17-CIV-05350 FAYE GO VS. CHILDCARE CAREERS, LLC, ET AL.

FAYE GO CHILDCARE CAREERS, LLC
DANIEL L. FEDER SHANE K. ANDERIES

MOTION FOR SUMMARY JUDGMENT TENTATIVE RULING:

Defendant’s motion for summary judgment or, in the alternative, summary adjudication, is GRANTED, in part, and DENIED, in part.

Plaintiff has demonstrated the existence of a triable issue of material fact with respect to the question of whether Defendant’s termination of Plaintiff’s employment was based on her pregnancy. Defendant acknowledges that each of Plaintiff’s causes of action turns on the question of improper or discriminatory motive for termination of Plaintiff’s employment. According to Defendant “For purposes of this pleading, the ‘material issue of fact’ is whether Plaintiff can point to any facts linking Defendant’s termination of Plaintiff to her pregnancy. From the facts presented above, she cannot, and, therefore, Summary Judgment and/or Summary Adjudication must be granted.” The court disagrees that Plaintiff has not raised disputed issues of material fact with respect to the question of whether Defendant’s termination of Plaintiff was due to her pregnancy.

Perhaps most significantly, the parties dispute when Defendant was informed about Plaintiff’s pregnancy. According to Plaintiff, she informed Defendant about her pregnancy on May 5, just three weeks prior to her first negative performance review on May 24. According to Defendant, however, Plaintiff did not inform Defendant of her pregnancy until May 30, after the first negative performance review. This disputed fact has material bearing on the question of whether Defendant’s termination was based on Plaintiff’s pregnancy. Defendant has not produced evidence of criticism of Plaintiff’s job performance prior to May 24. Although timing alone is not a sufficient indication of discriminatory intent, it is nonetheless a factor to be considered in determining the reason for Plaintiff’s termination. Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, 353–54, 77 Cal. Rptr. 3d 654, 674–75 (2008). Notably, Defendant has failed to acknowledge or address, either in its moving papers or in its reply to Plaintiff’s opposition, the dispute as to when Plaintiff informed Defendant of her pregnancy – i.e. before or after her May 24 performance review – and the potential impact of this dispute on the question of discriminatory intent.

Plaintiff has raised additional disputed issues of material fact. Plaintiff asserts in her declaration, supported by her deposition testimony, that her recruiting targets were changed without explanation after she informed Defendant of her pregnancy. [Plaintiff’s Decl., ¶ 12]

Further, Plaintiff has produced evidence, in the form of Ms. DeMent’s testimony, that her goal was changed from three to five hires per month to three to six hires per month without explanation after she informed Defendant of her pregnancy. Additionally, Plaintiff has produced evidence indicating that she was terminated prior to expiration of Defendant’s requirement that she recruit ten new hires in July. The parties dispute whether Plaintiff would have been able to reach this target, and both parties present evidence in support of their claim. Plaintiff has provided the names and hiring progress of specific individuals she would have been able to hire to meet her target before July 31. The dispute is material because, if Plaintiff would have been able to meet her target, the evidence that Defendant terminated her prior to giving her the chance to do so is highly suggestive of an improper motive. Further, any uncertainty as to whether Plaintiff would have met the ten-hire target should arguably be resolved in favor of Plaintiff, considering that Defendant terminated her employment approximately five days prior to the July 31 deadline. Ultimately, whether Plaintiff would have been able to meet the ten-hire target in July is a question of fact, to be resolved by a trier of fact.

Taken together, the disputed facts set forth above create a triable issue as to whether Defendant’s termination of Plaintiff was based on an improper and discriminatory motive.

The question, then, is whether Defendant is entitled to summary adjudication of any of Plaintiff’s causes of action for other reasons.

Defendant contends that Plaintiff cannot proceed on her third cause of action for retaliation in violation of FEHA because she has produced no evidence to support the allegation, as stated in her complaint, that she complained to her managers about retaliatory, discriminatory or harassing conduct she experienced based on her pregnancy. The court agrees. It appears from Plaintiff’s opposition, however, that she may be able to state a cause of action for retaliation in violation of FEHA based on her request for time off for doctor visits or anticipated leave. Accordingly, the court agrees that Defendant is entitled to summary judgment on Plaintiff’s third cause of action, as alleged in her complaint, but grants Plaintiff leave to amend the complaint to allege additional facts relating to her claim for retaliation.

Defendant further contends it is entitled to summary adjudication on Plaintiff’s fourth cause of action because she has not alleged or produced evidence demonstrating that she disclosed information regarding a violation of law, as required to assert a claim under Labor Code § 1102.5. Plaintiff has not responded to this argument. As a result, the court agrees that Defendant is entitled to summary judgment on Plaintiff’s fourth cause of action for violation of Labor Code § 1102.5.

Finally, Defendant contends Plaintiff cannot proceed on her fourth and fifth causes of action because they are duplicative of her other causes of action. The court disagrees. Plaintiff’s fifth cause of action for wrongful termination in violation of public policy is a common law cause of action distinct from any statutory cause of action for wrongful termination. Stevenson v. Superior Court, 16 Cal.4th 880, 941 P.2d 1157 (1997). Further, Plaintiff’s 5th & 6th causes of action allege wrongful termination, as opposed to wrongful discrimination (1st & 2nd causes of action) or wrongful retaliation (3rd & 4th causes of action).

For the foregoing reasons, Defendant’s motion for summary adjudication on Plaintiff’s fourth cause of action for violation of Labor Code § 1102.5 is GRANTED. Defendant’s motion for summary adjudication with respect to Plaintiff’s third cause of action for retaliation is GRANTED with leave to amend. Defendant’s motion for summary adjudication on Plaintiff’s remaining causes of action is DENIED.

Plaintiff’s objections to Defendant’s evidence in support of its motion are OVERRULED. Defendant’s objections to Plaintiff’s evidence in support of her opposition are also OVERRULED. Notwithstanding these evidentiary rulings, however, the court reaches the same conclusion with respect to Defendant’s motion regardless of whether the challenged evidence is considered.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.