The opinion of the court was delivered by: David O. Carter United States District Judge
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Before the Court is a Motion for Summary Judgment filed by Defendants Chubb & Son, a Division of Federal Insurance Company (erroneously sued and served as Federal Insurance Company dba Chubb & Son) and Chubb & Son, Inc. (collectively, "Defendants") (Docket 30). After considering the moving, opposing, and replying papers, as well as oral argument, the Court DENIES the Motion for Summary Judgment.
Plaintiff asserts claims for (1) gender discrimination in violation of the California Fair Employment and Housing Act (the "FEHA"), California Government Code Section 12940(a);
(2) retaliation in violation of the FEHA, Section 12940(h); (3) failure to prevent discrimination in violation of the FEHA, Section 12940(k); (4) a violation of the California Family Rights Act ("CFRA"), California Government Code Section 12945.2; and (5) wrongful termination in violation of public policy.
On June 1, 1999, Plaintiff Hillary Villareal ("Plaintiff") began working at Chubb as a Commercial Underwriter. Defendants' Response to Plaintiff's Separate Statement of Controverted Facts, ¶ 1 (Docket 52-3) ("Resp. SOF "). Plaintiff was one of six Senior Underwriters who reported to Serena Hecker-Battles ("Hecker"). Id. at ¶ 3, 14. Hecker's supervisor was Vice President Ed Rochford, whose supervisor was Regional Manager Jim Darling. Id. at ¶ 6, 9-10.
Defendants argue that Hecker was responsible for hiring and promoting Plaintiff. Defendants' Reply Statement of Genuine Issues, ¶ 5 (Docket 52-2) ("Reply SOF"). Yet, Defendants cite only to Plaintiff's deposition, which merely states that Hecker was her only interview when she began working at Chubb for the second time and that the interview process was relatively short. Villareal Depo., 62:18-24. Defendants also state that Hecker "assisted" Plaintiff in her promotion to Senior Underwriter. Reply SOF, ¶ 9. In Plaintiff's deposition, Plaintiff only states that she believes Hecker "would have supported" her but makes clear that she has no knowledge as to Hecker's involvement in her promotion. Id. at 76: 4-11.
The December 3, 2009 Email
On December 3, 2009, Plaintiff sent Hecker an email intended for Jennifer Morena, another Senior Underwriter ("Morena"). Resp. SOF, ¶ 15; Reply SOF, ¶ 17; Villareal Depo., 223: 5-9. The body of the email read as follows:
Just talked to Serena. She called to do the very important work of scheduling a lunch with Jeff Rokos. I could NOT contain my scorn for her. I will probably get in trouble. I asked her who of her "folks were coming "up" for the holidays?? She said she just couldn't invite one boy without the other. She sees them as a set and inseparable. I already told Jason. I think he is a little pissed about it. She also forgot she gave him vacation that entire week. She asked how things were going for me, I said I was buried.she said, oh yes.all of those January renewals I have.I said I don't have any January renewals.there was a pause.I said I have the Auto Club..she said YESSSS.Hillary.I know about that one, in her Hillary is a big whiner/martyr I know what is going on voice..great she doesn't have a fucking clue and it's my fault.
Dan came over on Taylor just to show me the spread sheet and ask if he did it right.he hadn't done ANYTHING. He doesn't know how to access eRe from CUW to look at an eRe sub to copy and edit for the upcoming year.
Hecker Decl., Exh. 2. Plaintiff was issued a "Written Conduct Warning" for sending the December 3rd email because it violated the Chubb Code of Conduct. Villareal Depo., 232: 19 -- 233: 6; 240: 19 -- 241:7; Axel Decl., ¶ 8. The Written Conduct Warning stated that Plaintiff had violated a provision of the Chubb Code of Conduct that stated as follows: "We expect you to observe applicable laws and ethical standards in all matters concerning the Company, and to treat everyone with whom you come in contact, including your co-workers, with respect and dignity." Axel Decl., Exh. 5. Plaintiff's Warning stated that "This is a Warning that any violation of You & Your Company, The Chubb Corporation Code of Business Conduct, Chubb's Electronic and Communications Policy or other Chubb policies can be grounds for disciplinary action up to and including termination of employment." Id.
