Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Kenneth R. Freeman, Judge. Super. Ct. No. BC328514
Mancini & Associates, Marcus A. Mancini and Adam Reisner; Benedon & Serlin, Douglas G. Benedon and Gerald M. Serlin for Plaintiff and Appellant.
Ropers, Majeski, Kohn & Bentley, Shirley D. Deutsch; Michael E. Franklin for Defendants and Respondents.
COOPER, P. J.
Plaintiff Yolanda Chairez appeals from summary judgment in favor of defendants May Department Stores Company (May) and Eileen Lopez, in an action for damages for employment discrimination, retaliation, and wrongful termination in violation of public policy. Summary judgment was granted on the ground that plaintiff had not shown a triable issue that Lopez, the human resources manager who discharged her, had known of plaintiff’s disability. Plaintiff therefore could not establish causation of her discharge by discrimination or retaliation. We agree that Lopez’s unrebutted testimony precluded plaintiff from establishing the element of causation in each of her causes of action, and we therefore affirm the summary judgment.
Plaintiff does not contest the judgment with respect to Lopez. Respondents’ brief indicates that May’s name has been changed, to Federated Retail Holdings, Inc. For simplicity, we employ the original name.
FACTS
The first cause of action of plaintiff’s second amended complaint (SAC), for discrimination, alleged that she had been employed by May as a merchandise stocker. Beginning on February 15, 2004, plaintiff suffered disability from a back injury. Plaintiff informed her supervisor, Legg, and his assistant, Gloria, who informed the human resources department. “Plaintiff thereby made and/or articulated a Worker’s Compensation claim.” On the same day, human resources manager Lopez terminated and retaliated against plaintiff, “for the false stated reason that Plaintiff had bad credit.”
The SAC was filed after the notice of motion for summary judgment. Apart from adding an additional defendant – Grant Legg, who is not a party to this appeal – the SAC simply restated separately plaintiff’s three claims, two of which (discrimination and retaliation) had been combined in the first amended complaint.
These acts all violated the Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA). Plaintiff filed charges with the Department of Fair Employment and Housing, and received a right-to-sue notice. Plaintiff suffered economic and noneconomic damages, and she also prayed for punitive damages and statutory attorney fees.
The second cause of action, for retaliation, incorporated the first cause, and added that plaintiff had requested accommodation from Legg, in the form of a back brace, before Legg’s assistant informed human resources. Plaintiff alleged that Lopez and Legg then terminated her, in retaliation for sustaining an injury at work, having a disability, requesting an accommodation, and articulating a worker’s compensation claim.
Finally, plaintiff’s third cause, for wrongful termination in violation of public policy, incorporated the preceding allegations, and recited that public policy, as established by the FEHA and by Labor Code section 132 et seq., prohibited discrimination and retaliation based on disability or having articulated a worker’s compensation claim. Plaintiff’s termination violated these public policies.
May and Lopez moved for summary judgment. They contended principally that (1) plaintiff had not been qualified for her position, because of an unsatisfactory credit report; (2) she had not performed competently, because she failed to report to work on March 9-12, 2004, whereupon she was terminated; (3) May had had a legitimate, nondiscriminatory reason for the termination, namely this four-day absence from work; and (4) Lopez, who decided on plaintiff’s discharge, had not been aware of plaintiff’s claimed disability and request for accommodation, so the termination was not caused by discrimination or retaliation.
In a supporting declaration, Lopez stated that she was human resources manager at the City of Industry distribution center of Robinsons-May, a division of May. Plaintiff was employed as a seasonal merchandise handler there from February 5 to March 12, 2004. Plaintiff’s employment contract (attached) provided that if her “consumer reports” were not satisfactory, her employment would be terminated. Moreover, when she terminated plaintiff, Lopez did not know of plaintiff’s back injury or claim of disability, and the only reason for the termination was that plaintiff had “failed to show up for work on four consecutive days without calling in to report her absences.”
Paragraph 9 of Lopez’s declaration stated in full: “When I made the decision to terminate [plaintiff’s] employment, I was not aware that [plaintiff] claimed to be injured or disabled. Nor did I perceive her to be injured or disabled at the time I made the termination decision. [Plaintiff] did not report a back injury to me, nor did anyone else inform me that [plaintiff] had injured her back. I did not consider [plaintiff’s] claimed injury or disability in making the decision to terminate her employment. The sole reason for her termination was the fact that, based on Time and Attendance records maintained by [May], I determined that [plaintiff] failed to show up for work on four consecutive days without calling in to report her absences.”
