Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. C06-00999.
Margulies, J.
Plaintiff Michele De Costa was terminated by her employer, defendant NorthStar Risk Management & Insurance Services, Inc. (NorthStar), while she was completing maternity leave. She subsequently brought an action against NorthStar alleging that the termination was motivated by unlawful discrimination. NorthStar filed a motion for summary adjudication, providing evidence that it terminated De Costa for financial reasons after learning of an anticipated business reversal. In response, De Costa submitted evidence that one of NorthStar’s officers had made discriminatory remarks to her and that NorthStar did not actually suffer a financial reversal. The trial court found the evidence insufficient to raise an inference of discrimination and granted the motion. We affirm.
I. BACKGROUND
De Costa filed an employment discrimination suit against NorthStar on May 15, 2006, alleging causes of action for pregnancy discrimination (first cause of action), gender discrimination (second cause of action), sexual orientation discrimination (third cause of action), marital status discrimination (fourth cause of action), sexual harassment (fifth cause of action), wrongful termination (sixth cause of action), and failure to pay overtime wages (seventh cause of action). The complaint alleged that De Costa, a lesbian, was hired as an accountant/administrative assistant by NorthStar in May 2004. She took maternity leave beginning October 14, 2005, and she gave birth to triplets on December 2. In early February 2006, NorthStar began to inquire when De Costa would return to work. De Costa initially asked to return in the first week of March, working 30 to 35 hours per week, but in a subsequent e-mail, sent February 22, she said she wanted to return on a full-time basis. Although NorthStar was initially receptive, the next day she received a telephone call terminating her employment.
On February 14, 2007, NorthStar filed a motion for summary adjudication of the first six causes of action, arguing that it had a legitimate nondiscriminatory motive for terminating De Costa. The motion relied principally on the deposition testimony of Charles Bates, NorthStar’s chief executive officer. Bates testified that NorthStar was a retail insurance broker, representing companies offering commercial, property, risk, and personal lines of insurance. At the time De Costa took leave in late 2005, approximately 70 percent of NorthStar’s business came through a program run by CIBA insurance company. All of the CIBA policies came up for renewal on the same day, March 31 of each year. In January 2006, Bates was given a financial balance sheet for 2005, which showed that NorthStar had lost $150,000 during the calendar year. He discounted the bad news, however, because he anticipated that the CIBA renewal would provide $200,000 in “additional commission revenue” to cover the earlier losses.
When he made this judgment, Bates was aware that CIBA planned to raise the premiums for its insurance policies, effective March 31. He anticipated that the increase would be in the range of 5 to 8 percent. Based on discussions with NorthStar’s customers, Bates believed that most of them would accept an increase of that magnitude. In early February 2006, however, NorthStar learned that CIBA intended to raise the premiums for NorthStar’s customers by 20 to 30 percent, rather than 5 to 8 percent. Bates feared that these increases would create “problems, serious problems” for NorthStar in obtaining renewal of its customers’ CIBA policies. His alarm at a possible substantial decline in NorthStar’s income from the CIBA policies caused Bates to terminate De Costa’s employment as a cost-saving measure.
De Costa’s supervisor, John Peiler, and Eric Kern, an employee in management information systems, had divided De Costa’s job responsibilities between them after she left on maternity leave. Bates testified that when he made the decision to terminate De Costa, he was aware that Peiler had been corresponding with De Costa to make arrangements for her return. Bates told Peiler that, for financial reasons, it would not be possible to offer De Costa her job back.
Bates confirmed that De Costa was not terminated for reasons of performance. Both he and Peiler believed she was a good employee.
Bates further testified that there was one other personnel move he could have made to cut NorthStar’s expenses in February 2006. Bates had investigated eliminating Kern’s position and hiring an independent contractor, Advanced Microsystems, to perform his work. This option would have saved about the same amount as terminating De Costa. Bates said that discussions over outsourcing Kern’s position came to an end when NorthStar’s president, David Costello, convinced Advanced Microsystems to hire his son, Danny Costello. Danny had earlier worked at NorthStar, and the company, Peiler in particular, was dissatisfied with his performance. Out of concern that Advanced Microsystems would assign Danny to NorthStar, the company dropped the idea of outsourcing Kern’s work. Several months after De Costa’s termination, NorthStar nonetheless retained Advanced Microsystems and encouraged Kern to find other employment.
