UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 7, 2011
MELISSA LIND SCOTT,
WINCO FOODS, INC., DBA WINCO FOODS, AND DOES 1-100, AND EACH OF THEM, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
MEMORANDUM AND ORDER
Plaintiff Melissa Lind Scott ("Plaintiff") seeks damages in connection with the decision of Defendant WinCo Foods, Inc. ("Defendant") to terminate her employment. Plaintiff alleges that Defendant subjected her to discrimination, harassment, and retaliation after she informed Defendant that she was pregnant and intended to take maternity leave.
Defendant has moved for Summary Judgment (ECF No. 14),*fn1
arguing that Plaintiff was not terminated because she was
pregnant, but because she lied to her supervisors in violation of the
company's honesty policy. For the reasons set below, Defendant's
Motion is denied.*fn2
At all times relevant to this litigation, Defendant operated a grocery store in Antelope, California where Plaintiff was hired as a part-time all-purpose clerk in 2001. (Pl.'s Dep. 18:6-17, 51:12.) Initially, Plaintiff worked primarily as a cashier on the evening shift. (Id. 46:17-25, 50:19-21, 64:18-21.) She was subsequently reassigned to work primarily as a stock clerk. (Id. 54:19-21.) On October 7, 2004, Defendant granted Plaintiff full-time status based on her length of service and positive job performance reviews. (Goldman Decl. Ex. F-2 at D00096.)
Plaintiff worked primarily as a stock clerk for approximately five years. (Pl.'s Dep. 47:18-19.) During that time, Plaintiff had a consistent day schedule that allowed her to take care of her two young children. (Id. 64:18-21, 180:10-25.)
In December 2007, Plaintiff notified Defendant that she was pregnant. (Id. 153:5-14.) In late 2007 or early 2008, Plaintiff notified Defendant that she would be taking three months maternity leave pursuant to the California Family Rights Act ("CFRA"). (Id. 175:17-176:18.) In response to Plaintiff giving notice of her intention to take maternity leave, a manager at Defendant's Antelope Store alluded to the fact that most people did not return from maternity leave. (Id. 153:20-154:11.) Plaintiff also claims that, after she notified Defendant of her pregnancy, she was treated differently by many of her co-workers who had previously been much more congenial. (Id. 178:8-12.)
On or around March 2008, Defendant reassigned Plaintiff to cashier duty. (Id. 160:4-64:5.) As a cashier, Plaintiff was required to stand in one place for prolonged periods of time which her pregnancy made difficult. (Compl. ¶ 17.) Defendant also altered Plaintiff's work schedule whereby she was required to work some evenings, sometimes as late as 11:00 p.m. (Pl.'s Dep. 183:18-24.) Such a schedule was physically taxing on Plaintiff, and made it increasingly difficult to care for her young children. (Id. 201:12-202:24.) Defendant told Plaintiff the reason for the change in work assignment and schedule was that she had become "stale in her job" and needed to put a "little more spring in [her] step." (Id. 162:19-20, 163:19-20.) Plaintiff admits that she had slowed as a result of the pregnancy, but contends that she was still a competent, even above average, employee during her pregnancy. (Pl.'s Decl. ¶¶ 26-32.)
Plaintiff inquired about an open position in customer service that would be less demanding during her pregnancy, but she was not awarded the position. (Pl.'s Dep. 158:15-159:17.) Although Plaintiff's work assignment and schedule changed, Defendant did not alter her title or salary. (See Compl.)
On May 5, 2008, Plaintiff made a mistake while operating a cash register. (See Pl.'s Dep. 77:16-82.) Defendant's cash registers can be switched between two different sides, allowing cashiers to ring up two customers at essentially the same time. (Pl.'s Decl. ¶ 45.) At approximately 11:00 a.m., Plaintiff began ringing up a customer on the "A" side of the register. (Pl.'s Dep. 77:16-25.) In the middle of the transaction, Plaintiff switched to the "B" side to add cash to the register. (Pl.'s Decl. ¶ 50.) After adding the cash, Plaintiff forgot to switch back to the "A" side and continued ringing up the customer. (Id.) As a result, the customer's items were split on both sides of the register. (Id.) Not realizing the mistake, Plaintiff only charged the customer for the items on the "B" side. (Id.) The customer left without paying for the items on the "A" side of the register. (Id. ¶ 52.)
