ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

MARGARET M. MORROW, District Judge.

On November 1, 2005, plaintiff Angela Medina filed a first amended complaint in the Los Angeles Superior Court against her former employer, Multaler, Inc. dba Yon-Ka Paris Company ("Yon-Ka USA"), and her former supervisor, Herve Pontacq, alleging that she had been constructively discharged because of her pregnancy. Medina contends that, over the course of several months, defendants caused her to fail as a sales manager by criticizing her poor sales performance, repeatedly reconfiguring the territories for which she was responsible, and removing key accounts from her management. The complaint alleges wrongful retaliatory termination in violation of public policy, and four claims under California's Fair Employment and Housing Act ("FEHA"): violation of pregnancy leave rights, sex discrimination, retaliation, and failure to prevent discrimination. Defendants removed the action to federal court on January 6, 2006, invoking the court's diversity jurisdiction. They have now moved for summary judgment.

I. FACTUAL BACKGROUND

A. Yon-Ka USA

Multaler Cie is a French skin care company that does business as Yon-Ka France and Yon-Ka USA. Together, the French company and its American subsidiary sell luxury skin care products in five-star hotel spas and in skin care clinics.

Herve Pontacq is Chief Operating Officer (COO) of Yon-Ka USA; he works from the company's national corporate headquarters in Rockaway, New Jersey. Most of the company's employees are women between the ages of 25 and 35, who are assigned sales territories for which they are responsible. One of Pontacq's duties as COO is to ensure that Yon-Ka USA maximizes the potential of its sales force in each territory. If he believes that a territory is underperforming, he alerts the salespersons responsible for the territory and strategizes with them to correct the situation.

Defendants contend that, during the time Medina worked for the company, Pontacq regularly reconfigured underperforming territories to increase sales. By drawing new geographic boundaries for a sales territory, he hoped to maximize the salesperson's ability to serve and grow the business of existing clients and solicit new clients. Pontacq represents that this was one of his "most efficient" tactics, and notes that he has reconfigured the territories of salespersons who were not pregnant. Whenever a territory is reconfigured, Yon-Ka USA recalculates sales goals to reflect the reconfiguration.

B. Medina's Employment With Yon-Ka USA

Medina has sold beauty products since 1984. In September 2001, she began working for Yon-Ka USA as a Western Division Sales Manager. She was based in El Segundo, California, and earned a base salary and commissions; she received commissions, however, only if her territories met their target sales goals. During her initial job interview, Amy Waldorf, who later became Medina's first supervisor, questioned her about her marital status and plans for having children. In November 2001, Medina became Regional Manager of a territory that included Los Angeles, Orange, and San Diego Counties. She also began managing other sales people at this time.

In 2002, Medina became pregnant for the first time; she took maternity leave from Yon-Ka USA from September 22, 2002 to January 6, 2003. Defendants contend that Medina testified Pontacq did not say or do anything inappropriate during her first pregnancy. Soon after her return to work, Medina requested and received a change in position. She became Regional Sales Manager for a sales territory covering greater Los Angeles and outlying counties. As Regional Sales Manager, she was no longer responsible for supervising other employees. Her base salary was reduced in accordance with a company policy that requires reduction of an employee's base salary if she no longer supervises other employees.

In March 2004, Medina's title was changed to Zone Leader, and she began to report directly to Pontacq for the first time. In April 2004, Yon-Ka hired an account coordinator, Jessica Burton, to support Medina. Medina believed that Burton's presence would allow her to spend more time on new client development and on expanding business from existing clients. At the time, Medina was the only Zone Leader with an account coordinator.

C. First Territorial Reconfiguration, May 2004

In May 2004, Medina's territory, which spanned eight counties and 180 accounts, was reconfigured into three smaller territories: Metro LA1, Metro LA2, and Metro LA3. Defendants contend this reconfiguration was effected following discussions among Pontacq, Francoise Muhlethaler (president of Yon-Ka France), and Muhlethaler's financial advisers. They believed the territory would be more profitable if it were divided into more compact, manageable sales areas.

Pontacq initially asked Medina to oversee Metro LA2 directly and manage the Regional Sales Managers he planned to hire for Metro LA1 and Metro LA3. She declined because she did not want a management role that would have required that she work more than a 40-hour work week, as she was planning to have a second child. She and Pontacq ultimately agreed that Medina would handle Metro LA2 and Metro LA3; Medina concedes that Pontacq was supportive of her decision to work only two of the three areas. Medina testified that she was "fine" with the reconfiguration decision because she was going to remain involved with "the old Central West" territory she had cultivated. The company hired a new sales person, Judy Lu, to manage the Metro LA1 territory.

D. Loss Of The Regent Beverly Wilshire Hotel Account, July 2004

The Regent Beverly Wilshire Hotel was an account within Medina's territory. Pontacq contends, in fact, that it was Yon-Ka USA's "most prestigious account." In July 2004, Pontacq learned that Yon-Ka USA had lost the Regent Beverly Wilshire account. Medina acknowledged at her deposition that "the responsibility was [hers]," as she was the salesperson on the account. In her declaration, however, she explains that the Regent Beverly Wilshire's spa director told her in late July 2004 that the hotel would no longer carry Yon-Ka products because "they needed to align themselves with products that were more exclusive than Yon-Ka's were."

On August 9, 2004, Muhlethaler wrote Pontacq, noting her "total dismay and [s]hock" at the loss of the Regent Beverly Wilshire account, which she characterized as Yon-Ka's "jewel landmark account in the United States" and "by far the most mediatic [sic] establishment for our company on this other side of the Atlantic ocean for our PR department." Muhlethaler asked Pontacq to contact her "to provide [her] with more information as well as what sanctions [he] intend[ed] to take towards the personnel of [his] responsible for this terrible negligence." Pontacq refused to sanction Medina.