De Costa also suggested that Danny Costello was a poor employee, criticizing his father because he allowed Danny “to do as he pleased when he pleased at the office without any repercussions.”
Ultimately, the CIBA premium income for 2006 came in $250,000 less than Bates had anticipated at the end of 2005. Bates testified that he had been required to invest $100,000 of his personal funds into NorthStar in 2005, but the amount was paid back to him in April or May 2006. He had contributed $50,000 of personal funds to the company the prior year, 2004, and also been repaid in April or May 2005. Despite the unanticipated loss of CIBA income, Bates was not required to invest personal funds in 2006.
Although NorthStar’s motion was based on Bates’s testimony that he was the person who made the decision to terminate De Costa, NorthStar also submitted contradictory evidence with its motion. In support of one of its undisputed facts, NorthStar relied on deposition testimony by De Costa that she had been told during a telephone call with Costello that “[Bates] had wanted to eliminate . . . the full-time [information technology] position that [Kern] currently held and outsource that service to another company, but that [Bates] may have faltered or given in to [Peiler], and so . . . [Bates] gave [Peiler] the ultimatum of choosing between [De Costa] or [Kern].”
De Costa’s opposition to the motion was based primarily on a series of documents and deposition excerpts submitted as attachments to the declaration of her attorney, Michelle Ferber. The first set of documents, attached as exhibit A, consisted of e-mails between Peiler and De Costa regarding De Costa’s return to work. The same documents had been submitted by NorthStar in support of its motion. Attached as exhibit E were a series of financial documents, each entitled “Income Statement.” Ferber’s declaration identified these documents only as “Income Statements . . . which were produced by defendant in response to plaintiff’s demand for production of documents.”
NorthStar also had submitted nearly 20 pages of De Costa’s deposition in which these e-mails were identified and discussed.
A letter from NorthStar’s counsel to De Costa’s counsel submitted as exhibit F to the Ferber declaration can be construed as identifying the documents in exhibit E as “Monthly income statements for the time period January 2004 through February 2006.” Even assuming the letter does so identify the documents, it is not the type of sworn evidence that can provide an evidentiary foundation for them.
De Costa’s opposition explained that her prima facie case that she had been terminated as a result of her gender, sexual orientation, marital status, or pregnancy was based on (1) coarse sexualized remarks to De Costa by Costello, witnessed by Bates, regarding the manner of her babies’ conception, which allegedly demonstrated that Costello “was at least uncomfortable with plaintiff’s sexual orientation”; (2) Peiler’s alleged concern that De Costa might not be able to perform her duties after having her children; and (3) the unusual manner of her termination.
As to the first factor, De Costa testified at deposition that when Costello first learned she was pregnant, he jokingly asked her if “they used a big dildo” to impregnate her and whether she enjoyed it. He then asked “why didn’t [she] have a good looking guy fuck [her].” Bates witnessed the exchange, but there is no evidence of his reaction, if any. Costello also made a subsequent comment regarding “fireworks in [De Costa’s] bedroom.” There is no contention that Bates witnessed these comments.
As to the second factor, Peiler testified that he asked De Costa before she left on maternity leave “how sure that she was that she would be able to return full time.” When asked what caused him to be concerned that De Costa would not be able to return full time, he answered, “Nothing. I was just aware that sometimes that happens.”
Regarding the third factor, De Costa relied on the Peiler/De Costa e-mails from February 2006, which constituted the negotiation over the terms of De Costa’s anticipated return to work. Peiler initially expressed some hesitation about De Costa’s return on less than a full-time basis but offered to accommodate a part-time arrangement that would not include noncash employment benefits. De Costa responded that she anticipated working 30 to 35 hours per week upon return and attempted to negotiate for benefits. In response, Peiler reiterated that NorthStar would not provide benefits for a part-time position. A week later, on February 22, De Costa wrote that after discussions with her partner she had decided to return full time on March 6. On February 23, Peiler responded, “That’s great. I’m glad you were able to work something out.” Later the same day, Peiler called De Costa and told her she had been laid off. In a subsequent e-mail, he told De Costa her decision to work full time “came as a surprise” and “[t]he reason we had to let you go is that the financial situation of the company is dire and not sustainable. We have had to eliminate the full-time position at the front-desk in order to reduce expenses so that the company may continue to operate.”