Further testimony by Lopez appeared in deposition excerpts. She testified that plaintiff’s credit check was returned on February 3, 2004, two days before she started at May. It had been deemed unsatisfactory by the loss prevention department. Lopez would normally have spoken to appellant about it, but she could not specifically recall plaintiff in this context. Documentation indicated that plaintiff may have been given until March 9 to rectify the report. Lopez made the decision to terminate plaintiff, because of “job abandonment.” Lopez pointed out that an employee handbook stated that three consecutive days of missing work without notification would be considered abandonment of the job, resulting in termination. May’s position was that plaintiff had never brought an injury to its attention before she was terminated. The company does provide employees back braces. They are offered at orientation.
In other deposition testimony, Marie Mackay, May’s corporate deponent, stated that those working at the distribution center must have a sensitive job security clearance, which includes a credit check, because of the high volume of merchandise present, and the attendant risk of theft. Mackay testified that although plaintiff’s credit report could have resulted in her being discharged, the reason for plaintiff’s termination was job abandonment.
In her opposition papers, plaintiff contended, among other things, that (1) she did not abandon her employment but rather was terminated, on March 8, 2004 – shortly after requesting the accommodation of a back brace for her injury – ostensibly because of her credit report; (2) May and Lopez had acted with knowledge of plaintiff’s injury and request for accommodation, because they had actual or imputed knowledge of what plaintiff had told Legg and his assistant, immediately before being directed to human resources; (3) the causal link was also established prima facie by the closeness in time between plaintiff’s complaint and her discharge.
Plaintiff gave this account in her declaration: On or about February 3, 2004, she interviewed for her job, and authorized a credit check. The same day, Lopez informed plaintiff she had received the credit report, and reviewed it with plaintiff. Plaintiff was hired two days later. About a week before March 8, plaintiff sustained a back injury, which restricted her ability to bend, lift, stand for long periods, and to work. On or about March 8, plaintiff met with Legg, told him she had seriously injured her back, and asked if she could get a back brace, which she had learned May would provide. Legg told plaintiff he would tell “Gloria,” and she would get plaintiff a brace. Plaintiff later went to Gloria to get it, and she told plaintiff to go to human resources.
At that office, plaintiff told a woman representative that she was there for the back brace. The woman directed plaintiff to Lopez, who said “she was going to have to let me go because of my credit.” Asked why, Lopez said plaintiff needed to “fix” her credit before the next day she punched in, or she would be terminated. Plaintiff told Lopez she could not do so, and Lopez told her she was terminated.
Excerpts from Lopez’s deposition confirmed that plaintiff was hired on February 5, two days after her credit report came back as unsatisfactory. Lopez would have spoken to plaintiff in the interim, and would have given her about three weeks to rectify the report and to document that. A notation in plaintiff’s file stated she was to return with a letter on March 9.
In the ready-to wear department where plaintiff worked, Legg was her manager, and her supervisor, beneath Legg, was another man. Legg had two assistants named Gloria. May’s position was that plaintiff never notified it of any injury until sometime after March 2004: no records reflected any earlier notification. Lopez did not have a recollection of talking to plaintiff, and did not recall telling her she had until the next day to fix her credit or be terminated. She did not recall speaking with plaintiff about a back injury. Lopez stated that plaintiff had no other disciplinary or performance problems during her employment, besides her job abandonment.
May subsequently filed portions of plaintiff’s deposition, which had been taken after the summary judgment motion was filed. In her testimony, plaintiff stated she believed she first injured her back on February 15, 2004, even though that was a Sunday. The pain increased, so that on March 8 she told a co-worker that she couldn’t take it. The co-worker suggested she tell Legg, and she could receive a back brace. Thereafter, plaintiff “kind of yelled at” Legg that she wanted a brace, as her back was “killing” her. Legg replied, “Oh, well, let me talk to Gloria, and they’ll get you one.”