E. Fourth Quarter FY 2004 Sales Figures

Yon-Ka's fiscal year begins on September 1 and ends on August 31. Medina performed well during the first three quarters of fiscal year 2004, but failed to meet her sales goals in the fourth quarter. Pontacq found the results particularly troubling because the company had hired an account coordinator to support Medina, thus incurring additional costs. It is undisputed that Pontacq did not communicate any such concerns to Medina. Pontacq compiled the following sales statistics from Yon-Ka's business records: Yon-Ka USA FY 2003 and 2004 Total 4th Total Territory FY after 3 Increase Quarter Increase after 4 Increase quarters quarters Metro LA1 (Lu) Metro LA2 (Medina) Metro LA3 (Medina)

In September 2004, Medina flew to Yon-Ka USA's national headquarters in New Jersey to participate in a national Sale-A-Thon competition. Medina's presentation, which was to occur on the last day of the three-day Sale-A-Thon, was to be 50 minutes long, followed by a 10 minute question-and-answer session. On the event's first day, September 16, 2004, Pontacq told her that she would present the following day, and that her scheduled 50-minute talk would be shortened to 15 minutes. Medina placed last in the competition, which was judged and voted on by the Yon-Ka USA sales force.

Both parties agree that Medina first told Pontacq about her pregnancy during the Sale-A-Thon event. Medina asserts she informed Pontacq of her pregnancy on the first day of the competition, and that "right after[ward]," Pontacq announced that she would present the following day and that her presentation would be limited to 15 minutes. Medina contends she "got the distinct impression that [Pontacq] already knew" about her pregnancy before she told him the news. Pontacq, by contrast, states that Medina informed him of the pregnancy "[a]t the end of the competition."

G. Sales Goals, September — November 2004

At the end of September 2004, the Metro LA3 territory ranked 10th out of 17 territories in terms of the percentage of sales goals attained, while the Metro LA2 territory ranked 14th. By the end of October 2004, Metro LA 3 and LA2 ranked 13th and 14th respectively. When November 2004 closed, Metro LA 2 and LA3 ranked 10th and 11th respectively. By contrast, Metro LA1, managed by Lu, ranked 3d in September, 4th in October, and 1st in November.

H. Attempted Resignation, October 2004

Medina testified at deposition that she offered to resign in an October 20, 2004 conversation with Pontacq "out of frustration because [she] felt that [she] was doing everything that [she] possibly could to make [her] numbers . . . [a]nd [she] felt that [Pontacq] . . . had begun badgering [her]." Pontacq refused to

accept Medina's resignation. He said that he did not want her to resign, that he wanted to work with Medina to make her territory successful, and that he wanted her to be successful.

Throughout October and November 2004, Medina and Pontacq conversed and exchanged emails regarding Medina's sales figures. Sometime in October 2004, Medina told Pontacq that she was finding it difficult to open new accounts, and Pontacq offered her the use of two educators and a telemarketer to help her increase sales. No other salesperson was assigned an account coordinator, two educators, and a telemarketer. On October 26, 2004, Medina wrote Pontacq an email thanking him for his support.

I. Second Territorial Reconfiguration

By mid-December 2004, Metro LA2 and LA3 ranked 15th and 16th out of 17 territories in terms of percentage of sales goals attained. At her deposition, Medina acknowledged that Pontacq had reason to be concerned about the performance of her territories. She also testified that Pontacq had the right to take whatever steps he believed were appropriate to increase sales in her territories.

Muhlethaler continued to pressure Pontacq to take immediate steps to increase sales in Medina's territories. In December 2004, Pontacq proposed that Medina's Metro LA2 territory be reconfigured yet again, and that Metro LA2 and LA3 be joined into a single territory, renamed Metro LA2. Defendants contend that Pontacq explained the proposed reconfiguration to Lu and Medina, and told Medina that if her territory were smaller, she could focus on providing more service to existing clients, and spend more time soliciting new business. He assured Medina that the reconfiguration was not "punitive," but was designed to help the territory's sales grow.

From December 16, 2004 through the first week of January 2005, Pontacq and Medina repeatedly discussed the specifics of the reconfiguration. Medina proposed that 24 smaller accounts be transferred from her territory to Metro LA1. In the end, 13 of her accounts were transferred. At her deposition, she characterized these 13 accounts as "smaller accounts" and indicated that she believed the reconfiguration was "a good strategy." Pontacq states that the accounts were in the southernmost portion of Metro LA2 — i.e., the portion abutting Lu's Metro LA1. He asserts that the geographic area removed from Medina's Metro LA2 "was experiencing a [tepid] sales time with not a single new account brought on board by [Medina] for more than 9 months."

In her declaration, Medina contends that the transferred accounts made up 24 percent of her sales for the first quarter of FY 2005. The accounts were also partly responsible for a 13 percent growth that the territory experienced in the first quarter of FY 2005. Medina acknowledges that her sales goals were adjusted to reflect the change in her accounts.

The reconfiguration plan, which transferred portions of Metro LA2 to Lu, and merged Metro LA2 and LA3, was approved by Muhlethaler, who wrote Pontacq on December 31, 2004, stating: "I fully support and validate the corporate decision related to the geographic revamping of Metro LA1 and Metro LA2. . . . Our concerns, as expressed to you on many occasions are the totally inexplicable failing results of Metro LA 2 and Metro LA3, whereas all the other territories nationwide are performing extremely well."

Pontacq insists that he never told his supervisors in France that Medina was pregnant, and asserts that he and his supervisors never discussed Medina's pregnancy at any time, much less in connection with the performance of her territories. Medina, however, points to a May 6, 2005 letter from Muhlethaler to Pontacq, in which she refers to Medina's "disability leave."

J. Medina Takes Maternity Leave, February 2005

By the end of January 2005, Medina's new Metro LA2 territory ranked 17th of 17 in terms of percentage of sales goal attained. Lu's Metro LA1, by contrast, was the top performing territory. In early February 2005, Yon-Ka France advised Pontacq that "unless [Metro LA2] met its sales goals for the second quarter ( by the end of February 2005), it was likely that Yon-Ka USA would no longer be able to afford Burton's salary and [would] be forced to terminate Burton's employment."

