suffered from depression her entire life. (DMF 27.) Plaintiff notified defendant of her depression in the summer of 2008 and sought assistance through defendant’s Employee Assistance Program. (PMF 10.) In April 2011 plaintiff requested a leave of absence due to her depression, and defendant approved this leave request. (PMF 18.) Plaintiff’s leave of absence request form noted that she suffered from depression. (See Pl. Exh. C.) Plaintiff only spoke with Garcia about this request. (DMF 29.) Plaintiff did not speak with her managers about her depression when she returned from her leave in June 2011. (DMF 30.)

Though plaintiff has evidence which suggests that Harwood was aware of plaintiff’s prior leave of absence request (PMF 21), Harwood stated at his deposition that he did not recall her requesting the time off for any medical reason. (See Pl. Exh. B, p. 75.)

Harwood became plaintiff’s manager at the beginning of January, 2012. One week later, Plaintiff asserts that Harwood was told about her mental health issues during a meeting on January 9, 2012. (DMF 43.) Plaintiff testified that they had a “brief conversation” about “what was going on with [her]” and that “he was aware what was going on.” (Pl. Exh. A, p. 179.) The document in plaintiff’s exhibit K states that Harwood had a conversation with plaintiff and asked what he could do to support her. (Pl. Exh. K.) In his deposition Harwood admitted that he was advised of plaintiff’s mental state by somebody else. (See Pl. Exh. B, p. 80-81.)

This evidence is sufficient to raise a triable issue of fact as to whether the person who recommended plaintiff’s termination, Harwood, first learned of plaintiff’s disability within a close temporal proximity to her termination.

Similarly, Plaintiff argues that pretext can be inferred from the fact that plaintiff had problems with tardiness for years and that it was not until after her notification in January 2012 that she was terminated.

Plaintiff met her burden of showing a triable issue of fact as to whether defendant’s proffered reason for her termination was a pretext for discrimination. Defendant’s request for summary adjudication of the first cause of action is DENIED.

Second Cause of Action for CFRA Violations

CFRA makes it unlawful for an employer to refuse to grant leave requested by an employee with more than 12 months of service with the employer and “who has at least 1,250 hours of service with the employer during the previous 12-month period.” (Gov. Code, § 12945.2(a).) Plaintiff does not dispute that she only worked approximately 1,050 hours for defendant in the 12 months prior to January 31, 2012, the day she requested leave. (See DMF 115-117.)

Further, it does not appear that plaintiff is contesting the motion for summary adjudication as to this issue. (Opp., p. 1, fn. 1.)

Defendant’s request for summary adjudication of the second cause of action is GRANTED.

Third Cause of Action for Retaliation and Wrongful Termination

Plaintiff alleges she was wrongfully terminated in violation of FEHA and CFRA. (See Compl., ¶¶ 44-45.) As discussed above, there are no triable issues of fact that defendant did not violate CFRA. However, there are triable issues of fact as to whether defendant violated FEHA. Therefore, the third cause of action does not necessary fail. (See, e.g., Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229.)

Defendant’s request for summary adjudication of the third cause of action is DENIED.

Punitive Damages

Punitive damages against a corporate employer for its knowledge and conscious disregard, authorization, ratification, or act of malice, oppression, or fraud “must be on the part of an officer, director, or managing agent.” (Civ. Code, § 3294(b).) “[T]he Legislature intended the term ‘managing agent’ to include only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy. The scope of a corporate employee’s discretion and authority under our test is therefore a question of fact for decision on a case-by-case basis.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567.) Defendant’s evidence is not sufficient to establish, as a matter of law, that no managers were involved in the decision to terminate her. (See DMF 250-261.) This issue should be decided by the jury at trial.

Defendant’s request for summary adjudication of plaintiff’s punitive damages claim is DENIED.

Plaintiff to prepare the Order.