Case Name: Catherine Martinez v. Quality Respite and Home Care, Inc.
Case No.: 2017-CV-308304

Motion for Summary Judgment, or in the Alternative, Summary Adjudication to the Complaint by Defendant Quality Respite and Home Care, Inc.

Factual and Procedural Background

This is an employment discrimination case. Defendant Quality Respite and Home Care, Inc. (“Quality”) provides caregivers for persons that are disabled or have special needs. (Complaint, ¶ 17.) Quality employed plaintiff Catherine Martinez (“Plaintiff”) as a “Caregiver” from June 2012 to July 2015. (Id. at ¶¶ 2, 17.) Her duties included visiting clients in their homes and providing assistance with activities for daily living, such as light housekeeping, meal preparation, grocery-shopping and running errands. (Id. at ¶ 17.) As part of her employment, Plaintiff was assigned to aggressive clients—e.g., those that bite, punch, kick, pull hair and throw physical tantrums—as well as non-aggressive clients. (Id. at ¶¶ 3, 19.)

In June 2015, Plaintiff learned she was pregnant and immediately informed her supervisor, human resources representative, and Quality’s owner. (Complaint, ¶ 20.) Thereafter, in order to protect her baby, Plaintiff requested an accommodation that Quality assign her non-aggressive clients for the duration of her pregnancy. (Id. at ¶¶ 4, 21.) Quality refused Plaintiff’s request and instead told her to immediately go out on disability leave. (Id. at ¶¶ 5, 22.) Plaintiff told Quality she needed her pay—especially now that she’s having a baby with all its attendant costs—and that she was physically able to do her job with the requested accommodation. (Id. at ¶¶ 6, 23.) In fact, Plaintiff told her human resources representative that her doctor approved her working with the requested accommodation. (Id. at ¶ 24.)

In July 2015, Plaintiff attended a company informational meeting on worker’s compensation. (Complaint, ¶ 25.) At the meeting, Plaintiff openly voiced her concerns about the risk of injury on the job while she was pregnant and its relationship to worker’s compensation. (Ibid.) Then, less than a week later, Quality terminated Plaintiff’s employment on July 25, 2015. (Id. at ¶ 27.) Plaintiff claims she was fired because of her pregnancy-disability. (Id. at ¶¶ 1, 28.)

Plaintiff exhausted her administrative remedies prior to filing, commencing, and serving the Complaint in this action. (Complaint, ¶ 30.)

On April 6, 2017, Plaintiff filed the operative Complaint alleging causes of action for: (1) disability discrimination; (2) failure to accommodate; (3) failure to engage in the interactive process; (4) retaliation; (5) wrongful termination; and (6) wrongful termination in violation of public policy.

On May 31, 2017, Quality filed its Answer setting forth a general denial and various affirmative defenses.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Currently before the Court is Quality’s motion for summary judgment, or in the alternative, summary adjudication to the Complaint. (Code Civ. Proc., § 437c.) Plaintiff filed written opposition. Quality filed reply papers. Trial is set for April 15, 2019.

Plaintiff’s Evidentiary Objections
As a preliminary matter, Plaintiff asserts various objections in her separate statement in support of her opposition to the motion. (See Plaintiff’s Separate Statement of Disputed Facts at pp. 2, 13, 38.)
Written evidentiary objections must be made in a separate document and must not be re-stated or re-argued in the separate statement. (Cal. Rules of Court, rule 3.1354(b).) Objections must identify the specific item of evidence that is objectionable. (Ibid.) Here, Plaintiff improperly asserts objections in her separate statement that she did not include in a separate document containing her evidentiary objections. Therefore, Plaintiff’s evidentiary objections do not comply with California Rules of Court, rule 3.1354(b).
In addition, evidentiary objections must be accompanied by a proposed order that complies with the requirements set forth in California Rules of Court, rule 3.1354(c). The rule requires an objecting party to file two separate documents, objections and a separate proposed order, both in one of the approved formats set forth in the rule. (See Cal. Rules of Court, rule 3.1354(b) and (c).) Here, Plaintiff fails to comply with the rule as she did not submit a separate document setting forth her evidentiary objections or a proposed order as provided in the rules of court.
Accordingly, the Court declines to rule on the objections based on the above-described defects. (Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format].)

Quality’s Evidentiary Objections

In reply, defendant Quality submits objections to Plaintiff’s evidence. “In granting or denying a motion for summary judgment or summary adjudication, 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.” (Code Civ. Proc., § 437c, subd. (q).) The Court sustains Objection Nos. 1-4, 9-15, and 18. The Court declines to rule on the remaining objections as they are not material to the outcome of the motion.