Sometime in February 2005, Pontacq learned that the Four Seasons Hotel had stopped buying products from Yon-Ka USA in January 2005. Pontacq asserts that the Four Seasons account was the "most prestigious hotel spa" in the Metro LA2 territory other than the previously lost Regent Beverly Wilshire account. Nonetheless, he maintains that he again "stood up for [Medina] to the parent company in France and refused to terminate [her] employment or discipline her."

On February 8, 2005, Pontacq told Medina for the first time that Yon-Ka France required each territory to generate $120,000 in sales for each employee associated with it. According to Medina, "the L.A. 2 3 territories had met this requirement prior to the reconfiguration, and for the final figures that marked the end of the first quarter of FY 2005."

On February 10, 2005, Medina informed Yon-Ka USA that her doctor had placed her on early maternity leave, effective immediately. Burton assumed responsibility for Metro LA2 and reported directly to Pontacq. During Medina's maternity leave, Burton performed competently and maintained sales in the territory. Medina gave birth on March 16, 2005. In April 2005, Burton told Pontacq that she did not want to return to being an account coordinator when Medina returned from maternity leave, and said that she wanted to become a Regional Sales Manager in charge of a territory. Pontacq believed that Burton would leave the company if she were returned to an account coordinator position.

K. Third Territorial Reconfiguration

In April and May 2005, while discussing the Metro LA2 territory with his supervisors in France, Pontacq explained that Burton was performing well. They agreed that — given Burton's performance, Pontacq's fear that she would leave the company if she continued as an account coordinator, and the prior performance of the Metro LA2 territory — the Metro LA2 territory should be further reconfigured. Under this plan, the territory was split to form Metro LA2 — West and Metro LA2 — East. Burton was promoted to Regional Manager in charge of Metro LA2 — East and was to report to another supervisor. Medina was to continue as Zone Leader for Metro LA — West and maintain her reporting relationship with Pontacq. Because Medina was no longer going to supervise Burton, her salary was reduced to reflect this fact. Pontacq advised Medina of the reconfiguration by email on May 7, 2005.

On May 31, 2005, the day before Medina was scheduled to return to work, she notified the company of her resignation, effective June 1, 2005.

II. DISCUSSION

A motion for summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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.PROC. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case. See id. If the moving party meets its initial burden, the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); FED.R.CIV.PROC. 56(e).

In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving party. See T. W. Electric Service, Inc. v. Pacific Electric Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987). The evidence presented by the parties must be admissible. FED.R.CIV.PROC. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 56 (2d Cir. 1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

B. Standard Governing FEHA Discrimination Claims

FEHA prohibits employers from discriminating against employees on certain enumerated grounds, including on the basis of an employee's sex. CAL. GOV'T. CODE § 12940(a). The statute defines "sex" as including "pregnancy, childbirth, or medical conditions related to pregnancy or childbirth." CAL.GOV'T. CODE § 12926(p). In evaluating discrimination claims under FEHA, California looks to federal precedent governing analogous federal discrimination laws. See Guz v. Bechtel Nat'l, 24 Cal.4th 317, 354 (2000); Caldwell v. Paramount Unified School District, 41 Cal.App.4th 189, 195 (1995); Mixon v. FEHC, 192 Cal.App.3d 1306, 1317 (1987).

Like Title VII and ADEA plaintiffs, a FEHA plaintiff may establish a prima facie case of discrimination either by adducing direct evidence of discriminatory intent, or by satisfying her burden under the McDonnell Douglas test. See Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2004) ("For a prima facie case, Vasquez must offer evidence that `give[s] rise to an inference of unlawful discrimination,' either through the framework set forth in McDonnell Douglas Corp. v. Green or with direct or circumstantial evidence of discriminatory intent"); Cordova v. State Farm Ins. Companies, 124 F.3d 1145, 1148 (9th Cir. 1997) ("To establish a prima facie case, a plaintiff must offer evidence that `give[s] rise to an inference of unlawful discrimination.' . . . `The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas . . ., or by more direct evidence of discriminatory intent'"); Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) ("The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. . . . or by more direct evidence of discriminatory intent"); see Guz, 24 Cal.4th at 354 ("This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially").

Where plaintiff relies on circumstantial, as opposed to direct, evidence of discriminatory intent, a burden-shifting analysis applies. In McDonnell Douglas Corp. v. Green, the Supreme Court held that the plaintiff carries the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. "The prima facie case, once established, results in a `presumption that the [defendant] unlawfully discriminated against the [plaintiff].'" Lessard v. Applied Risk Management, 307 F.3d 1020, 1025 (9th Cir. 2002) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment action being challenged. Assuming defendant carries this burden, plaintiff must then demonstrate that defendant's asserted reason is pretextual. McDonnell Douglas, 411 U.S. at 802, 804; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993); Burdine, 450 U.S. at 252-53.

1. Evidentiary Rulings

The court has sustained evidentiary objections to much of the evidence Medina offers to establish that defendants acted with discriminatory animus. This evidence includes: (1) Pontacq's "pregnancy email," (2) Kriensky's statement to Medina, after she announced her first pregnancy, that Waldorf and Pontacq had questioned "where [her] priorities lay regarding [her] career with Yon-Ka"; (3) Medina's assertion that she "found out later that the Yon-Ka directors in France . . . didn't like to hire women of child-bearing ages," and that this sentiment was "well-known in the New Jersey office"; (4) Medina's statement at her deposition that "Jessica" told her "Delphine" said that the Muhlethaler sisters had commented that they disliked hiring women of childbearing age because it was bad for business; (5) Hannaway's declaration; and (6) Medina's statement that she told Pontacq that "he should be careful about what he says regarding a sensitive issue like someone's pregnancy" and that, after the conversation got heated, she stated, "I quit — I'm doing everything possible to reach my goals, and now you say my pregnancy's a problem. I'm not going to let you make me feel bad for having a baby."

