hildelisa medina v. aderans hair goods inc

Case Number: BC623203 Hearing Date: June 18, 2018 Dept: 32

hildelisa medina,

Plaintiff,

aderans hair goods inc., et. al.

Defendants.

Case No.: BC623203

Hearing Date: June 18, 2018

[TENTATIVE] order RE:

(1) BOSLEY, INC’S MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

(2) ADERANS AMERICA HOLDINGS, INC.’s MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

BACKGROUND

This action is brought by Plaintiff Hildelisa Medina (“Plaintiff”) against Defendants Aderans Hair Goods, Inc. (“ADH”); Bosley Inc. (“Bosley”); and Aderans America Holdings, Inc. (“AAH”). Plaintiff’s Complaint alleges eighteen causes of action: (1) family and medical leave discrimination in violation of FEHA; (2) family and medical leave discrimination in violation of public policy; (3) retaliation and/or harassment in violation of FEHA; (4) retaliation and/or harassment in violation of public policy; (5) pregnancy discrimination in violation of FEHA; (6) pregnancy discrimination in violation of public policy; (7) violation of California Pregnancy Disability Leave Gov Code §12945(a); (8) retaliation for request for pregnancy disability leave Gov Code §12945(a); (9) retaliation for complaints of pregnancy discrimination and/or harassment in violation of FEHA; (10) retaliation for complaints of pregnancy discrimination and/or harassment in violation of public policy; (11-12) pregnancy harassment in violation of FEHA against employer; (13) disability discrimination in violation of FEHA; (14) disability discrimination in violation of public policy; (15) retaliation for requests for accommodation, complaints of disability discrimination and/or harassment in violation of FEHA; (16) retaliation for requests for accommodation, complaints of disability discrimination and/or harassment in violation of public policy; (17) failure to accommodate in violation of FEHA; and (18) failure to everything reasonably necessary to prevent discrimination, harassment and retaliation from occurring in violation of FEHA.

EVIDENTIARY OBJECTIONS

The Court rules on the Plaintiff’s evidentiary objections in opposition to Bosley’s MSJ as follows:

Overruled.

The Court rules on the Plaintiff’s evidentiary objections in opposition to AAH’s MSJ as follows:

Overruled.

DISCUSSION

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP § 437c(c).) There is a triable issue of 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. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) On its motion for summary judgment, the plaintiff maintains the burden that each of the elements has been proved and that there is no defense available, while on its motion the defendant must persuade the court that one of the elements in question cannot be established or that there is a complete defense. (Id.) Summary judgment motions are defined by the material allegations in the pleadings. (Baptist v. Robinson (2006) 143 Cal. App. 4th 151, 159.)

Defendant Bosley Inc. (“Bosley”) and Defendant Aderans America Holdings, Inc. (“AAH”)(collectively “Defendants”) move for summary judgment on the grounds that Plaintiff has never been an employee of Bosley or AAH. Defendants contend all causes of action asserted against Bosley and AAH, which require an employment relationship, fail as a matter of law. Bosley sets forth evidence that Bosley Inc. and AHG are both subsidiaries of Aderans Co. Ltd., but they operate independently. (Bosley O’Donnell Decl. ¶4-5.) AAH is primarily a stock holding company that provides management services to Aderans Co., Ltd’s US subsidiaries. (AAH O’Donnell Decl. ¶4.) At no point has Plaintiff ever been an employee of Bosley. (Bosley UMF 1.) At no point has Plaintiff ever been an employee of AAH. (AAH O’Donnell Decl. ¶5.) At no point did Plaintiff ever receive a paycheck from Bosley or AAH. (Plaintiff Depo 22:9-20). The elements of each cause of action asserted by Plaintiff against Bosley and AAH assume and/or require an employer/employee relationship. (CACI No. 2505, 2527, 2540, 2546, 2600 and 2601.)

In opposition, Plaintiff contends that the label of the relationship between the entities does not control and will be ignored where the evidence of their actual conduct establishes a different relationship exists. (Castaneda v. Ensign Grp., Inc. (2014) 229 Cal.App.4th 1015, 1021.) Plaintiff contends that there is evidence of “centralized information technology, human resources, accounting, payroll” and other key services which demonstrate joint and centralized control of Plaintiff’s employment. (Id. at 1020.) However, during Plaintiff’s deposition she stated she was never employed by Bosley or AAH. (Plaintiff’s Depo 22:9-11, 22:15-17.)

As such, Defendant Bosley’s and Defendant AAH’s motions for summary judgment are GRANTED.

HILDELISA MEDINA,

Plaintiff,

ADERANS HAIR GOODS INC., et. al.,

Defendants.

