APPEAL from a judgment of the Superior Court of Los Angeles County, Aurelio Munoz, Judge. Judgment is reversed and remanded. (Los Angeles County Super. Ct. No. BC341303).
The opinion of the court was delivered by: Croskey, Acting P. J.
Opinion following rehearing
CERTIFIED FOR PUBLICATION
This is an appeal from a summary judgment granted to an employer after one of its former employees filed suit alleging the employer fired her because she was pregnant. The plaintiff alleges violations of the California Fair Employment and Housing Act (Gov. Code, §12900 et seq.), specifically sections 12940 (setting out specific types of unlawful conduct by employers, labor organizations, employment agencies and others), and 12945 (relating to pregnancy leave and other accommodations).*fn1
To support its summary judgment motion, the employer presented evidence to the trial court that it terminated plaintiff for a valid reason-it had obtained information that plaintiff falsified her work time records. Plaintiff opposed the motion by presenting evidence that (1) she had not falsified her time records, (2) she was fired soon after she disclosed she was pregnant, and (3) defendant had fired other women after they disclosed they were pregnant. The latter assertion was based on declarations from the other women.*fn2
Defendant made evidentiary objections to these declarations, and the declarations were addressed by both parties at the hearing on the motion for summary judgment. However, the reporter's transcript shows that the trial court made no evidentiary rulings at the hearing, and the trial court's minute order for the summary judgment motion, dated January 16, 2007, does not contain explicit evidentiary rulings. Instead, the minute order shows that plaintiff's evidence of these other firings of pregnant women was implicitly accepted by the trial court, but found to be insufficient to justify denying defendant's motion for summary judgment.
Defendant served a notice of ruling that does not contain any reference to its evidentiary objections. Later however, defendant submitted an attorney order on the summary judgment motion, which the court signed and filed on March 5, 2007, nearly two months after the hearing that motion. Despite the fact that the minute order indicates otherwise, the attorney order states that the court sustained defendant's objections to the declarations. The court signed the attorney order despite plaintiff's filed objection in which, among other things, she argued that the court had never made an express ruling on defendant's evidentiary objections. The admissibility of these declarations of defendant's former employees, along with the question as to whether triable issues of material fact were disclosed by the evidence submitted by the parties, constitute the appellate issues before us in this matter.
We conclude that the contested declarations are admissible and they constitute substantial circumstantial evidence which is sufficient to raise triable issues of material fact as to the reason for plaintiff's termination. We further conclude that other evidence in the record is also sufficient to raise triable issues regarding plaintiff's termination. Therefore, the summary judgment must be reversed and the matter remanded for further proceedings.
1. Allegations in the Operative Complaint
Dewandra Johnson is the plaintiff in this case. The defendant is the United Cerebral Palsy/Spastic Children's Foundation of Los Angeles and Ventura Counties (which also does business as United Cerebral Palsy, Inc., hereinafter, defendant). Two individuals were also named as defendants in plaintiff's operative (second amended) complaint. However, plaintiff ultimately dismissed many of the 12 causes of action in that complaint, and the individual defendants were not named in the remaining causes of action. Therefore, those individuals are not respondents in this appeal. They are, however, important non-parties in the case. They are Raquel Jimenez, plaintiff's supervisor and a Program Manager at the defendant foundation, and Linda Jones, defendant's director of Client Living Services and Jimenez's supervisor.
The causes of action that remain in the operative complaint (hereinafter, complaint) allege violations of the California Fair Employment and Housing Act and violations of public policy. Specifically, plaintiff asserted causes of action for discrimination based on sex (pregnancy) and discrimination based on disability (pregnancy) in violation of section 12940 and in violation of public policy; violation of California's law on pregnancy disability leaves (§ 12945); failure to take reasonable steps to prevent discrimination and retaliation (§ 12940); and wrongful termination in violation of public policy.
The complaint alleges all of the following. Defendant is a national charity which assists people with disabilities, including disabilities other than cerebral palsy. Plaintiff began her employment with defendant in November 2004 and was assigned to the position of a caregiver. In May 2005 she was promoted to the position of counselor. She was in her mid-twenties at the time. On or about July 31, 2005, plaintiff contacted Raquel Jimenez (Jimenez) and related that she was ill and needed to seek medical attention related to her pregnancy. On August 1, 2005, plaintiff's doctor diagnosed her with conditions that rendered her disabled by her pregnancy. Plaintiff alleges that this entitled her to protection under section 12945, including the right to take a pregnancy disability leave and the right to return to her position at the end of the leave. Plaintiff phoned Jimenez that same day and left a message stating that her doctor had prescribed bed rest and instructed her not to return to work until August 8, 2005. Jimenez sent plaintiff a certified letter indicating that plaintiff would need a doctor's note stating she is to be out until August 8, 2005, and a doctor's note releasing plaintiff to come back to work.*fn3 *fn4
Plaintiff further alleges that on August 8, 2005, she called Jimenez and left a message stating that her doctor had cleared her to come back to work on August 9, 2005. Jimenez responded by phoning plaintiff and telling her to meet Jimenez at the defendant's Santa Monica facility on August 9, 2005 at 1:00 p.m. At their meeting, Jimenez informed plaintiff she was being terminated from employment and should return various materials to defendant, such as a pager and keys, and patient folders that plaintiff had in her possession. Plaintiff was given her final paycheck and a letter of termination.