Legal Standard

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘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.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication…shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630 [internal citations and quotation marks omitted].)

First Cause of Action: Disability Discrimination

In reviewing motions for summary judgment/adjudication in employment discrimination cases, California courts employ the burden-shifting formula first articulated by the U. S. Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). (See King v. United Parcel Service (2007) 152 Cal.App.4th 426, 433, fn.2; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004 (Scotch).) Under McDonnell Douglas, on a motion for summary judgment brought against such a cause of action the plaintiff bears the burden of establishing a prima facie case of discrimination, and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. (Mixon v. Fair Employment and Housing Commission (1992) 192 Cal.App.3d 1306, 1318.)

“‘A defendant employer’s motion for summary judgment slightly modifies the order of these [McDonnell Douglas] showings.’” (Scotch, supra, 173 Cal.App.4th at p. 1005, quoting Kelly v. Stamps.com, Inc. (2005) 135 Cal. App. 4th 1088, 1097 (Kelly).) To prevail on its motion, the defendant employer is “required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff’s employment.” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247, citing Kelly, supra, 135 Cal. App. 4th at pp. 1097-1098.)

Defendant Quality argues that Plaintiff has no evidence to establish a prima facie case for disability discrimination. Alternatively, Quality contends it had legitimate nondiscriminatory reasons for terminating Plaintiff’s employment.

Prima Facie Case

“On a disability discrimination claim, the prima facie case requires the plaintiff to show ‘he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.’ [Citation.]” (Wills v. Super. Ct. (2011) 195 Cal.App.4th 143, 159-160.)

In the first cause of action, Plaintiff alleges she was a person with an actual and/or perceived disability within the meaning of FEHA as she was pregnant. (Complaint, ¶ 33.) Plaintiff claims defendant Quality discriminated against her because of her disability by terminating her employment on July 27, 2015. (Id. at ¶¶ 34-35.) As a result of this conduct, Plaintiff alleges she suffered damages including emotional distress, humiliation, mental anguish and financial losses. (Id. at ¶¶ 37-38.)

Quality argues Plaintiff cannot establish a prima facie case for discrimination because she has no evidence showing she was terminated from employment on the basis of her pregnancy. In support, Quality cites Plaintiff’s deposition testimony where she admits she did not have a disability related to her pregnancy until November 2015, after she was terminated on July 27, 2015. (See Quality’s Separate Statement of Undisputed Facts at No. 33 [Murphy Decl. at Ex. B. (Plaintiff’s Depo at pp. 141:25-142:2; 142:16-19)].) In particular, the following exchange took place between defense counsel and Plaintiff during her deposition:

Q: “Because earlier today you said you weren’t disabled from your pregnancy until November [2015], which was several months after you left Quality; right?

A: Correct.”

(Murphy Decl. at Ex. B [Plaintiff’s Depo at p. 142:16-19].)

Quality therefore claims Plaintiff was not terminated because of her pregnancy.

In addition, defendant Quality submits evidence demonstrating that Plaintiff was in fact terminated due to poor attendance and job performance. (See Quality’s Separate Statement of Undisputed Facts at No. 31 [Billings Decl. at Exhibit Y].) Plaintiff’s termination letter provides in relevant part that:
“On March 5, 2015 you failed to properly notify the office of your unscheduled absence, June 23, 2015 you were 20 minutes late to a scheduled visit, and twice on July 19, 2015 you failed to report to work prepared. These occurrences are a direct violation to the Quality Respite Attendance Policy and Illness and Injury Prevention Program.”

(Ibid.)

Such evidence sufficiently establishes that Plaintiff was not subjected to an adverse employment action (i.e. terminated) because of her pregnancy and thus Quality has met its initial burden on summary judgment. The burden now shifts to Plaintiff to raise a triable issue of material fact.

In opposition, Plaintiff does not dispute her statement during deposition where she testified that she did not have a disability related to pregnancy until November 2015, after she was terminated. (See Plaintiff’s Disputed Facts at No. 33 [Plaintiff’s response is “Undisputed”]. ) This concession is fatal to Plaintiff’s discrimination claim.

Nevertheless, Plaintiff argues the timing of her termination raises an inference of discrimination and thus a causal link exists between her termination and her pregnancy. (See OPP at p. 15:13-23.) The discriminatory motive is proved by showing that plaintiff engaged in protected activities, that his (or her) employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69.) The causal link may be established by an inference derived from circumstantial evidence, such as the employer’s knowledge that the employee engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory decision. (Ibid.; Jordan v. Clark (9th Cir. 1988) 847 F.2d 1368, 1376.)