Case No.: BC623203

Hearing Date: June 18, 2018

[TENTATIVE] order RE:

(1) ADERAN’S HAIR GOODS, INC. MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

BACKGROUND

EVIDENTIARY OBJECTIONS

The Court rules on the Plaintiff’s evidentiary objections as follows:

Sustained.

Overruled.

Sustained.

Overruled.

Sustained.

Overruled.

Sustained.

Overruled.

Sustained.

Overruled.

Sustained.

Overruled.

Pursuant to CCP § 437c(q), “the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” The Court finds that Defendants’ evidentiary objections are immaterial to the disposition of this motion. All objections are preserved for appellate review.

DISCUSSION

California has adopted a three stage burden-shifting test established by the United State Supreme Court for trying claims of discrimination. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) A three-part analysis for cases based on indirect or circumstantial evidence establishes that (1) the complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for its actions; and (3) the complainant must prove that this reason was a pretext to mask an illegal motive. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792; Mixon v. Fair Employment and Housing Comm’n (1987) 192 Cal.App.3d 1306, 1317.) While the Plaintiff’s prima facie burden is not onerous, he must at least show actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a prohibited discriminatory criterion. (Guz at 355.)

In order to establish pretext, Plaintiff cannot simply rely on speculation. (Hersant v. Cal Dept of Soc. Servs. (1997) 57 Cal.App.4th 997, 1009.) Rather, Plaintiffs “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions” in the employer’s proffered legitimate reasons that a reasonable fact finder could rationally find them unworthy of credence and therefore infer that the employer did not act for the stated nondiscriminatory purpose.” (Morgan v. University of Cal. Regents (2000) 88 Cal.App.4th 52, 75.) Legitimate reasons are reasons that are facially unrelated to the prohibited bias, and which, if true, would thus preclude a finding of discrimination. (Guz at 358.)

Defendant Aderans Hair Goods, Inc. (“AHG”) is a retailer and wholesaler of wigs for men and women. Around November 2007, Plaintiff was hired as the Assistant Director of Finance and on or around June 2010, Plaintiff was promoted to Finance Manager. Her duties were payroll administration and accounting general ledger. (O’Donnell Decl. ¶7.) Defendant AHG demurs on the grounds that even if Plaintiff could establish a prima facie case for each of the allegations, Plaintiff cannot establish AHG’s non-discriminatory reason for (1) changing her job duties and job title; and (2) terminating her employment were pretext. Further, Defendant AHG contends many of the claims must fail as a matter of law due to Plaintiff’s failure to exhaust administrative remedies.

Plaintiff Failed to Exhaust Administrative Remedies

Plaintiff has the burden to plead and prove administrative exhaustion or exceptions thereto. (Holland v. Union Pacific R. Co. (2007) 154 Cal.App.4th 940, 945.) In order to bring a claim for violation of the FEHA, a plaintiff must exhaust administrative remedies as to each defendant by filing an administrative complaint with the DFEH within one-year of the unlawful act, and obtaining a right-to-sue notice. (Gov. Code § 12960(d).) After a right to sue letter is issued, Plaintiff then has an additional year in which to file a civil complaint. (Gov. Code § 12965(d)(2).)

Defendant contends that Plaintiff’s first, third, thirteenth, fifteenth, seventeenth and eighteenth causes of action fail because Plaintiff did not exhaust her administrative remedies since the Complaint filed with DFHE was solely based on her pregnancy. (UMF 15). Defendant contends there was no mention of any other protected status or disability and that the last alleged unlawful practice occurred on June 1, 2015, Plaintiff’s termination, thus Plaintiff cannot now file a claim with DFEH since the one year limitation has passed.

In opposition Plaintiff alleges that in her October 18, 2015 DFEH complaint, Medina alleged that she suffered from a disability, medical condition, went on family care or medical leave, was denied a reasonable accommodation, denied a work environment free of discrimination and/or retaliation, and was discharged by defendant in part because of her engagement in a protected activity and her disability. However, Plaintiff does not attach her DFEH charge for the Court’s consideration (there is no Exhibit 15 attached to Plaintiff’s compendium of evidence).

As such, the motion for summary adjudication is GRANTED to as to Plaintiff’s first, third, thirteenth, fifteenth, seventeenth and eighteenth causes of action.

Discrimination

To establish a prima facie case of discrimination, plaintiff must provide evidence that (1) plaintiff was a member of a protected class; (2) plaintiff was qualified or competent for the position sought or performed; (3) plaintiff suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 355.)