After helping several other people in line, Plaintiff noticed several items on the "A" side of the register. (Id. ¶¶ 57-58.) At that point, she began voiding items from the register. (Id. ¶ 59.) As a result of the voids, the register required a manager override. (See Id. ¶ 60.) After Plaintiff called him over, the floor manager noticed the voided items and asked what had happened. (Id.)
Plaintiff contends that she told the manager that she must have split an order, and that she wasn't sure exactly what had happened. (Id. ¶ 65.) The floor manager contends that Plaintiff stated the items were scanned in again on the other side of the register and had been paid for. (Id. ¶ 65) Defendant subsequently terminated Plaintiff. (Pl.'s Dep. 65:14-21.) The sole grounds for termination put forward by Defendant was dishonesty in connection with Plaintiff's alleged statement that the items had been paid for. (Id.) Defendant contends that if Plaintiff had been truthful about her mistake, the incident would have been treated as a walk-out and Plaintiff likely would have received a warning. (Stinger Decl. ¶ 7.)
The Federal Rules of Civil Procedure*fn3 provide for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Once the moving party meets the requirements of Rule 56 by showing that there is an absence of evidence to support the non-moving party's case, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Genuine factual issues must exist that "can be resolved only by a finder of fact, because they may reasonably be resolved in favor of either party." Id. at 250. In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence. See T.W. Elec. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-631 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
California has adopted a burden-shifting test in discrimination claims pursuant to FEHA. Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (Cal. 2000). The plaintiff has the initial burden of establishing a prima facie case of discrimination by establishing: (1) she was a member of a protected class; (2) she was performing competently in her position; (3) she suffered an adverse employment action; and (4) some other circumstance suggests a discriminatory motive.
Id. at 355. If the plaintiff establishes a prima facie case, a rebuttable presumption of the defendant's discriminatory motive for the adverse employment action is created. Id.
The burden then shifts to the defendant to produce admissible evidence sufficient to raise a genuine issue of material fact that the action was taken for a nondiscriminatory reason. Id. at 355-356. If the defendant establishes a nondiscriminatory reason, then the presumption of discrimination is eliminated, and the plaintiff then bears the burden to show that the nondiscriminatory reason is pretextual. Id. at 356. However, a plaintiff is not required to produce additional evidence of pretext if the prima facie case raises a genuine issue of material fact regarding the truthfulness of Defendant's proffered nondiscriminatory reason. Chuang v. University of Ca. Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000).
In the instant case, Plaintiff has established a prima facie case of discrimination sufficient to survive summary judgment. It is undisputed that Plaintiff was a member of a protected class. The prohibition of sex discrimination in FEHA encompasses gender discrimination and discrimination based on pregnancy.
Cal. Gov't Code § 1296(p). It is further undisputed that termination of employment is an adverse employment action.*fn4 See Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1054 (Cal. 2005).
Defendant disputes only that Plaintiff was performing competently in her position, and that there are circumstances suggesting that Defendant harbored a discriminatory motive.
There is a triable issue of fact as to whether Plaintiff was performing competently in her position. Defendant contends that Plaintiff's performance began to decline to unsatisfactory levels in the Summer of 2007, and she was eventually terminated for dishonesty. (See Stinger Decl. ¶ 8; Sparks Decl. ¶ 3.) According to Plaintiff, while she had slowed slightly as a stock clerk during her pregnancy, she was still a competent productive employee. (Pl.'s Decl. ¶¶ 26-32.) Plaintiff also disputes that she was never dishonest. (Id. ¶ 65.) One of Defendant's former employees attests to Plaintiff's competence during her pregnancy. (See Lotze Decl. ¶ 25.) At the summary judgment stage, the Court does not make credibility determinations or weigh competing evidence. Because there is conflicting evidence concerning the issue, a genuine issue of material fact regarding Plaintiff's competence remains.