A trial court can only consider admissible evidence in ruling on a motion for summary judgment. See FED.R.CIV.PROC. 56(e); Orr, 285 F.3d at 773; Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988). Thus, in Orr, the Ninth Circuit affirmed a district court's decision to exclude, at summary judgment, evidence offered by the non-moving party on the grounds that the evidence was improperly authenticated and constituted hearsay. See Orr, 285 F.3d at 771 (affirming the entry of summary judgment against plaintiff based on the district court's finding "that most of the evidence submitted by Orr in support of her opposition to BOA's motion for summary judgment was inadmissible due to inadequate authentication and hearsay"); see also Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924, 935-36 (9th Cir. 2002) (holding that the district court did not abuse its discretion in excluding hearsay evidence and evidence that violated the best evidence rule in deciding a summary judgment motion), amended and superceded on other grounds, 313 F.3d 1093 (9th Cir. 2002); Groppi v. Barham, 157 Fed. Appx. 10, 11-12 (9th Cir. Nov. 14, 2005) (Unpub. Disp.) ("The district court did not abuse its discretion in applying the best evidence rule to exclude Dr. Martin Keusten's declaration because Groppi failed to provide the records upon which the declaration was based and failed otherwise to explain their absence").

It is true that the United States Supreme Court has recognized that "Rule 56 does not require the nonmoving party to depose her own witnesses," and for that reason, has held that the evidence offered by the non-moving party at summary judgment need not be "in a form that would be admissible at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Evidence offered in opposition to summary judgment must, however, comply with Rule 56's requirements. See Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) ("To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, so long as the party satisfies the requirements of Federal Rules of Civil Procedure 56").

Medina's evidence fails to comply with even this comparatively lenient requirement. As noted, Rule 56(e) states that affidavits must set forth facts that "would be admissible in evidence" and that "copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." FED.R.CIV.PROC. 56(e); see also Orr, 285 F.3d at 773 (evidence must be admissible to be considered at summary judgment); ACandS, Inc., 5 F.3d at 1261 ("Rule 56(e) requires that documents relied upon in an affidavit presented in a summary judgment motion or opposition thereto be attached to the affidavit"); Blain's Helicopters, 831 F.2d at 924 (rejecting a party's argument that documents did not need to be authenticated to be considered in ruling on a summary judgment motion, the court noted Celotex's statement that evidence need not be in a form that would be admissible at trial to be used in opposing summary judgment, but observed that "[t]he Celotex court . . . was referring to the other means enumerated in Rule 56(c) for persuading the court that summary judgment is inappropriate including affidavits, which are evidence produced in a form that would not be admissible at trial. The quoted sentence upon which Canada relies should not be read to allow evidence inadmissible in form if such evidence is not allowed by Rule 56(c)").

Medina's references to the content of emails she received from Pontacq violate the best evidence rule. Moreover, she has failed to attach copies of the emails to which she refers in her declaration, including the "pregnancy email" on which she relies heavily to show discriminatory animus. Under Rule 56(e) and ACandS, therefore, evidence of the emails is inadmissible even for summary judgment purposes. See ACandS, 5 F.3d at 1262 (district court did not abuse its discretion in refusing to consider affidavits that referred to documents that were not attached); Peterson v. United States, 694 F.2d 943, 945 (3d Cir. 1982) (failure to attach key document to affidavit violated Rule 56(e) and made summary judgment improper).

In addition, Medina bases much of her declaration on hearsay evidence that will not be admissible at trial. Medina will not, for example, be able to take the witness stand at trial and recount statements that constitute hearsay, double hearsay, or triple hearsay. Compare J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990) (hearsay evidence contained in an affidavit may be considered at summary judgment if the declarant could later present the evidence through direct testimony); Williams v. Borough of W. Chester, 891 F.2d 458, 465 n. 12 (3d Cir. 1989) ("hearsay evidence produced in an affidavit opposing summary judgment may be considered if the out-of-court declarant could later present that evidence through direct testimony, i.e. in a form that would be admissible at trial" (internal quotations omitted)). Portions of her declaration, including her statement that she "found out later that the Yon-Ka directors in France . . . didn't like to hire women of child-bearing age," and that this sentiment was "well-known in the New Jersey office," also fail Rule 56(e)'s requirement that "affidavits . . . be made on personal knowledge . . . [and] show affirmatively that the affiant is competent to testify to the matters stated therein." FED.R.CIV.PROC. 56(e). Consequently, the court cannot consider the evidence in determining whether Medina has raised triable issues of fact regarding her discrimination claim. 2. Whether Medina Has Established A Prima Facie Case By Adducing Direct Evidence Of Discrimination

Direct evidence is "evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Vasquez, 349 F.3d at 640 (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (alterations original)). "When the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial." Godwin, 150 F.3d at 1221. As evidence that her alleged constructive discharge was motivated by discriminatory animus, Medina cites Pontacq's late September 2004 "pregnancy email," in which he purportedly said that her pregnancy was "bad" or "bad timing" for the company. Medina has adduced no admissible evidence of this communication, however, and the court therefore concludes that she has not offered sufficient direct evidence of discrimination to prove a prima facie case. As a result, Medina must make out a prima facie case of pregnancy discrimination through circumstantial evidence, which is evaluated under the three-part test articulated in McDonnell Douglas. 3. Whether Medina Has Established A Prima Facie Case Under The McDonnell Douglas Framework

Under the three-part burden-shifting scheme set forth in McDonnell Douglas, the amount of proof necessary to establish a prima facie case at the summary judgment stage is minimal, and need not rise to a preponderance of the evidence. Wallis, 26 F.3d at 888. Rather, plaintiff need only adduce proof that "`gives rise to an inference of unlawful discrimination.'" Id. This requires "very little" evidence. Caldwell, 41 Cal.App.4th at 197 (quoting Sischo-Nownejad, 934 F.2d at 1111).