De Costa also argued that NorthStar’s purported nondiscriminatory reason for terminating her was a sham. First, she argued, it was illogical for NorthStar to terminate her rather than outsource Kern’s work, since the latter option would have fully met NorthStar’s needs without eliminating the various functions she performed. Because the two options saved approximately the same amount of expense, by outsourcing Kern’s work NorthStar could have kept De Costa effectively for free. De Costa further argued NorthStar’s explanation that it feared the assignment of Costello’s son was implausible, since NorthStar presumably could have vetoed Danny’s assignment. Moreover, the concern did not stop NorthStar from retaining Advanced Microsystems and forcing Kern out a few months later. Second, De Costa argued that the financial statements submitted as exhibit E to the Ferber declaration demonstrated that NorthStar’s business pattern the prior two years had been to show a substantial loss on its books early in the calendar year, which was made up after March 31 by the CIBA renewal funds. In 2004, NorthStar’s financial position changed from a February deficit of $87,000, to a May surplus of $165,000. In 2005, the same change was from a deficit of $20,000, to a surplus of $83,000. Because NorthStar had refused to respond to discovery regarding its financial condition after the date of De Costa’s termination, she did not know whether that pattern held true in the year of her termination.
The trial court granted the motion for summary adjudication in a minute order. The court held that the causes of action for employment discrimination were barred because “the evidence shows that defendant had a legitimate, nondiscriminatory reason for terminating plaintiff’s full-time position. . . . [¶] Plaintiff has failed to raise any triable issue of fact as to whether the proffered reason for her termination was a pretext, or as to whether she was terminated due to her marital status, gender/sex, sexual orientation, or pregnancy leave.” The court cited a large number of evidentiary materials in support of these conclusions. One of the cited materials was the financial records attached as exhibit E to the Ferber declaration, despite the court’s ruling that these documents and the De Costa/Peiler e-mails, exhibit A, were inadmissible for lack of foundation. In addition, the court dismissed the cause of action for sexual harassment because “the evidence shows that the purported harassment of plaintiff was not sufficiently severe or pervasive” and the claim for punitive damages because “the evidence shows a lack of malice, fraud, or oppression.” The order became an appealable judgment after plaintiff voluntarily dismissed her seventh cause of action for failure to pay overtime wages.
II. DISCUSSION
De Costa contends that the trial court erred in granting summary adjudication of her claims for employment discrimination, but she does not challenge the trial court’s rulings on her fifth cause of action, for sexual harassment, and her claim for punitive damages.
“The purpose of summary judgment ‘is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.’ [Citation.] . . . [¶] . . . [¶] ‘ “ ‘We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.’ ” [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’ ” (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1002–1003.) In so doing, the court is required to draw all reasonable inferences from the evidence in favor of the nonmoving party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 470.)
Government Code section 12940, subdivision (a) prohibits California employers from discriminating against an employee on the basis of, among other characteristics, gender, marital status, and sexual orientation. California has adopted the three-part analytic approach to employment discrimination claims developed in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–803. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354–355 (Guz).) Under the McDonnell test, the burden initially lies with plaintiff to demonstrate a prima facie case of discrimination by showing “ ‘ “actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion . . . .’ ” ’ ” (Guz, at p. 355.) NorthStar effectively concedes that De Costa has made a prima facie case of discrimination.
Once a prima facie case has been made, the burden of persuasion shifts to the employer to provide a “legitimate, nondiscriminatory” explanation for the challenged employment practice. (Guz, supra, 24 Cal.4that pp. 355–356.) “If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.] . . . The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.” (Id. at p. 356.)