Here, Plaintiff argues she openly voiced concerns about her pregnancy to Quality and then was terminated shortly thereafter. In support, Plaintiff points to her attendance at a company informational meeting addressing worker’s compensation on July 17, 2015. (See Plaintiff’s Additional Facts at No. 14.) It was at this meeting that Plaintiff posed the following question:

“If I went into labor at a client’s house, do I – do I call Kerry? What happens? Do I use my insurance? Does Worker’s Comp cover it? How do we go about that?”

(Ibid.; Park Decl. at Ex. 1 [Plaintiff’s Depo at p. 199:22-25].)

In response, Mike Ascunsion (“Ascunsion”), the boyfriend of Christine Shene (“Shene”), Quality’s owner, stated that, if she (Plaintiff) had been his employee, she would be fired on the spot for asking that question. (See Plaintiff’s Additional Facts at No. 15; Park Decl. at Ex. 1 [Plaintiff’s Depo at p. 36:14-20].) Plaintiff further testified that Shene did not stand up for her but instead nodded in agreement. (Ibid.) As the worker’s compensation meeting occurred on July 17, 2015 and Plaintiff was fired only ten days later on July 27th, she claims a causal nexus exists between her termination and her pregnancy to support a claim for discrimination.

This argument is not persuasive. As an initial matter, the statement made by Ascunsion constitutes inadmissible hearsay without any recognized exception. (See Quality’s Evid. Objection Nos. 15 and 18.) In any case, his statement is not evidence that defendant Quality intended to terminate Plaintiff’s employment as a result of her pregnancy. In particular, there is no evidence showing that Ascunsion was employed by Quality or, even if he was, that he had the requisite authority to terminate Plaintiff’s employment. Moreover, the fact that Shene allegedly “nodded” following the statement from her boyfriend is too speculative to constitute evidence that Quality intended to terminate Plaintiff based on her pregnancy. (See Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1453 [“A triable issue of fact can only be created by a conflict of evidence, not speculation or conjecture.”]; see also Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact].)

Accordingly, Plaintiff fails to provide evidence raising a triable issue of material fact and thus cannot establish a prima facie case for disability discrimination.

Legitimate/Non-Discriminatory Reasons for Termination

“Legitimate” reasons in this context are reasons that are factually unrelated to prohibited bias, and therefore, if true, would preclude a finding of discrimination. (Guz v. Bechtel Nat’l, Inc., (2000) 24 Cal.4th 317, 358.) This burden, like the prima facie case, has been found not to be onerous. (See Board of Trustees of Keene State College v. Sweeney (1978) 439 US 24, 25, fn. 1 [employer’s burden met “if he simply explains what he has done or produce(s) evidence of legitimate nondiscriminatory reasons”].)

As stated above, defendant Quality submits evidence demonstrating that Plaintiff was terminated due to poor attendance and job performance. (See Quality’s Separate Statement of Undisputed Facts at No. 31 [Billings Decl. at Exhibit Y].) Quality thus meets its initial burden in showing Plaintiff was terminated for legitimate and non-discriminatory reasons. The burden now shifts to Plaintiff to provide evidence of pretext.

Evidence of Pretext

To avoid summary judgment, the employee must “offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005 (Hersant).) The employee cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent. (Id. at p. 1005.) Rather, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons. (Ibid. [quotations and citations omitted].)

In opposition, Plaintiff first argues that defendant Quality’s reasons for termination are pretextual because she was performing her job at a high level up until she was terminated. In support, Plaintiff submits performance evaluations and a letter of recommendation from Michael Carter (“Carter”), Quality’s HR representative. (See Park Decl. at Exs. 3-4; Plaintiff’s Additional Facts at Nos. 3, 6.) Such evidence however is not admissible as it has not been properly authenticated and constitutes hearsay without any recognized exception. (See Quality’s Evid. Objection Nos. 1-4.) The performance evaluations and recommendation letter do not become admissible simply because they are attached to the declaration of counsel. (See Weil & Brown, CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2018) § 10:133, p. 10-61 [“The contents of documents attached to a declaration do not become admissible simply because incorporated by reference therein. If the documents are hearsay, they will be excluded—even if the rest of the declaration is admissible.”]; Keniston v. American Nat’l Ins. Co. (1973) 31 Cal.App.3d 803, 813.) Plaintiff also submits additional material fact no. 4 where she states she consistently earned “years of service awards” as she exceeded expectations. (See Plaintiff’s Additional Facts at No. 4.) This material fact however is not supported by the deposition testimony cited in Plaintiff’s separate statement.