There are also other circumstances suggesting that Defendant harbored a discriminatory motive in terminating Plaintiff. Defendant changed Plaintiff's long-standing work assignment and schedule shortly after Plaintiff informed Defendant that she was pregnant and was planning to take maternity leave. (Pl.'s Dep. 175:17-176:18.) Further, Plaintiff contends that she was treated poorly by many of her co-workers after she notified Defendant of her pregnancy, and that a manager alluded to the fact that women do not typically return to work after taking maternity leave. (Id. 153:20-154:11.)
Given the timing of the conduct involved, and taking all evidence in the light most favorable to Plaintiff, there is a genuine issue of material fact as to Defendant's alleged discriminatory motive.
Defendant has established a triable issue of fact regarding a nondiscriminatory reason for terminating Plaintiff. Defendant claims that Plaintiff's work assignment and schedule were changed because of poor performance as a stock clerk. Defendant further claims that Plaintiff was terminated for dishonesty. However, because Plaintiff has established sufficient evidence of her prima facie case and cast doubt on the truthfulness of Defendant's nondiscriminatory reasons, summary adjudication of Plaintiff's discrimination claim is not proper.*fn5
Under FEHA, it is unlawful to harass an employee on the basis of sex. Cal. Gov't Code § 12940(j)(1). Harassment on the basis of sex includes harassment based on gender and pregnancy. Cal. Gov't Code § 12940(j)(4)(c).
Harassment may be established by evidence of unwelcome sexual advances, conduct, or comments, that were sufficiently severe or pervasive to alter the conditions of employment and create a hostile or abusive work environment. Lyle v. Warner Brothers Television Prod., 38 Cal. 4th 264, 283 (Cal. 2006). To establish harassment, a plaintiff must show that the defendant's conduct was both objectively and subjectively offensive. Id. at 284. The conduct at issue must be more than "merely tinged with offensive sexual connotations," it must constitute discrimination because of gender. Id. at 280 (internal quotations omitted).
Plaintiff has offered evidence that she subjectively considered Defendant's conduct hostile and abusive.*fn6 Further, as detailed above, Plaintiff has established sufficient evidence of gender discrimination to survive summary judgment. Shortly after Defendant received notice of Plaintiff's pregnancy and intention to take maternity leave, Defendant altered her work assignment and schedule. (Pl.'s Dep. 175:17-176:18.) Plaintiff has offered evidence that Defendant altered the conditions of Plaintiff's employment and subsequently terminated her for a discriminatory purpose. It follows that Plaintiff has established sufficient evidence that the conduct at issue was more than merely tinged with offensive sexual connotations. As a result, Plaintiff has established a triable issue of fact as to whether she suffered harassment based on a hostile or abusive work environment.
To prove retaliation pursuant to the FEHA, a plaintiff must establish that: (1) she engaged in protected activity; (2) the defendant subjected her to an adverse employment action; and (3) a causal link existed between the protected activity and the employer's adverse action. See Miller v. Department of Corrections, 36 Cal. 4th 446, 472 (2005). As previously stated, it is undisputed that Plaintiff suffered an adverse employment action when she was terminated. Defendant disputes that Plaintiff engaged in a protected activity, and the existence of a causal link between the protected activity and the employer's adverse action.
Plaintiff raises a triable issue that she engaged in a protected activity. Requesting maternity leave pursuant to the CFRA is a protected activity. See Dudley v. Dep't of Transp., 90 Cal. App. 4th 255 (Cal. Ct. App. 2001). Although Plaintiff never filed the paperwork necessary to request maternity leave, FEHA protects employees from preemptive retaliation by employers. Steele v. Youthful Offender Parole Bd., 162 Cal. App. 4th 1241, 1255 (Cal. Ct. App. 2008). As a result, when Plaintiff notified Defendant of her intention to take maternity leave, she engaged in a protected activity supporting a claim of retaliation pursuant to FEHA.