Family Care/Medical Leave (“FMLA”) Discrimination

Defendant contends that a prima facie showing of California Family Rights Act discrimination requires evidence the Defendant refused to grant Plaintiff’s request for family care/medical leave or refused to return Plaintiff to the same or a comparable job when her family care/medical leave ended. (CACI No. 2600) Plaintiff provides evidence that she was a member of a protected class in that she took FMLA leave for bunion surgery related to pregnancy on or around May 22, 2015, and that she was terminated in June 2015. (Opp Exh. 1, 107:20-21.) Defendant contends that Plaintiff was approved all of the leave requested by Plaintiff and that she returned to the same position as prior to her maternity leave. However, Plaintiff was terminated after her FMLA leave. Plaintiff provides evidence that she received above average performance reviews prior to taking leave. (Opp Exh. 4.) Plaintiff sets forth evidence that she requested specific guidelines to following for collections. (Opp Exh. 8.) Plaintiff then sets forth evidence that she received a Final Warning based on violations of the collections policy, which she alleges she did not receive a copy of. (Opp Exh. 10, 11).

However, Defendant contends that Plaintiff cannot establish pretext because she was fired as a result of her violation of strict company policy on confidentiality. However, Plaintiff provides evidence that O’ Donell testified there is nothing in the policy that specifically states that e-mailing documents to yourself would constitute termination, but that Human Resources determined it was an egregious violation of the policy. (Exh 3 99:5-14.) Further, Plaintiff provides evidence that O’Donnell did not know how to handle the situation when she was told by Mona Lakhanpal that Plaintiff was sending herself emails containing the aging report for the company. (Exh 14; 15). As such, Plaintiff has established a prima facie case, and a triable issue of material fact remains whether Defendant’s reasons for terminating Plaintiff from employment was pretext.

As such, Defendant’s motion for summary adjudication as to the second cause of action for Family and Medical Leave Discrimination/Interference in Violation of Public Policy is DENIED.

Pregnancy and Disability Discrimination

Defendant contends a prima facie showing of Pregnancy and Disability Discrimination requires evidence that Plaintiff’s history of physical condition was a substantial motivating reason for Defendant’s decision to discharge/refuse to hire or take any other adverse employment action against Plaintiff. (CACI No. 2500 & 2540). Defendant contends that there is no evidence of any adverse action being taken against Plaintiff prior to her termination for cause. However,

Lakhanpal testified she decided to make Plaintiff the collections manager shortly before Plaintiff returned from maternity leave. (Opp Exh 2, 72:8-12.) Plaintiff was then moved to a cubicle from a shared office. (Opp Exh. 2, 72:15-17.) Plaintiff testified that no one told her prior to maternity leave that her job responsibilities were going to change from being a general finance manager to being responsible for overseeing accounts receivable. (Opp Exh 1, 34:5-10.) Plaintiff testified her job duties changed when she came back from maternity leave. (Opp Exh 1, 29:10-15.) Plaintiff testified that as a result of working on collections she felt she was receiving a demotion, because she was receiving directions from an employee whom she used to supervise. (Opp Exh 1, 80:13-14.)

Defendant contends that Plaintiff cannot overcome the documentary evidence that her duties were changed in August 2013 and confirmed in January 2014, prior to her pregnancy leave, due to a company reorganization. (Exh. E.) Defendant sets forth evidence that the Plaintiff’s role changed based on transferring payroll duties to an outside third-party vendor and invoicing duties to the Assistant Controller. (O’Donnell Decl. ¶9.) Defendant’s Human Resources director declares that Plaintiff’s role changed on August 20, 2013, but as of this date Plaintiff had not reported her pregnancy to human resources. (O’Donnell Decl. ¶¶8, 10.) Defendant contends that aside from the change in duties Plaintiff had been assigned in August 2013, when Plaintiff returned from maternity leave there were not changes to Plaintiff’s rate of pay, schedule, seniority, benefits or other employment terms. (O’Donnell Decl. ¶14.) In Plaintiff’s testimony she states that during a staff meeting, the Director of Finance told everyone that Plaintiff’s job duties were going to change because Plaintiff was going on maternity leave. (Exh. D 69:9-12.)

As such, a triable issue of material fact remains as to whether Defendant’s actions were adverse employment actions and whether Defendant’s reasons for doing so were pretext. Thus, the Defendant’s motion for summary adjudication on the fifth, sixth and fourteenth causes of action are DENIED.