On a motion for summary adjudication challenging a claim of employment discrimination, once the employer has provided evidence “creditable on its face” of a legitimate, nondiscriminatory reason for its conduct, the plaintiff must respond with evidence raising “a rational inference that intentional discrimination occurred.” (Guz, supra, 24 Cal.4th at p. 357.) Stated another way, the plaintiff must provide evidence sufficient to support an inference that the legitimate reason proffered by the employer was not the genuine reason for its action, but merely a pretext (e.g., Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097), and that “the challenged action resulted in fact from discriminatory animus rather than other causes.” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112.) Necessarily, such evidence is of two types. Plaintiff can provide evidence that directly demonstrates a discriminatory motive, or, alternatively, evidence that the employer’s explanation is not credible, thereby allowing the inference that another discriminatory motive was at work. (Chuang v. University of California Davis (9th Cir. 2000) 225 F.3d 1115, 1127.) Evidence of both types may be combined to create a basis for the required reasonable inference of discrimination. (Chuang, at p. 1127; Guz, at pp. 360–361.)
Because of the similarity between state and federal anti-discrimination laws, California courts may look to federal precedent when applying our own laws. (Guz, supra, 24 Cal.4th at p. 354.)
A. Evidentiary Rulings
We begin with the trial court’s challenged rulings excluding exhibits A and E to the Ferber declaration, since these determine what evidence can be considered in reviewing the trial court’s decision. We review evidentiary rulings for abuse of discretion. (Barragan v. Lopez (2007) 156 Cal.App.4th 997, 1003.)
We agree with De Costa that the trial court abused its discretion in ruling exhibit A, the De Costa/Peiler e-mails, inadmissible for lack of foundation. Although it is true De Costa failed to provide an adequate evidentiary foundation when attaching the e-mails to the Ferber declaration, the documents had already been introduced into the record by NorthStar, thereby waiving any objection to their admission. Further, NorthStar’s evidence contained several pages of deposition testimony that provided an adequate evidentiary foundation. De Costa was entitled to rely on this evidence. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289 [“In summary judgment proceedings, gaps in a party’s evidentiary showing may certainly be filled by the opposing party’s evidence”].) NorthStar does not even defend the trial court’s evidentiary ruling, merely arguing that the e-mails are irrelevant.
We find no error in the exclusion of the financial documents attached as exhibit E. On summary judgment, a party is required to provide a proper evidentiary foundation for the introduction of supporting documents. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119–1120 [summary judgment must be based on admissible evidence].) The documents in exhibit E were attached to an attorney’s declaration that states only that they were produced by NorthStar, and there was no sworn testimony in the record by a person familiar with the documents describing their content or creation. NorthStar’s foundation objection was therefore well-taken.
De Costa does not contend that she laid a proper foundation, but she argues that the documents can be considered because the trial judge cited exhibit E in the order ruling against her. De Costa cites no legal authority for her argument, and we know of no principle of law that would permit a trial judge, having sustained a party’s objection to inadmissible evidence, to waive that objection by relying on the evidence in its decision. The trial judge’s citation of the documents did not change their inadmissible status.
De Costa also argues that the objections should have been rejected because they were not presented in accordance with California Rules of Court, rule 3.1354(b). Whether to require strict compliance with the Rules of Court, however, is in the discretion of the trial court. (E.g., Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364.) We find no reason to second-guess the court’s exercise of that discretion, particularly since De Costa’s argument does not appear to have been presented below. Accordingly, the financial documents were properly excluded and may not be considered on appeal.
B. Gender, Sexual Orientation, Pregnancy, and Marital Status Discrimination
De Costa’s first, second, third, fourth, and sixth causes of action all depend upon a finding that her termination resulted from unlawful employment discrimination under Government Code section 12940, which states that “[i]t shall be an unlawful employment practice” for an employer to discriminate in employment “because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person.” NorthStar did not challenge De Costa’s prima facie showing of discrimination, and De Costa does not argue that NorthStar failed to state a legitimate, nondiscriminatory reason for her termination. NorthStar therefore successfully shifted the burden of persuasion to De Costa to produce evidence permitting a rational inference that her termination was motivated by unlawful bias.
De Costa acknowledges that her sixth cause of action, for termination in violation of public policy, depends upon a demonstration of unlawful termination under one of the other four discrimination causes of action.