Plaintiff next contends that termination was improper as defendant Quality failed to follow its own progressive discipline procedure. (See Park Decl. at Ex. 8; Plaintiff’s Additional Facts at Nos. 20-21.) In support, Plaintiff submits a copy of Quality’s Employee Manual. (Ibid.) The manual however is not admissible as it has not been properly authenticated and constitutes hearsay without any recognized exception. (See Quality’s Evid. Objection Nos. 9-10.) This argument therefore does not weigh in favor of pretext.

In addition, Plaintiff argues the reasons for her termination were pretextual as she was actually fired for not wearing booties when visiting a client on July 19, 2015. (See Plaintiff’s Additional Facts at No. 19.) Plaintiff claims defendant Quality unlawfully terminated her based on events that occurred more than four months before the booties incident. (Ibid.) However, as stated above, the fact that the employer’s decision for termination was wrong or mistaken does not establish pretext. (See Hersant, supra, 57 Cal.App.4th at p. 1005.)

Finally, Plaintiff argues there is evidence of pretext because of alleged misrepresentations by defendant Quality following her termination. For example, Plaintiff asserts Quality falsely represented to the Employment Development Department (“EDD”), a government agency, that she was terminated for multiple infractions, safety violations, and declining work. (See Park Decl. at Ex. 9; Plaintiff’s Additional Facts at No. 23.) Such reasons are not entirely inconsistent from Plaintiff’s termination letter which states she was fired for poor job performance. In any case, the Court cannot rely on Exhibit 9 as it constitutes hearsay without a recognized exception and is therefore inadmissible. (See Quality’s Evid. Objection Nos. 11-12.) Plaintiff also relies on email correspondence from defense counsel stating that Plaintiff was never fired by Quality but left the company voluntarily after declining several shifts. (See Park Decl. at Ex. 10; Plaintiff’s Additional Facts at No. 26.) This evidence also constitutes hearsay without any recognized exception and thus is inadmissible. (See Quality’s Evid. Objection Nos. 13-14.) Plaintiff then offers Carter’s deposition testimony where, when asked about the aforementioned statement by defense counsel, he agrees that the statement is accurate. (See Park Decl. at Ex. 7 [Carter Depo at p. 168:14]; Plaintiff’s Additional Facts at No. 26.) Plaintiff however fails to mention that Carter also testified that the statement by defense counsel may have been committed in error. (See Park Decl. at Ex. 7 [Carter Depo at p. 168:7].) Even if the Court were to accept Carter’s deposition testimony on this point, it does not constitute the kind of substantial evidence necessary to establish pretext.

Therefore, Plaintiff fails to raise any triable issue of material fact to defeat the motion with respect to her claim for disability discrimination.

Second Cause of Action: Failure to Accommodate

The second cause of action is a claim for failure to accommodate Plaintiff’s disability.

“A reasonable accommodation is a modification or adjustment to the work environment that enables the employee to perform the essential functions of the job he or she holds or desires. [Citation.] FEHA requires employers to make reasonable accommodation for the known disability of an employee unless doing so would produce undue hardship to the employer’s operation. [Citation.] The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee’s disability. [Citations.]” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373 (Nealy).)

In the second cause of action, Plaintiff alleges she requested a reasonable accommodation for her disability, including an assignment of non-aggressive clients. (Complaint, ¶ 44.) Defendant Quality allegedly refused to accommodate Plaintiff and instead terminated her on July 27, 2015. (Ibid.)

In order to prevail, there must be evidence that Plaintiff suffered from a disability to support relief under the second cause of action. This is problematic because, as stated above, Plaintiff confirmed during deposition that she was not disabled until November 2015, after her employment with Quality had terminated on July 27, 2015. (See Quality’s Separate Statement of Undisputed Facts at No. 33 [Murphy Decl. at Ex. B. (Plaintiff’s Depo at pp. 141:25-142:2; 142:16-19)].) Again, this fact remains undisputed by Plaintiff in opposition to the motion. As Plaintiff concedes there was no underlying disability during her employment, there is no evidentiary basis to support a claim for failure to accommodate. (See Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 176 [“A defendant moving for summary judgment is entitled to summary judgment if he or she conclusively negates an element of the plaintiff’s cause of action, or shows that the plaintiff cannot establish at least one element of the cause of action.].)