Retaliation

To establish a prima facie case of retaliation a plaintiff must show (1) that he engaged in a protected activity, (2) that her employer subjected her to an adverse employment action, and (3) that there is a causal link between the two. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)

The Court finds Plaintiff sets forth a prima facie case of retaliation. When Plaintiff returned from leave for FMLA then she complained to Shana and Michael in HR and the CEO that she was being discriminated against. (Opp Exh 1, 83:3-14.) Plaintiff testified that she complained to HR that she was being treated unfairly. (Exh 1, 99:1-6; 141:5-17; 171:9-21.) Plaintiff wrote a letter on April 10, 2015 detailing the alleged discrimination she was experiencing. (Opp. Exh. 12.) Plaintiff contends that for these reasons she was terminated. Defendant sets forth the same arguments in its motion for summary adjudication of Plaintiff’s retaliation claims as the Plaintiff’s discrimination claims.

As such, for the reasoning stated in the above section on discrimination the Defendant’s motion for summary adjudication as to the third, fourth, ninth, tenth and sixteenth causes of action alleging retaliation are DENIED.

Harassment

The elements of harassment are (1) the employer harassed employee; (2) on the basis of race, sex, or other grounds specified in Gov.Code § 12940(h); and (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment. (Etter v. Veriflo Corp. (1998) 67 Cal. App. 4th 457, 465.) In determining what constitutes sufficiently pervasive harassment, the Courts have held that acts of harassment cannot be occasional, isolated, sporadic or trivial, rather the Plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. (Sheffield v. Dept. of Social Services (2003) 109 Cal.App.4th 153, 161.)

Plaintiff’s First Amended Complaint alleges that “Defendant EMPLOYER engaged in harassing conduct directed toward Plaintiff MEDINA…which included, but was not limited to: verbal harassment such as epithets, derogatory comments, and slurs; physical harassment, such as an assault, interference with normal work, and interference with normal movement; visual forms of harassment such as derogatory posters, cartoons and drawings; false criticisms and accusations of poor performance; and/or ostracism, taking away of job benefits, duties and responsibilities.” Plaintiff does not set forth evidence of any of these allegations. Defendant contends any alleged harassment was not severe or pervasive if this allegation stems from Plaintiff’s interactions with Ms. Lakhanpal regarding the warnings she received, the request to remove Plaintiff’s heater and the impromptu dress code joke that Plaintiff was allegedly excluded from. Defendant sets forth evidence that the company policy regarding heaters was applied uniformly. (O’Donnell Decl. ¶23.) Plaintiff details an incident that occurred on or around July 9, 2014, where the accounting team wore the same colored clothes to work but Plaintiff was excluded. (O’Donnell Decl. ¶24.) However, Plaintiff cannot make a prima facie case for harassment because she does not set forth evidence that the alleged conduct was severe or pervasive. As such, the motion for summary adjudication as to Plaintiff’s eleventh and twelfth causes of action is GRANTED.

Violations of California Pregnancy Disability Leave (Cal. Gov. Code §12945(a))

Defendant contends that Plaintiff cannot prove any violations of the provisions of Gov Code §12945(a) because Plaintiff was approved all of the leave she requested from AHG, AHG did not refuse to pay coverage for Plaintiff, and no request for a reasonable accommodation was ever made to Plaintiff by AHG. (O’Donnell Decl. ¶26.)

Cal. Gov. Code §12945 provides:

“…Each of the following shall be an unlawful employment practice, unless based upon a bona fide occupational qualification:

(1) For an employer to refuse to allow an employee disabled by pregnancy, childbirth, or related medical condition to take a leave for a reasonable period of time not to exceed fourth months and thereafter return to work, as set forth in the commission’s regulations….Reasonable period of time means that period during which the employee is disabled on account of pregnancy, childbirth, or a related medical condition. An employer may require an employee who plans to take a leave pursuant to this subdivision to give the employer reasonable notice of the date the leave shall commence and the estimated duration of the leave. ….

(2)(A) For an employer to refuse to maintain and pay for coverage for an eligible employee who takes leave pursuant to paragraph (1) under a group health plan…, for the duration of the leave…

(3)(A) For an employer to refuse to provide reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or a related medical condition, if the employee so requests, with the advice of the employee’s health care provider…

(4) For an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section…”

Defendant sets forth evidence that they granted Plaintiffs request for maternity leave on January 30, 2014 for the period of February 10, 2014 to April 19, 2014. (O’Donnell Decl ¶13.) Plaintiff was also approved leave from March 10, 2014 to May 4, 2014 for medical conditions related to her pregnancy. (Ibid.) Plaintiff does not set forth evidence to dispute these contentions or create a triable issue of material fact. As such, the Defendants motion for summary adjudication as to the seventh and eighth causes of action is GRANTED.

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hildelisa medina v. aderans hair goods inc

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