Bates’s account of the termination is plausible, and De Costa introduced no evidence challenging the central tenet of his testimony, the unexpected and sudden increase in policy rates by CIBA. To the extent De Costa does challenge Northstar’s demonstration of a legitimate nondiscriminatory reason for her termination, we reject that challenge.
There was little direct evidence of discriminatory motive. De Costa acknowledged that Bates, Costello, and her direct supervisor, Peiler, liked her, treated her fairly, and, so far as she knew, did not intend her any harm. Her primary evidence is Costello’s crude remarks about the conception of her children. In opposing a motion for summary judgment, De Costa is entitled to the inference that these comments betray status-based animus. They of are little significance in demonstrating the intent behind her termination, however, because there is no evidence that Costello was involved in the decision to terminate. (See Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1160; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809 [in evaluating evidence of discriminatory motive, a single biased remark by a person not involved in the challenged employment decision is entitled to little or no weight]; see also King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 434 [attitude of coworkers, including superiors, not involved in termination decision irrelevant in discrimination action].) Bates claimed that he was the sole actor, while Costello told De Costa that Peiler made the decision. No one suggests that Costello was consulted.
De Costa argues that the so-called “isolated remark” doctrine has been rejected by later cases, most prominently Metoyer v. Chassman (9th Cir. 2007) 504 F.3d 919, 938. In Metoyer, however, the court noted that the person who made the remark “influenced or participated in the decision-making process.” (Ibid.) There is no evidence Costello played any role at all in the decision to terminate De Costa. We conclude that the California courts continue to recognize the general principle that a single discriminatory remark by a company employee who had no role in an employment decision provides little or no evidence that the decision was made for a discriminatory reason.
De Costa argues that as NorthStar’s president, Costello must have had some say in the matter. Inferences based on speculation, conjecture or guesswork, however, will not defeat summary judgment. (Mortgage Associates, Inc. v. Fidelity & Deposit Co. of Maryland (2002) 105 Cal.App.4th 28, 35–36.) Having had the opportunity to depose Costello, Peiler, and Bates, De Costa was required to come forward with some evidence suggesting Costello might have played a role in her termination if she was to use his comments as substantial evidence of a discriminatory discharge. She has presented none.
De Costa argues that because Bates witnessed the encounter, he should be assumed to share Costello’s animus. Without evidence of Bates’s reaction, however, there is no reasonable basis for the inference that Bates shared Costello’s intent. The mere fact that a particular person witnessed a discriminatory encounter provides no evidence of the witness’s attitude. Only if there was evidence Bates reacted to the encounter in a manner that suggested, implicitly or explicitly, that he tolerated or even shared Costello’s thinking would such an inference be reasonable. In the absence of such evidence, we decline to draw that inference.
The other evidence of bias cited by De Costa is Peiler’s conversation with her prior to her departure on maternity leave. As Peiler explained his remarks, “I remember asking her how sure that she was that she would be able to return full time. And I let her know that one of the reasons that—one of the things that—that sometimes happens with a maternity leave is that the benefits are a big issue. And that if employees don’t return full time after their maternity leave, that sometimes companies will ask that employee to reimburse them for their benefits that they received while they were out. [¶] And I told her that that would not be a factor, that I didn’t want her to indicate that she was interested in coming back full time just so she could retain benefits. I told her that even if she thought she could only come back part time, that we would keep her on the benefits throughout her leave, because we didn’t want her to have to worry about benefits during that time.” When asked what De Costa “said or did that made you concerned that she wouldn’t be able to come back full time,” Peiler responded, “Nothing. I was just aware that sometimes that happens.”
De Costa claims that Peiler’s question expresses “concern about her ability to perform her duties once she had children.” While we agree that Peiler’s comments embody a concern regarding De Costa’s post-childbirth plans, we do not agree that they can be reasonably interpreted to express bias against De Costa based on her status as a parent. At the time the comments were made, De Costa and Peiler were discussing De Costa’s return to work after her leave. She was preparing to give birth to triplets, an event whose unusual demands could upset the lives of even the most prepared and experienced parents. Because Peiler’s job required him to plan for De Costa’s absence and return, it was prudent for him to attempt to determine how confident she was that she would return to work full time after the births. As it turned out, Peiler’s question was prescient, since De Costa did later express a desire to return to work on a part-time basis. Viewed in context, the comment does not suggest that Peiler believed that De Costa’s family status would interfere with her job performance once she returned to work; it merely expressed a realistic recognition that De Costa might prefer not to work full time following the triplets’ birth. We find no basis for drawing an inference of discriminatory motive from this conversation.