McDonnell Douglas, a refusal to hire case, states that a plaintiff may establish a prima facie case "by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas, 411 U.S. at 802. The Court, however, cautioned against rigid application of this test, noting that "facts necessarily will vary in [discrimination] cases, and the specification above of the prima facie proof required from [plaintiff] is not necessarily applicable in every respect to differing factual situations." Id. at 802 n. 13.

Courts evaluating discriminatory discharge claims have thus made various adjustments to the McDonnell Douglas formulation. In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), for example, the Supreme Court let stand "the District Court's finding that respondent satisfied the minimal requirements of . . . a prima facie case by proving (1) that he is black, (2) that he was qualified for the position of shift commander, (3) that he was demoted from that position and ultimately discharged, and (4) that the position remained open and was ultimately filled by a white man." Id. at 506. Other courts have required that plaintiff show that "(1) [she] belongs to a protected class, (2) [she] was performing according to [her] employer's legitimate expectations, (3) [she] suffered an adverse employment action, and (4) other employees with qualifications similar to [her] own were treated more favorably." Godwin, 150 F.3d at 1220.

In Guz v. Bechtel Nat., Inc., 24 Cal.4th 317 (2000), the California Supreme Court synthesized these formulations into a general statement of the three-part test. It held that "the plaintiff must provide evidence that (1) [she] was a member of a protected class, (2) [she] was qualified for the position he sought or was performing competently in the position [she] held, (3) [she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." Id. at 355.

Defendants concede that Medina belongs to a protected class. For purposes of this motion, moreover, they do not challenge her assertion that she was constructively discharged. Constructive discharge, if proven, can constitute adverse employment action. Grimes v. West Group Co., 26 Fed. Appx. 641, 643 (9th Cir. Nov. 27, 2001) (Unpub. Disp.) ("If proven, constructive discharge is legally equivalent to a termination, and therefore can constitute an adverse employment decision for purposes of establishing a prima facie case of discrimination" (internal citation omitted)); Jordan v. Clark, 847 F.2d 1368, 1377 n. 10 (9th Cir. 1988) ("If shown, constructive discharge is an adverse employment action").

Defendants contend, however, that Medina cannot establish a prima facie case because (1) she was not performing her job adequately at the time of the alleged constructive discharge and (2) she cannot show that the employment actions constituting the alleged discharge occurred under circumstances suggesting discriminatory intent.

a. Qualified For The Position/Satisfying The Employer's Expectations

Defendants first argue that Medina was not performing her employment duties satisfactorily, as evidenced by declining sales performance and the loss of the two "most prestigious" accounts in her territory, the Regent Beverly Wilshire Hotel and the Four Seasons Hotel. Consequently, they assert, Medina cannot show that she was meeting Yon-Ka USA's legitimate expectations.

Medina counters that she "was performing her job competently in that she was on leave and not required to perform at all at the time of her constructive termination." In essence, Medina contends that defendants may not rely on her performance prior to the commencement of her maternity leave because she was on leave on May 31, 2005, the day she resigned her position with Yon-Ka USA. The court disagrees, not least because Medina expressly argues that defendants, after learning of her pregnancy on September 16, 2004, deliberately "orchestrated" her failure as a sales agent "[o]ver the ensuing months . . . by reconfiguring her territory and taking many of her accounts away from her, all in a concerted effort to drive her out of the company." In her complaint, Medina alleges that her constructive discharge resulted from the following series of events, most of which occurred before she took maternity leave on February 10, 2005:

• After learning of her pregnancy on September 16, 2004, Pontacq sent her an email telling her that her pregnancy was "bad" or "bad timing" for the company.

• In December 2004, Pontacq announced that he would reconfigure Medina's territory and transfer a number of her accounts to Lu. The reconfiguration went into effect in early January 2005, causing Medina "to lose a number of her solid, higher quality accounts."

• Pontacq then "proceeded to set up [Medina] for failure by stressing the importance of inflated sales goals for the coming months and quarter." According to Medina, these goals "were virtually impossible to meet, especially considering the restructuring of [Medina's] territory and loss of significant accounts."

• On her doctor's recommendation, Medina took early maternity leave on February 10, 2005.

• In early May 2005, while Medina was still on maternity leave, Pontacq reconfigured her territory yet again, removed her former subordinate from her supervision, and decreased her salary and bonus structure. Medina submitted her resignation on May 31, 2005.

As these allegations make clear, Medina contends that Pontacq engaged in a months-long scheme to ensure her poor performance by reconfiguring her territories multiple times and removing key accounts from her portfolio. Whether Medina was performing adequately for purposes of proving a prima facie case, therefore, must be assessed by looking to the period of time during which these activities occurred, not by focusing on the actual date of Medina's resignation. An employer need not ignore failing, pre-leave performance if that performance gives it reason to terminate an employee, or, in this case, to criticize an employee's performance and reconfigure her territories. See, e.g., Kohls v. Beverly Enterprises Wisconsin, Inc., 259 F.3d 799, 807 (7th Cir. 2001) ("Beverly has asserted that Kohls' deficiencies were the reason for her termination and that she would have been terminated regardless of her [maternity] leave, and Kohls has not presented sufficient evidence for a fact finder to conclude otherwise"); Armstrong v. Systems Unlimited, Inc., 75 Fed. Appx. 550 (8th Cir. Sept. 8, 2003) (Unpub. Disp.) (holding that an employer was justified in demoting plaintiff after she returned from maternity leave because plaintiff could not rebut the employer's evidence that she was having performance problems before she went on leave and that additional performance problems were discovered while she was on leave).