The complaint alleges on information and belief that plaintiff was terminated because she was pregnant, and because she was disabled by the pregnancy and took a leave relating to her pregnancy. The complaint further alleges that Linda Jones (Jones) participated in the termination after Jones was informed that plaintiff's pregnancy condition required medical leave, and it alleges on information and belief that Jones had a discriminatory animus against pregnant women and a pattern and practice of engaging in adverse treatment of them such that she would create a justification for their termination. Also alleged on information and belief is that Jimenez had a discriminatory animus against pregnant women and heterosexual women. The complaint alleges that Jimenez disclosed to plaintiff and other employees that she is a lesbian, she gave preferential treatment to gay and lesbian employees and specifically recruited gays and lesbians to fill positions within the defendant foundation, and she made derogatory remarks regarding pregnant women and heterosexual women.
2. Theory of Defendant's Summary Judgment Motion
The theory of defendant's summary judgment motion is that defendant conducted a good faith investigation into plaintiff's time sheets and billing records for a particular workday; it had reason to conduct the investigation because plaintiff was not at a client's residence when she said she would be there; from the investigation, defendant came to the conclusion that plaintiff, an hourly employee, falsified a time sheet and billing record in an attempt to collect wages she did not earn; and it was on that basis only that defendant discharged her. Regarding the evidence that plaintiff presented to show that she was fired based on discrimination, defendant argues such evidence is not sufficient to support a finding by a trier of fact that the real reason plaintiff was discharged was because of discriminatory animus against pregnant employees.
3. Evidence Presented by the Parties
a. Plaintiff's Employment Positions and Supervisors
Defendant is a charitable corporation that provides services to disabled adults. Plaintiff began working for defendant as a Community Trainer (caregiver) in November 2004. That required her to provide direct care to particular clients of defendant. In her position as a caregiver, plaintiff was initially supervised by Jimenez and Loraine Sandgren, who were both program managers. (Jimenez had been hired in November 2004 for the position of program manager.) Sandgren left defendant's employ in January 2005 when she (Sandgren) became pregnant, and thereafter plaintiff was supervised solely by Jimenez.
In May 2005, plaintiff was promoted to the position of Community Living Specialist (counselor) when Jimenez recommended the promotion and Jones approved it. Plaintiff's duties as a counselor included visiting the residences of defendant's clients, assisting with their case management, staffing coverage for clients, and assisting clients with budgeting, paying bills, and doctor's appointments. She was told she could change her schedule for assisting clients if something came up that required her attention with respect to a client's health, well-being or other living situation. She was given a pager because occasionally Jimenez or defendant's clients would want to contact her.
b. Disputed Versions of Plaintiff's Job Performance
Plaintiff stated in her declaration filed in support of her opposition to defendant's motion for summary judgment that supervisor Loraine Sandgren told p laintiff she was pleased with plaintiff's work, told her she wanted plaintiff to have a raise, and told her that one of defendant's clients that plaintiff cared for, as well as that client's mother, had commented they were happy with the care plaintiff was providing to the client. Plaintiff submitted a declaration from the client's mother to that effect, as well as declarations from people who had worked for defendant, and who stated that plaintiff was a good employee. Plaintiff testified at her deposition that in her weekly meetings with Jimenez, Jimenez never told her anything negative or critical about her job performance, and she stated in her declaration that she had not received any written indications that her job performance was not satisfactory. She stated that throughout her employment with defendant, Jones told her she was doing a good job, as did plaintiff's co-workers, and that once Jones relayed a positive comment about plaintiff's work that was made by the client services coordinator at the Westside Regional Center. Plaintiff asserted that she returned pages as promptly as she could because the pagers that defendant gave her to use did not always function properly, and she asserted that Jimenez knew the pagers were problematic.
Defendant asserted that during the time plaintiff held the position of counselor, she had performance related issues. Jimenez testified at her deposition that on approximately 12 occasions she found plaintiff's performance to be unsatisfactory. She stated that several of those occasions involved "paging incidents," two involved plaintiff not being able to find coverage for a client that needs 24-hour care, and one involved plaintiff not being able to obtain medical supplies for a client. Other issues concerned plaintiff not appearing at appointments or following a schedule plaintiff devised for herself, and plaintiff having difficulty scheduling staff. These things occurred during the 10 weeks after plaintiff was promoted from caregiver to counselor. However, although Jimenez testified at her deposition that she did address these things with plaintiff ...