The April 21, 2010 Meeting
Defendants next allege that on April 21, 2010, Plaintiff engaged in disruptive behavior at a meeting by repeatedly challenging Hecker. See Hecker Decl., ¶ 22. Hecker felt that Plaintiff asked questions suggesting that Hecker was withholding important information from her staff, which undermined her authority. Id. After Hecker informed Karen Axel, the HR representative, about Plaintiff's actions during the meeting, Axel commenced a "fact-finding investigation." Axel Decl., ¶11-12. During the investigation, Axel interviewed three employees who attended the meeting. Cesar Valencia, an Assistant Vice President Commercial Lines, felt that Plaintiff's tone was accusatory and her actions were "unprofessional and disrespectful." Valencia Decl., ¶ 7-8. James Dickey, a Senior Underwriter, thought Plaintiff's comments were "out of line" and "were implying that Ms. Hecker failed to perform one of her duties." Dickey Decl., ¶ 8. Mildred Rodriguez, stated that although she felt that Plaintiff "was grilling the manager" and that Plaintiff "should be stopping when [she] got her answer," Plaintiff was not speaking in a hostile or elevated tone and that her words were not inappropriate or disrespectful. Rodriguez Depo., 23: 23-25; 24: 4-9; 49:11-23; 55: 10-17. Rodriguez was surprised that Plaintiff was fired. Id. at 70: 18-19. Based on her investigation, Axel believed that Plaintiff was "continuing a pattern of disrespectful behavior" and recommended that she be terminated. Axel Decl., ¶ 13. Hecker, Rochford, and Ramona Pringle, Vice President of Human Resources, approved the termination, which directly led to Plaintiff's actual termination. Id. at ¶ 14.
Plaintiff, not surprisingly, has a different interpretation of the April 21, 2010 meeting. She has submitted multiple declarations from other employees that indicate Plaintiff's behavior was not a violation of the Code of Conduct, such that it should not have resulted in her termination. Dan Gould could not even remember if Plaintiff was at the April 21, 2010 meeting, much less whether she said anything objectionable. Gould Depo., 87: 3-21. Another employee, Jennifer Morena, described Plaintiff's tone during the meeting as "matter of fact, informational" and not hostile or antagonistic. Morena Depo., 153: 23-25; 154: 4-11. Beth Lopez felt that Plaintiff "behaved professionally and did not criticize or badger" Hecker and remembers that no other team member mentioned feeling uncomfortable about Plaintiff's comments during the meeting. Lopez Decl. ¶ 3.
Plaintiff's Alternative Theories
Plaintiff disputes that she was fired due to her behavior at the April 21st meeting and instead argues that she was the victim of Hecker's sex discrimination. Plaintiff points to a number of facts that she believes indicate Hecker's discriminatory viewpoints. For example, Hecker apparently called Plaintiff a "premium whore" to her face and in front of other co-workers. Villareal Decl., ¶ 8; Morena Depo, 98:7-20. Other employees, Beth Lopez and Jennifer Morena, heard Hecker make comments that "she liked having men around and that they were 'eye candy.'" Lopez Decl., ¶ 7; Morena Depo., 79: 22-25; 80:1-14 . Lopez also "personally witnessed and experienced [Hecker] treating the male employees more favorably than the female employees." Id. at ¶ 5. For example, Hecker would take the male employees to attend events with vendors but would never invite the female employees. Id. Hecker also audited Lopez for two errors but never audited a male employee who made a more costly error. Id. From October 2000 until the end of Plaintiff's employment in April 2010, Hecker only hired males. Hecker Depo., 25:4-21. Plaintiff's position was also filled by a male, and when he left, Hecker hired another male employee to take over the position. Id., 33: 1-11; 34: 8-18; 35: 4-12.
Plaintiff alternately argues that she was fired in retaliation for requesting time off pursuant to the CFRA. After the April 21st meeting, Plaintiff told Hecker that she needed to take some time off to care for her ailing father. Response to SOF, ¶ 266. It is undisputed that Hecker did not contact HR to complain about Plaintiff's behavior at the meeting until after Plaintiff asked for time off. Id. at ¶ 267. Plaintiff argues that her termination was only the culmination of a long history of intolerance of Plaintiff taking the leave to which she was entitled. Plaintiff had lodged multiple complaints with Axel related to Hecker's increased scrutiny of Plaintiff's medical leave. Axel Depo. 120:23 -- 121:2. Hecker gave Plaintiff "a hard time" about Plaintiff's request for leave to take care of her mother after a stroke. Axel Depo. 100:12 -- 101: 1; 128:6-11. Additionally, after Plaintiff had gallbladder surgery, Hecker lied to gain access to Plaintiff's housing development and showed up unannounced at Plaintiff's house, despite the fact that she knew Plaintiff would not want to see her. Morena Depo.168:11 -- 71:11. Hecker also commented that Plaintiff shouldn't need three weeks off for her surgery because when Hecker had lapband surgery, she only took two weeks off and accused Plaintiff of getting on the longest case she could when Plaintiff had jury duty. Id. 64:4-6; 64:13-22.
Defendants argue that Plaintiff was only fired for her violation of the Chubb Code of Conduct and accordingly seek summary ...