The question, however, is whether in this case the court should use as its formulation of the second element of the prima facie case that Medina must show she was performing satisfactorily, or to her employer's expectations, or rather whether it should require that she show she was qualified for the position. See Guz, 24 Cal.4th at 355 (permitting either formulation); see also Hicks, 509 U.S. at 506 (plaintiff must establish that she was "qualified" for the position from which she was removed); Godwin, 150 F.3d at 1220 (plaintiff must establish that she "was performing according to [her] employer's legitimate expectations"). These differing formulations highlight a lack of clarity in the case law as to whether evidence that supports a defendant's rationale for taking adverse employment action — often, as in this case, a claim that the employee's performance was poor — can also be used to defeat the employee's prima facie showing. See, e.g., Lex K. LarsonEMPLOYMENT DISCRIMINATION, § 808[2] at p. 8-119 (2000) ("The qualification requirement [of the prima facie case] in a discharge context can [often] become confused with the employer's showing of a legitimate nondiscriminatory reason for discharge").

In Caldwell, the California Court of Appeal addressed the "adequate job performance" versus "qualified for the position" dichotomy, citing Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940 (8th Cir. 1994). The Eighth Circuit in Davenport had criticized the district court's formulation of the second prong of the prima facie case as "adequate job performance," stating:

"First, recognizing that the prima facie case in discrimination cases varies somewhat with the specific facts of each case, we believe that the second element in the present case should have been phrased in terms of whether plaintiff was `qualified' for his position. . . . Second, by requiring plaintiff to disprove the alleged conduct violations in order to establish his prima facie case, the district court essentially required plaintiff, at the outset, to disprove defendant's alleged business reasons for its adverse employment action — in other words, to prove pretext and the ultimate issue of intentional discrimination. The prima facie burden is not so onerous. Third, taken to its logical extreme, the district court's reasoning could have ended the inquiry prematurely, thus denying plaintiff the opportunity to show that, even if these incidents did occur, defendant unlawfully responded by treating plaintiff differently from others who were similarly situated, on account of his race. We hold that plaintiff did show that he was qualified for the teaching and coaching positions which he had held for several years, and that he therefore met his burden of establishing the second element of his prima facie case, at least to the extent necessary to withstand a motion for summary judgment." Id. at 944 (citations omitted).

While the Caldwell court adopted and applied a "satisfactory job performance" test on the facts before it, it acknowledged that a "qualified for the position" test may be more appropriate in other factual situations and observed in dicta that Davenport's

"conclusion is consistent with McDonnell Douglas, where the Supreme Court stated that the prima facie showing required in a given case must be consonant with the facts of the case. Whether the second element of a plaintiff's prima facie case of employment discrimination is described as `qualification for the position' or `satisfactory job performance,' it is clear that, where a plaintiff claims not that he was a model employee but only that other employees with equivalent foibles did not suffer his fate, an employer cannot prevail simply by citing deficiencies in the plaintiff's employment record." Caldwell, 41 Cal.App.4th at 200 n. 6.

The Ninth Circuit, too, has cautioned against an overly restrictive reading of the second prong of the McDonnell Douglas test. In Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654 (9th Cir. 2002), the court emphasized that "[t]he requisite degree of proof necessary to establish a prima facie case . . . on summary judgment is minimal." Id. at 659 (quoting Wallis, 26 F.3d at 889 (alterations and emphasis original)). The court then concluded that the district court had erred by requiring plaintiff to show not only that he was qualified for the position, but that "he was doing his job well enough to eliminate the possibility that he was laid off for inadequate job performance." Id. This analysis, the Ninth Circuit stated, "conflate[s] the minimal inference needed to establish a prima facie case with the specific, substantial showing Aragon must make at the third stage of the McDonnell Douglas inquiry to demonstrate that Republic's reasons for laying him off were pretextual." Id. Because plaintiff asserted that his performance was equal to his coworkers, and showed that he had not received formal write-ups for poor performance or disciplinary notices, the court held that he had "met his minimal prima facie burden of establishing that he was qualified for the" position from which he was terminated. Id. at 660. See also Hire v. Hyperion Solutions Corp., No. CV-03-1744-ST, 2004 WL 2260669, *8 (D. Or. Oct. 7, 2004) ("Hyperion . . . contends that Hire was not qualified for her position because she failed to meet her sales quotas, especially her quota for the fourth quarter of fiscal year 2003. This argument somewhat conflates the issue at the prima facie stage, where a plaintiff need only make a minimal showing that she is qualified, with the issue at the third stage that an employer's reasons were not pretextual, which a plaintiff can only overcome with a specific, substantial showing. The Ninth Circuit has warned against conflating these two stages. Aragon v. Rep. of Silver State Disposal, 292 F.3d 654, 659 (9th Cir. 2002). Indeed, in a case where the employer argued the plaintiff could not establish he was performing his job satisfactorily, the Ninth Circuit deferred discussion of that issue until the pretext stage. Messick [ v. Horizon Indus. Inc., 62 F.3d 1227, 1229-30 (9th Cir. 1995)]").

Medina alleges that, after learning of her pregnancy on September 16, 2004, defendants deliberately "orchestrated" her failure "[o]ver the ensuing months . . . by reconfiguring her territory and taking many of her accounts away from her, all in a concerted effort to drive her out of the company." She also alleges that, after learning of her pregnancy, Pontacq sent a number of emails singling her out for her poor performance, apparently in an effort to justify the territorial reconfiguration he announced in December 2004. In essence, Medina argues that defendants deliberately documented a record of poor performance on her part after learning of her pregnancy in September 2004. Given that defendants do not dispute for purposes of this motion that they constructively terminated Medina, the court finds that Medina has satisfied her minimal burden under the second prong of the prima facie test because she has shown that she was qualified for the position.

Medina was hired by Yon-Ka USA in September 2001 and apparently performed well for approximately three years. During this time, she was promoted and assigned to manage subordinate salespersons. Although she voluntarily relinquished her management role in March 2003, it is undisputed that Pontacq asked her to resume management responsibilities in April 2004, when he suggested that she oversee the newly created Metro LA 1, 2, and 3 territories. In June and July 2004, Pontacq asked Medina to train several new hires: Burton, Lu, Hannaway (a Zone Leader), and Johnston (a Regional Sales Manager). This evidence establishes that Medina was qualified for her position. See Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 575-76 (6th Cir. 2003) ("The prima facie burden of showing that a plaintiff is qualified can therefore be met by presenting credible evidence that his or her qualifications are at least equivalent to the minimum objective criteria required for employment in the relevant field. Although the specific qualifications will vary depending on the job in question, the inquiry should focus on criteria such as the plaintiff's education, experience in the relevant industry, and demonstrated possession of the required general skills"); MacDonald v. E. Wyo. Mental Health Ctr., 941 F.2d 1115, 1121 (10th Cir. 1991) (holding that a plaintiff can show that she is qualified by presenting "credible evidence that she continued to possess the objective qualifications she held when she was hired").