Other than the foregoing, De Costa provides no direct evidence that her termination was the result of bias based on her gender, marital status, sexual orientation, or pregnancy.
De Costa also challenges the credibility of NorthStar’s purported legitimate nondiscriminatory motive for her termination. Her first argument is that Bates’s purported financial concern was not genuine, since the financial records show that NorthStar’s books always showed a loss at the beginning of the calendar year that was made up in April or May. While we cannot consider the financial records, having affirmed the trial judge’s decision to sustain NorthStar’s objection, we believe a similar inference regarding the pattern of NorthStar’s business can be drawn from the testimony that in years 2004 and 2005, Bates contributed his personal funds to the company late in the year, only to be repaid in April or May of the next year. Based on this testimony, we find it reasonable to infer that NorthStar had a cyclical income pattern over the course of a typical fiscal year.
Nonetheless, we do not agree with De Costa’s argument that this inference casts doubt on the credibility of Bates’s account. Bates did not testify that he wanted to cut costs merely because NorthStar was losing money early in 2006. On the contrary, his testimony recognized that it was normal for NorthStar to show a loss on its books early in the calendar year, which was typically made up after the CIBA renewals. Rather, his concern was that, as a result of the unexpected increase in CIBA premiums, NorthStar would be deprived of the cash flow that ordinarily cured its early-year losses. In other words, Bates’s concern was that 2006 would be different from prior years, and he terminated De Costa in response to that concern.
The only evidence we have found that even arguably calls into question the sincerity of Bates’s concern is the evidence that in 2006, he was reimbursed by the company for his personal financial contribution, as in prior years, despite the apparent CIBA shortfall. In the absence of a more complete explanation, however, we find this fact alone insufficient to challenge the credibility of his story.
Second, De Costa argues that Bates’s story is undercut by Costello’s testimony that Bates permitted Peiler to decide whether she or Kern would be terminated. While we recognize that this evidence creates an issue of fact as to the identity of the decision maker, we conclude that it does not raise an issue of fact as to NorthStar’s legitimate, nondiscriminatory reason for De Costa’s termination. Accepting Costello’s claim, it was nonetheless true that Bates decided one of the two had to go for financial reasons. Regardless of which person chose between Kern and De Costa, Bates’s testimony that the termination was motivated by an intent to cut costs at NorthStar remains unchallenged.
Further, NorthStar provided a legitimate nondiscriminatory explanation for the decision to select De Costa for termination over Kern. As discussed above, NorthStar was concerned that Advanced Microsystems would assign Costello’s son, Danny, whom Peiler found inadequate when he worked at NorthStar. De Costa argues that this explanation is not credible on its face because NorthStar could have vetoed Danny if he were assigned to the NorthStar account. There is, however, no evidence that Advanced Microsystems would have shown such flexibility. Further, such a veto would have been internally awkward, at the least, given Costello’s status as president of NorthStar. It is not incredible on its face that the company would have preferred not to take the risk.
De Costa also argues that it would have been more advantageous for NorthStar to save money by terminating Kern and hiring Advanced Microsystems. Because Advanced Microsystems was prepared to perform all of Kern’s job duties, by terminating Kern, NorthStar could have saved an amount equivalent to De Costa’s compensation without losing her services. By the time the decision was made to terminate De Costa, however, the company had been operating successfully for four months without her services, having divided her duties between Peiler and Kern. Under these circumstances, there is less reason to infer that the company necessarily would have been better off terminating Kern and retaining De Costa, since the company’s daily operating needs appear to have been met either way.
While it is true that NorthStar let Kern go in favor of Advanced Microsystems several months later, that does not create a triable issue regarding the credibility of NorthStar’s explanation. As discussed above, replacing Kern would have saved the company a significant amount of money, in addition to the costs saved by De Costa’s termination. In the absence of further explanation, Kern’s later replacement is consistent with NorthStar’s claim that it needed to cut expenses.