Plaintiff also offers sufficient evidence of a causal connection between the protected activity and her eventual termination. Relative temporal proximity between the protected activity and an adverse employment action can be sufficient to establish a causal connection. Loggins v. Kaiser Permanente Intern., 151 Cal. App. 4th 1102, 1110 (Cal. Ct. App. 2007). Plaintiff notified Defendant of her intention to take maternity leave in late 2007 or early 2008. (Pl.'s Dep. 175:17-176:18.) Her work assignment and schedule was subsequently altered in March 2008, and she was terminated in May 2008. (Id. 65:14-21.) During that time period, Plaintiff claims that her managers became less friendly towards her, and that one manager stated to her that most people did not return from maternity leave. (Id. 153:20-154:11.) Plaintiff was a well-regarded employee with a consistent work assignment and schedule for several years before her pregnancy. (See Id. 51:13-53:3.) Within a few months of notifying Defendant of her pregnancy and intention to take maternity leave, her schedule and work assignments were changed and she was eventually terminated. The relatively short period of time between the protected activity and the adverse employment action, in conjunction with the change in treatment Plaintiff allegedly suffered, raises an inference of causation sufficient to survive summary judgment.
D. Wrongful Termination
A wrongful termination cause of action may be brought against an at-will employer for public policy reasons if the discharged employee can demonstrate that they were terminated for reporting a statutory violation that served the public's benefit. Green v. Ralee Engineering Co., 19 Cal. 4th 66, 76 (Cal. 1998). The policy must be "public in that it affects society at large, rather than the individual, must have been articulated at the time of discharge, and must be fundamental and substantial." Id. (internal citations omitted).
Violations of statutorily-authorized regulations can be used as evidence of a public policy violation. Id. at 80. Further, violations of FEHA's prohibition on sex discrimination have been held to constitute a fundamental public policy supporting a claim for wrongful termination. See Stevenson v. Superior Ct., 16 Cal. 4th 880, 901 (Cal. 1997). A wrongful termination claim based on a violation of FEHA is coextensive with the FEHA violation. See Jennings v. Marralle, 8 Cal. 4th 121, 135-136 (Cal. 1994). Because Plaintiff has stated sufficient evidence of a FEHA violation to survive summary judgment, summary adjudication of Plaintiff's claim for wrongful termination is similarly improper at this time.*fn7
Defamation is an intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage. Ringler Ass. Inc. v. Maryland Cas. Co., 80 Cal. App. 4th 1165, 1179 (Cal. Ct. App. 2000). Plaintiff's claim of defamation is based on statements made between Defendant's employees to the effect that she was terminated for dishonesty. (Pl. Dep. 226:24-230:11). Defendant does not deny that such statements were made, but contends that the statements were undisputedly true. Although truth is an absolute defense to a defamation action, the truth of Defendant's statements as to Plaintiff's dishonesty is disputed. See Smith v. Maldonado, 72 Cal. App. 4th 637, 648 (Cal. Ct. App. 1999). There is a triable issue of fact as to whether Plaintiff was dishonest or was terminated as a result of her pregnancy. Therefore Defendant's contention that truth is a defense to Plaintiff's defamation claim has no merit at this juncture.
Defendant also contends that the alleged statements were privileged. A statement is subject to a qualified privilege if it is made innocently between interested parties without malice. Cal. Civ. Code § 47(c). Malice is defined as a lack of good faith belief in the truth of the statement, or "a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person." Lundquist v. Reusser, 7 Cal. 4th 1193, 1204, 1213 (Cal. 1994) (internal citations omitted). A genuine issue of fact remains regarding Defendant's alleged discriminatory motive in terminating Plaintiff.
If Defendant did in fact terminate Plaintiff because of her pregnancy and intention to take maternity leave, the subject statements were not made innocently or without malice. As a result, summary judgment of the defamation claim is improper at this time.
Based on the foregoing, Defendant's Motion for Summary Judgment, or in the Alternative, Summary Adjudication (ECF No. 14) is DENIED as to all claims.
IT IS SO ORDERED.