Opinion
A101135.
11-13-2003
MARIA BUENROSTRO, Plaintiff and Appellant, v. GUCKENHEIMER ENTERPRISES, Defendant and Respondent.
Maria Buenrostro appeals from the judgment for Guckenheimer Enterprises after Guckenheimers motion for summary judgment was granted on Buenrostros claims under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; hereafter FEHA) for pregnancy discrimination, and for wrongful termination in violation of public policy. We reverse.
I. Factual and Procedural Background
Buenrostro began work as a payroll administrator at Guckenheimer in June 1997. Her duties included inputting personnel data, such as pay rate changes, pay adjustments, garnishments and changes in employment status, for Guckenheimer employees in specific geographic regions. Performance of those duties required her to communicate frequently with managers at Guckenheimer facilities in her designated regions.
In August 1997, Buenrostro notified Guckenheimer she was pregnant. She took a six-week leave of absence for that pregnancy in February 1998, returning to work at Guckenheimer in April 1998. In April 2001, Buenrostro informed Guckenheimer that she was again pregnant and planned to take a leave of absence beginning in August 2001. Buenrostros employment with Guckenheimer was terminated on May 11, 2001.
Buenrostros complaint alleged that despite her satisfactory job performance and Guckenheimers need for workers with her qualifications, her employment was terminated because she was female and pregnant. Guckenheimer moved for summary judgment, asserting that Buenrostro was terminated because of insubordination and unsatisfactory job performance, not her pregnancy. In opposition, Buenrostro offered evidence to show that Guckenheimers stated reasons for her termination, poor attitude and performance, were untrue pretexts, and that the real reason for the termination was her pregnancy. The trial court found Buenrostro unable to raise a triable issue of material fact. It determined she had not introduced enough evidence to dispute that job performance was Guckenheimers reason for termination.
II. Discussion
Buenrostro argues that the judgment must be reversed because triable issues of fact exist regarding Guckenheimers reason for terminating her.
1. Law
Summary judgment is properly granted when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) We review de novo a grant of summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) For purposes of our review, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true." (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148.)
FEHA prohibits employers from discriminating on the basis of an employees pregnancy. (Gov. Code, § 12945.) To address claims brought under FEHA, California courts look to federal law interpreting the analogous title VII of the 1964 Civil Rights Act. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 195.)
To prevail on a claim for pregnancy discrimination, an individual must ultimately prove that he or she received an adverse employment decision because of pregnancy. However, direct evidence of discriminatory intent is rarely obtainable. For that reason, a framework of shifting burdens is utilized to resolve unlawful discrimination cases. (See St. Marys Honor Center v. Hicks (1993) 509 U.S. 502, 505-506; Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-255; McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 800-803.) That framework is also used in evaluating motions for summary judgment. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002.)
The framework consists of three stages. First, the plaintiff must establish a prima facie case. To do this, a plaintiff must present evidence that (1) he or she was a member of a protected class; (2) he or she was performing competently; (3) he or she suffered an adverse employment action, such as termination; and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) The evidentiary burden at this stage is minimal. (St. Marys Honor Center v. Hicks, supra, 509 U.S. at p. 506.) The employee need only offer evidence that gives rise to an inference of discrimination. (Ibid.)
Once the prima facie case is established, the burden shifts to the defendant to state a legitimate, nondiscriminatory reason for the adverse employment action. "The defendant need not persuade the court that it was actually motivated by the proffered reasons." (Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at p. 254.) It is sufficient for the defendants evidence to simply rebut the inference of discrimination supplied by the prima facie case and, therefore, raise a genuine issue of fact as to whether discrimination occurred. (Ibid.)
The third stage shifts the burden back to the plaintiff. He or she must present evidence that the employers stated legitimate reason for the adverse action was a pretext for discrimination. (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1003.) St. Marys Honor Center v. Hicks, supra, 509 U.S. 502, held that meeting this burden requires more than simply showing that an employers offered legitimate reason is untrue. The plaintiff must further demonstrate that the employers true reason was discrimination. (Id. at pp. 514-515.) However, the court stated as well that "rejection of the defendants proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and . . . upon such rejection, `[n]o additional proof of discrimination is required," (Id. at p. 511, fn. omitted.)