De Costa also argues that the unusual circumstances of her termination argue against the credibility of Bates’s account. As discussed above, Peiler and De Costa negotiated the terms of De Costa’s return to work in an exchange of e-mails throughout the month of February. De Costa took the position that she wanted to return to work part-time but retain her non-monetary benefits. Peiler maintained that she would not be offered benefits unless she returned to work full time. When De Costa finally relented and stated that she would return full time, Peiler told her “great” by return e-mail. Later that same day, Peiler called her and terminated her employment. There was no testimony explaining Peiler’s abrupt change of heart.
De Costa argues that it is unlikely that Peiler, who undoubtedly was aware of the company’s financial position, would have been negotiating De Costa’s return to work if the company faced a need for cost-cutting. The argument simplifies the unusual circumstances of her departure. De Costa was terminated the day after she told Peiler that she wanted to return to work on a full-time basis. By electing full-time work, which provided benefits, De Costa became a significantly more expensive employee than Peiler had anticipated from her prior e-mails. Her termination upon her change of heart is consistent with Bates’s testimony that he decided to “eliminate [De Costa’s] position on a full-time basis.” Peiler’s e-mail to her expressed a similar hesitation, telling her that he was surprised at her desire to return full time and that the company’s financial position precluded such a return. To the extent the circumstances of De Costa’s termination support any inference, they appear to reinforce Bates’s story, rather than refute it. Accordingly, none of the evidence cited by De Costa permits a reasonable inference that NorthStar’s articulated reason for her termination was false or merely a pretext.
C. Pregnancy Leave Violation
Under her first cause of action, De Costa argues that NorthStar is liable for a violation of Government Code section 12945, subdivision (a), which makes it an unlawful employment practice for an employer “to refuse to allow a female employee disabled by pregnancy, childbirth, or related medical conditions to take a leave for a reasonable period of time not to exceed four months and thereafter return to work . . . .” (E.g., Spaziano v. Lucky Stores, Inc. (1999) 69 Cal.App.4th 106, 110–111.) As De Costa acknowledges, however, her leave exceeded the four-month maximum dictated by section 12945, subdivision (a), which disqualifies her under the plain language of the statute.
De Costa argues that because her maternity leave was approved by NorthStar, she was protected under California Code of Regulations, title 2, section 7291.9, subdivision (d), which states, “If an employee disabled by pregnancy has taken a pregnancy disability leave for longer than four months, an employer must treat the employee the same regarding reinstatement rights as it treats any other similarly situated employee who has taken a similar length disability leave. For example, if the employer has a policy which allows reinstatement to other temporarily disabled employees who are disabled for six months, the employer must also allow reinstatement to a woman disabled by pregnancy for six months.”
De Costa’s argument confuses maternity leave with the disability leave protected by Government Code section 12945. California Code of Regulations, title 2, section 7291.2, subdivision (g) defines “disabled by pregnancy” as the inability “because of pregnancy to work at all or . . . to perform any one or more of the essential functions of her job or to perform these functions without undue risk to herself, the successful completion of her pregnancy, or to other persons.” Accordingly, Government Code section 12945, subdivision (a) guarantees that a woman who is physically unable to return to work as a result of pregnancy cannot be terminated unless her disability lasts for more than four months. Code of Regulations, title 2, section 7291.9, subdivision (d) further recognizes that if an employer has a general policy of retaining employees who are disabled for a period longer than four months, the employer must extend that same policy to women who are disabled by pregnancy.
Similarly, Government Code section 12945, subdivision (a) states: “Reasonable period of time means that period during which the female employee is disabled on account of pregnancy, childbirth, or related medical conditions.”
De Costa’s maternity leave was a period of leave granted by NorthStar without regard to her actual physical disability. It is therefore irrelevant to the issues raised under Government Code section 12945. In the absence of evidence that De Costa remained physically disabled at the end of four months, combined with evidence that NorthStar maintained a policy of retaining disabled workers for a period longer than four months, NorthStar was entitled to summary adjudication upon its showing that De Costa’s leave exceeded the statutorily protected disability leave under section 12945. There was no error in the trial court’s grant of summary adjudication on this claim.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J., Swager, J.