Defendants emphasize that Medina's sales performance had been declining since the fourth quarter of FY 2004, which ended on August 31, 2004. Of 17 territories nationwide, her Metro LA2 and LA3 territories ranked 10th and 14th at the end of September 2004, and dropped to 15th and 16th by the end of December 2004, when Pontacq announced that he intended to reconfigure Medina's territory and transfer 13 of her accounts to Lu. While this record of declining performance might, in some cases, be sufficient to support a conclusion that plaintiff had not met her minimal prima facie burden, it cannot have that effect here, where Medina alleges that, by reconfiguring her territories and removing key accounts, defendants ensured that she performed poorly. Were the court to conclude that Medina had not proved a prima facie case, it would effectively prevent any analysis as to defendants' motivations for taking the actions they did. This would prevent a plaintiff such as Medina from ever proving discrimination based on circumstantial evidence.

b. Circumstances Suggesting Discriminatory Intent

Defendants next argue that Medina "has no evidence that would suggest that Yon-Ka USA's decision to reconfigure her territory after she was pregnant, or that Mr. Pontacq's reasons for allegedly sending her emails regarding her poor performance, was because of her pregnancy." This argument is directed at the fourth prong of the prima facie test, which, under Guz, requires that plaintiff show "some other circumstance suggest[ing] discriminatory motive." Guz, 24 Cal.4th at 355. In cases alleging disparate treatment, this requirement is satisfied if plaintiff shows that "other employees with qualifications similar to [her] own were treated more favorably." Godwin, 150 F.3d at 1220. Where appropriate, the requirement may also be met with evidence that the employee was terminated shortly after she revealed her protected status or activity. See Linder v. Pacific Dataware, Inc., 142 F.3d 444, 1998 WL 196688, *1 (9th Cir. 1998) (Unpub. Disp.) ("Because Linder established that (1) she was a member of a protected class (she was pregnant), (2) she suffered an adverse employment action (she was fired) and (3) the temporal proximity between informing her employer of her pregnancy and being fired supports an inference of causation (six hours), Linder established a prima facie case of discrimination"); Cleese v. Hewlett-Packard Co., 911 F.Supp. 1312, 1320 (D. Or. 1995) ("The fact that [plaintiff] was terminated approximately one month after her pregnancy became known to Hewlett-Packard is sufficient to raise a question concerning Hewlett-Packard's motives in terminating her").

Medina may rely on the temporal proximity between the date Pontacq learned of her pregnancy and the onset of the events constituting the purported constructive discharge to satisfy her burden of showing "some other circumstance suggest[ing] discriminatory motive." Guz, 24 Cal.4th at 355. The evidence shows that Medina informed Pontacq of her pregnancy on September 16, 2004. In October and November, he repeatedly emphasized her poor performance in emails and conversations. In December 2004, Pontacq announced that he was going to restructure Medina's territory. The reconfiguration went into effect in January 2005, after which Medina's performance continued to decline, in part, she alleges, because the restructuring stripped her of her highest-performing accounts. Medina began her maternity leave on February 10, 2005. There were no further reconfigurations of the Metro LA territories until early May 2005, just a few weeks before Medina was scheduled to return to work.

At the prima facie stage, where Medina need present only minimal evidence, this chronology is sufficient to show "circumstance[s] suggest[ing] discriminatory motive." Guz, 24 Cal.4th at 355. Although Medina did not resign until eight months after Pontacq learned of her pregnancy, Medina argues, and the evidence suggests, that Pontacq took steps shortly after September 16, 2004 to highlight the fact that her performance did not meet the company's expectations, some of which had never been communicated before, and to cause her to fail by reconfiguring her territory and removing high-performing accounts from her portfolio. Drawing all inferences in favor of Medina, the court concludes that this circumstantial evidence is sufficient to satisfy Medina's minimal prima facie burden, as it shows that the adverse actions that constituted the alleged constructive discharge followed within a short time after Pontacq learned of her pregnancy.

4. Defendants' Non-Discriminatory Explanation

Having concluded that Medina has established a prima facie case of pregnancy discrimination, the burden shifts to defendants to articulate a legitimate, non-discriminatory reason for its adverse employment action. Burdine, 450 U.S. at 255, 101 S.Ct. 1089. Defendants argue, and Medina does not dispute, that they have satisfied this burden by adducing evidence that Medina's sales performance had been lagging since the final quarter of FY 2004, which ended on August 31, 2004.

5. Whether Medina Has Raised A Triable Issue Of Fact Regarding Pretext

To survive summary judgment, Medina must adduce evidence that defendants acted with discriminatory animus, or that their "proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256; Chuang v. University of California Davis, Board of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000). The evidence on which plaintiff relies need not be different than that which supports her prima facie case. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000); Snead v. Metropolitan Property Casualty Ins. Co., 237 F.3d 1080, 1094 (9th Cir. 2001); Chuang, 225 F.3d at 1127. When relying on circumstantial evidence to prove pretext, a plaintiff must produce specific and substantial evidence "that tends to show that the employer's proffered motives were not the actual motives because they are inconsistent or otherwise not believable." Chuang, 225 F.3d at 1222. See Morgan, 88 Cal.App.4th at 75 ("An employee in this situation cannot simply show the employer's decision was wrong, mistaken, or unwise. Rather, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, . . . and hence infer that the employer did not act for the [. . . asserted] non-discriminatory reasons," quoting Horn, 72 Cal.App.4th at 807 (internal quotations omitted)); see also Guz, 24 Cal.4th at 363 ("The authorities suggest that, in an appropriate case, an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions").