In the wake of Hicks, some courts "have concluded an employees prima facie case, even in the face of an employers showing of a non[discriminatory] reason for the adverse action, is alone sufficient to avoid summary judgment. Others have concluded Hicks requires the employee, once the employer has offered its nondiscriminatory reason, show both that the reason is false and that the true reason for the adverse action was a discriminatory animus. What has been described as the predominant view, however, is somewhere in between and requires the employee rebut the employers stated nondiscriminatory reason with substantial evidence of its falsity or present other evidence suggesting a discriminatory basis, or some combination of the two such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination." (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1004.)
The employee cannot "simply show the employers decision was wrong, mistaken or unwise." (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798.) Instead, he or she must "`demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employers proffered legitimate reasons that a reasonable factfinder could rationally find them "unworthy of credence," [citation], and hence infer "that the employer did not act for the [. . . asserted] non-discriminatory reasons."" (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005.)
2. Application
Buenrostro successfully met the minimal requirements for a prima facie case. The first element was satisfied because she was pregnant, and thus a member of a protected class, at the time of her termination, and the third element was satisfied because the termination was an adverse employment action. As detailed below, Buenrostro also made (at least) a prima facie showing of her competence (the second element) and of circumstances suggesting a discriminatory motive for her termination (fourth element).
Guckenheimer likewise met its burden of presenting nondiscriminatory reasons—insubordination and poor performance—for the termination. Buenrostro admitted to having problems returning telephone calls, and leaving callers on hold for unacceptable periods of time. Her 1998 performance evaluation stated that some managers considered her rude and abrupt. Her 1999 evaluation documented problems with unprofessionalism, returning telephone calls, and responding to requests. In January and February 2001, Buenrostro and her immediate supervisor were counseled about problems in their department, including Buenrostros attitude, and were warned that, absent improvement, personnel changes would be made. Buenrostro was suspended for three days around February 2, 2001, for insubordination, and was warned that further insubordination could result in termination. On May, 10, 2001, one day before Buenrostros termination, between 50 and 75 percent of 80 managers attending a semi-annual meeting voiced concerns about Buenrostros department. Moreover, Buenrostro had taken a pregnancy leave in 1998 without repercussion.
Thus, to avoid summary judgment, Buenrostro was required to present substantial evidence that the professed reasons for her termination were false, "or . . . evidence of a discriminatory animus or a combination of the two such that a reasonable trier of fact could conclude that the [employer] engaged in intentional . . . discrimination." (Hersant, supra, 57 Cal.App.4th at p. 1007.)
Buenrostro relies, in part, on the same performance evaluations cited by Guckenheimer to support her position that she was a "superb employee" and thus not terminated for poor performance and insubordination. The author of her 1998 evaluation indicated that he had "received very positive comments about Marias attitude and professional behavior. . . ." The 1999 evaluation states that "Marias performance over the past year has been outstanding," and that she has "done a great job." The 2000 evaluation again characterizes her performance as "outstanding" and commends her for absorbing extra work of a coworker on leave, always performing her duties on time, and handling difficult managers "with a smile."
Guckenheimer argues that the performance evaluations cannot support a finding of pretext because it is "undisputed fact that performance-related issues regarding the Payroll Department were raised and documented in January and February 2001," after the evaluations were made and before the company learned of Buenrostros pregnancy. It is true that the performance evaluations do not directly contradict Guckenheimers stated legitimate reason for termination. The 1998 and 1999 evaluations each complain of the same performance problems for which Guckenheimer allegedly terminated Buenrostro. All three of the evaluations were issued before the 2001 warnings that Buenrostros department must improve or terminations would be made. Thus, it is possible that Buenrostro was indeed fired for performance problems even though she was praised, to one extent or another, in each of her performance evaluations.
However, the evaluations do, in fact, lend support to the opposite conclusion. Buenrostros 2000 evaluation, her last one, specifically praised her for having a positive attitude when dealing with even difficult managers. That evaluation makes no mention of the attitude problem for which Buenrostro was allegedly fired several months after its issuance. Viewing the evaluations in favor of Buenrostro (Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at p. 148), they provide significant support for her claims that she was competent, that her attitude was acceptable, and that work performance was not the motivation behind her termination. (See Winarto v. Toshiba America Electronics Components (9th Cir. 2001) 274 F.3d 1276, 1285-1286 [prior positive evaluations combined with other evidence of pretext supported conclusion that employees performance was adequate despite later poor evaluations].)
Guckenheimers salary policies and Buenrostros salary history further belie her alleged incompetence. Guckenheimers "Managers Manual" allows pay increases only when an employees performance is at or above the expected level, and identifies raises of no more than five to seven percent as the norm, even for promotions. Thus, the raises of fifteen, four, and seven and one-half percent recommended in Buenrostros 1998, 1999, and 2000 evaluations, respectively, indicate that she was regarded as an outstanding employee.