Third Cause of Action: Failure to Engage in the Interactive Process

The third cause of action is a claim for failure to engage in the interactive process.

“Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. [Citations.] FEHA requires an informal process with the employee to attempt to identify reasonable accommodations, not necessarily ritualized discussions. [Citation.] [¶] To prevail on a claim for failure to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred.” (Nealy, supra, 234 Cal.App.4th at p. 379.)

In the third cause of action, Plaintiff alleges she requested reasonable accommodations, including an assignment of non-aggressive clients. (Complaint, ¶ 51.) Instead of accommodating, defendant Quality allegedly terminated her employment. (Ibid.) Defendant Quality thus did not engage in a timely, good faith interactive process with Plaintiff to find an accommodation for her disability, short of terminating her employment. (Id. at ¶ 52.)

As stated above, the employer must engage in a good faith interactive process with the disabled employee for the purpose of exploring alternatives to accommodate the disability. The problem here is that Plaintiff has admitted, via her deposition testimony, that no such disability related to her pregnancy was present during her employment with defendant Quality. Rather, she concedes she was not disabled until November 2015, after her employment with Quality had terminated on July 27, 2015. (See Quality’s Separate Statement of Undisputed Facts at No. 33 [Murphy Decl. at Ex. B. (Plaintiff’s Depo at pp. 141:25-142:2; 142:16-19)].) Without an underlying disability during her employment, there would be no legal basis for defendant Quality to engage in a good faith interactive process intended to explore alternatives to accommodate Plaintiff. Accordingly, the Court finds no grounds to maintain a claim for failure to engage in the interactive process.

Fourth Cause of Action: Retaliation

The fourth cause of action is a claim for retaliation.

“[I]n order to establish a prima facie case of retaliation under the FEHA, a 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. [Citations.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

In the fourth cause of action, Plaintiff alleges defendant Quality violated FEHA by retaliating against her for requesting a reasonable accommodation for her disability. (Complaint, ¶ 58.) As a result of this retaliation, Plaintiff claims she was unlawfully terminated from her employment. (Id. at ¶ 64.)

Defendant Quality argues Plaintiff cannot establish a prima facie case for retaliation as no causal link existed between Plaintiff’s request for a reasonable accommodation for disability and the subsequent termination. Instead, as stated above, defendant Quality submits evidence demonstrating that Plaintiff was terminated due to poor attendance and job performance. (See Quality’s Separate Statement of Undisputed Facts at No. 31 [Billings Decl. at Exhibit Y].) Plaintiff fails to raise a triable issue of fact to defeat this argument for reasons explained above in addressing the discrimination cause of action. Accordingly, Plaintiff’s claim for retaliation fails.

Fifth and Sixth Causes of Action: Wrongful Termination in Violation of FEHA and Public Policy

In the fifth and sixth causes of action, Plaintiff alleges she was wrongfully terminated in violation of FEHA and public policy. “The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.)

With respect to these claims, Plaintiff alleges she was wrongfully terminated on the basis of her pregnancy. (Complaint, ¶¶ 67, 73, 74.) As stated above, Plaintiff admitted in her deposition that she was not disabled until November 2015, after her employment with defendant Quality had terminated on July 27, 2015. (See Quality’s Separate Statement of Undisputed Facts at No. 33 [Murphy Decl. at Ex. B. (Plaintiff’s Depo at pp. 141:25-142:2; 142:16-19)].) In addition, defendant Quality submits evidence demonstrating that Plaintiff was terminated due to poor attendance and job performance. (See Quality’s Separate Statement of Undisputed Facts at No. 31 [Billings Decl. at Exhibit Y].) Plaintiff does not raise a triable issue of fact to defeat this argument for reasons explained above in addressing the discrimination cause of action. Consequently, Plaintiff’s wrongful termination claims fail as a matter of law on summary judgment.

Punitive Damages Claim

Finally, defendant Quality moves to dispose of Plaintiff’s claim for punitive damages. Punitive damages may be awarded if the plaintiff proves by clear and convincing evidence that the defendant is guilty of fraud, oppression or malice. (Civ. Code, § 3294, subd. (a).) An employer is not liable for punitive damages for the acts of one of its employees unless the employer had advance notice of the unfitness of the employee and employed him or her with conscious disregard for the rights or safety of others, or authorized or ratified the wrongful conduct. (Civ. Code, § 3294, subd. (b).) For reasons stated above, none of Plaintiff’s claims survive the motion for summary judgment. Accordingly, there is no legal basis to support the claim for punitive damages.

Disposition

The motion for summary judgment is GRANTED.