As noted, the temporal proximity between the day Pontacq learned of Medina's pregnancy and subsequent, adverse employment events is sufficient to establish the fourth prong of the prima facie test. To show pretext, however, temporal proximity is typically insufficient. Rather, California courts require more, looking not only to "the timing of the company's termination decision," but to "the identity of the person making the decision, and the terminated employee's job performance before termination." Flait v. North American Watch Corp., 3 Cal. App.4th 467, 479 (1992); see also Hanson v. Lucky Stores, Inc., 74 Cal.App.4th 215, 224 (1999). Pretext may also be inferred by looking at "the plaintiff's job performance, the timing of events, and how the plaintiff was treated in comparison to other workers." Colarossi v. Coty US Inc., 97 Cal.App.4th 1142, 1153 (2002) (citing Flait and Iwekaogwu v. City of Los Angeles, 75 Cal.App.4th 803, 816 (1999)). Compare Gemini Aluminum Corp., 122 Cal.App.4th at 1019-1020 (rejecting defendant's argument that a FEHA plaintiff cannot establish a prima facie case of retaliation by adducing "evidence of [the employer's] awareness of protected activity and the close timing of adverse action," distinguishing cases holding that timing alone is insufficient to show that the employer's stated, nondiscriminatory reasons are pretextual, and noting that the pretext cases were inapplicable because "[a] discussion of pretext is premature until the employee establishes the prima facie case and the employer offers a legitimate, nondiscriminatory reason for the adverse employment action").

In Flait, plaintiff was fired "only four months" after he confronted the company president for making offensive sexual remarks. Flait, 3 Cal.App.4th at 479-80. The court noted that the president was the "sole person charged with the decision to terminate [plaintiff's] employment," and that "no one . . . could recall looking at [plaintiff's] sales or any other records before terminating his employment." Id. It was undisputed that plaintiff's sales had increased by 60 percent immediately prior to his termination, and while he had received "a few verbal criticisms of his methods in the past," those criticisms "were counterbalanced by compliments" regarding his salesmanship." Id. at 480. Under these circumstances, the court found that the plaintiff had raised a triable issue regarding pretext, which could be inferred from the timing of the termination decision, the identity of the person making the decision, and plaintiff's job performance prior to termination. Id. at 479-80.

The court in Gemini Aluminum Corp. found a sufficient showing of pretext under similar circumstances. There, plaintiff was discharged just a week after he threatened to take his religious discrimination complaint to the "labor board." Id. at 1023. According to the court, "[m]ost telling was [plaintiff's] job performance before termination." Id. The record showed that plaintiff had perfect attendance throughout his 15-month tenure with the company, worked double shifts when necessary, and voluntarily put in 12-hour days. Id. Indeed, the company's president had testified that he was "the most qualified and experienced individual he had ever hired in his 45 years in the . . . business." Id. at 1024. The court also found that the company's proffered reason for the termination — that plaintiff had failed to submit documentation supporting his request for a religious leave of absence — was not credible because it never asked plaintiff for documentation. Id. at 1023.

By contrast, Medina acknowledges that her performance had been declining since the fourth quarter of FY 2004. By mid-December 2004, her Metro LA 2 and Metro LA 3 territories ranked 15th and 16th out of 17 territories nationwide in terms of percentage of goals attained. Medina herself acknowledges that Pontacq had reason to be concerned about the performance of her territories, and testified that Pontacq had the right to take whatever steps he believed were necessary to increase sales in her territories. Although Medina argues that Pontacq reconfigures territories "on [a] whim," she has adduced no probative evidence to controvert Pontacq's assertion that he regularly reconfigures underperforming territories to maximize a sales person's ability to solicit new clients and grow existing business. She does not, for example, proffer evidence of instances where Pontacq reconfigured territories even though they were performing at or above expectations. Indeed, Pontacq first reconfigured Medina's territory in May 2004, before Medina became pregnant, because he believed that the territory would be more profitable if it were divided into three smaller territories. Medina testified that she was "fine" with this reconfiguration, and does not argue that it led to her subsequent poor performance. Indeed, she acknowledges that her sales goals were adjusted after each reconfiguration.

It is also undisputed that Burton performed well during Medina's maternity leave. Although Medina implies that Yon-Ka's desire to retain Burton was merely a pretext for the May 2005 territorial reconfiguration, she adduces no admissible evidence to suggest the stated reason was pretextual. Nor is the stated reason inherently lacking in credibility. Given Medina's poor track record in the months before she took maternity leave, Burton's satisfactory performance during Medina's leave, and Pontacq's belief that Burton would leave the company if she were returned to the account coordinator position, it was reasonable for Pontacq to try to maximize staff resources by giving Burton sales opportunities and limiting the number of accounts Medina would manage upon her return.

Taken together, the circumstantial evidence of discriminatory intent in this case is weak and insufficient to carry Medina's burden of providing "specific and substantial" evidence of pretext. It is true that Pontacq criticized Medina's performance in the two months after he learned of her pregnancy, and announced that he would reconfigure her territory about four months after he heard the news. Given Medina's indisputably poor performance during this period and the complete lack of other probative evidence suggesting discriminatory animus, however, a reasonable jury could not conclude, based on the temporal proximity between these events, that the sales territories were reconfigured because of Medina's pregnancy and not because of her performance. Accordingly, the court finds that Medina's pregnancy discrimination claim fails as a matter of law.

C. Medina's Remaining Claims

The parties agree that Medina's remaining claims for wrongful discharge in violation of public policy, failure to prevent discrimination, retaliation, and violation of the Pregnancy Leave Act stand or fall with her pregnancy discrimination claim. Because the court concludes that Medina cannot survive summary judgment on the pregnancy discrimination claim, it enters summary judgment against her on the remaining claims as well.

III. CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment is granted.