Buenrostro also offered evidence that problems in her department were caused by factors beyond her control. Multiple declarations from other employees attributed much of the departments difficulties to understaffing, the time of year, and problems with outside contractors. Guckenheimer argues that this evidence shows, at most, that it might have been mistaken in thinking that Buenrostro was incompetent, and notes that any such mistake would not establish that its concerns about her performance were a pretext for discrimination. (See McCoy v. WGN Continental Broadcasting Co. (7th Cir. 1992) 957 F.2d 368, 373 ["the issue of pretext does not address the correctness or desirability of reasons offered for employment decisions"].) However, Buenrostros evidence does not go only to the prudence of the decision to terminate her. The declarations she provided state that those in charge at Guckenheimer knew her performance was not the problem with the department, a fact that distinguishes Guckenheimers authorities.
In the cases cited by Guckenheimer, the plaintiff proffered evidence to show that their performance was so strong that performance-based terminations were implausible. (McCoy v. WGN Continental Broadcasting Co., supra, 957 F.2d at p. 373; Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 358; Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 807.) In those cases, the evidence was not probative of pretext because it challenged the wisdom of the decisions to terminate, not whether the offered reasons were honestly believed. Here, in contrast, the declarations dispute whether Guckenheimer honestly believed Buenrostro performed poorly. For this reason, they may be used by Buenrostro to show pretext. (See McCoy v. WGN Continental Broadcasting Co., supra, at p. 373 [ultimate issue is whether employer "honestly believes in the reasons it offers"].)
Buenrostro also presented evidence of discriminatory animus on the part of Guckenheimer. Buenrostro and another employee, Marta Vignola, have declared that Buenrostros supervisor, Charles Knightstep, and Guckenheimers founder, Dr. Ritchie, made negative pregnancy-related comments to Buenrostro before her termination. Specifically, following Buenrostros return from her first pregnancy leave, Knightstep repeatedly commented to her and Vignola that Buenrostro was much easier to get along with when not pregnant. Knightstep also told Buenrostro that "while [she] was pregnant, the people at the front office were ready to show [her] the front door." After learning of Buenrostros second pregnancy, Dr. Ritchie remarked to her in a condescending tone "I hear youre adding to the family again," then "abruptly turned around and did not congratulate her."
"[I]n order for comments in the workplace to provide sufficient evidence of discrimination, they must be `1) related [to the protected class of persons of which the plaintiff is a member]; 2) proximate in time to the [complained-of adverse employment decision]; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue." (Rubinstein v. Administrators of the Tulane Educ. Fund (5th Cir. 2000) 218 F.3d 392, 400-401.) Guckenheimer argues that the comments at issue are neither proximate in time to the adverse employment action nor related to that action under the requirements set forth in Rubenstein.
However, Rubinsteins standards apply to comments cited as sufficient evidence of discrimination standing alone. (Rubinstein v. Administrators of the Tulane Educ. Fund, supra, 218 F.3d at p. 400.) Here the comments are offered in addition to significant other evidence. Consequently, "[e]ven if the remarks alone might have been insufficient to withstand summary judgment . . . [they] were certainly relevant and, along with other substantial evidence created a strong inference of intentional discrimination." (Mangold v. California Public Utilities Comn (9th Cir. 1995) 67 F.3d 1470, 1477; see also Danville v. Regional Lab Corp. (10th Cir. 2002) 292 F.3d 1246, 1251 [comment insufficient to take discrimination case to jury is still circumstantial evidence from which an inference of discrimination can be drawn].)
The foregoing evidence presented by Buenrostro on the issues of competence, pretext, and discriminatory animus, in combination, was such that a reasonable trier of fact could find that Guckenheimer engaged in pregnancy discrimination, and was thus sufficient to withstand summary judgment. (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1004.) Although Guckenheimers evidence would support a contrary finding, the issue is for a trier of fact. (Cf. Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1008.)
III. Conclusion
The judgment is reversed.
We concur: Reardon, J., and Sepulveda, J. --------------- Notes: In reviewing the summary judgment, we need only identify evidence sufficient to raise triable issues of fact, and need not discuss all the evidence—e.g., the timing of the firing shortly after Buenrostros disclosure that she was pregnant, the fact that a final paycheck was cut before Buenrostro was given an opportunity to respond to concerns expressed at the managers meeting—that may potentially be relevant to those issues.