Plaintiff resumed working and waited. After about 20 minutes, she approached Gloria, whom she believed to be Legg’s secretary, and asked for a brace. Gloria told her to “‘hold on a minute.’ [¶] And then she came out of – I believe it was Mr. Legg’s office – and told me to go downstairs to human resources.” Plaintiff had not previously met Lopez, nor, to her recollection, had she been told that her credit report was a problem, or that she could be fired because of it. She proceeded down, and told a woman at human resources that she was there to pick up a back brace. The woman told her to talk to Lopez, and plaintiff entered her office and sat down.
Lopez told plaintiff that she had bad credit and could be terminated for it. Plaintiff asked why this was now an issue, after her having worked “for so long,” and Lopez said plaintiff had to fix her credit, before she punched in the next day. Plaintiff asked what would happen if she weren’t able to do this, and Lopez replied she would be terminated. Plaintiff then said she didn’t think she could fix her credit in one day, and Lopez replied that then plaintiff would be terminated. Plaintiff took this to be a termination. She did not appear for the following days because she did not believe she was expected to. She did not file a worker’s compensation claim until after her departure.
At the hearing of the summary judgment motion, the court carefully reviewed the alleged undisputed facts advanced by May, and partly contested by plaintiff. The court then ruled that plaintiff had not shown a triable dispute that, among other things, Lopez had been aware of plaintiff’s disability or injury claim when plaintiff was discharged. Lopez having been the decision-maker, plaintiff had not been discharged discriminatorily or retaliatorily. There was no evidence that Legg had so acted, or that he was part of the management chain regarding plaintiff’s termination. His knowledge could not simply be imputed to Lopez. On the other hand, there were triable issues whether plaintiff had been discharged because of job abandonment, and whether her credit record constituted grounds for termination.
Because plaintiff had failed to establish a triable issue that her discharge had been caused by discrimination, retaliation, or breach of public policy, the court granted summary judgment.
DISCUSSION
In reviewing de novo the grant of summary judgment (Merrill v. Navagar, Inc. (2001) 26 Cal.4th 465, 476; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler)), our inquiry is whether May showed without triable dispute that one or more elements of plaintiff’s claims could not be established, or whether on the other hand plaintiff presented sufficient evidence to establish a triable issue of material fact with respect to the challenged element. (Code Civ. Proc., § 437c, subds. (a), (o)(1), (o)(2), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) In determining these issues, we must view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing her evidence while strictly scrutinizing May’s. (Id. at p. 856; Saelzler, supra, 25 Cal.4th at p. 768.)
The trial court’s decision turned on plaintiff’s failure to establish a triable issue with respect to the element of a causal connection between her discharge and discriminatory motive or action by May. The court premised its determination on plaintiff’s failure to rebut or overcome Lopez’s testimony that when she terminated plaintiff, Lopez was not aware of plaintiff’s injury or disability. Plaintiff contends that notwithstanding Lopez’s testimony, there was sufficient evidence of two opposing factors to establish a triable issue of causation.
The first factor is the closeness in time between plaintiff’s reporting her injury (and requesting a back brace) and May’s termination of her. It is well established that such “temporal proximity” between the subject of discrimination or retaliation and the adverse employment action may by inference strongly support and even establish the element of discriminatory causation, or a prima facie case of it. (E.g., Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615; Bell v. Clackamas County (9th Cir. 2003) 341 F.3d 858, 865; Villiarimo v. Aloha Island Air, Inc. (9th Cir. 2002) 281 F.3d 1054, 1065.)
As the parties agree, federal employment discrimination decisions are relevant in applying FEHA. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.)
Here, the temporal distance between complaint and discharge was probably as short as any: according to plaintiff, there elapsed only about a half hour between the two events. After asking Legg for a brace and being told that Gloria would provide one, plaintiff waited about 20 minutes, then renewed her request directly with Gloria, who directed plaintiff to human resources, where Lopez spoke with and discharged her. The timing and juxtaposition of these events evokes a clear inference of causal connection.
May, however, cites authority that “temporal proximity alone is insufficient to create a genuine issue of fact as to causal connection where there is unrebutted evidence that the decision maker did not have knowledge that the employee engaged in protected conduct.” (Brungart v. BellSouth Telecommunications, Inc. (11th Cir. 2000) 231 F.3d 791, 799; see also California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1018 [causal link may be established by temporal proximity coupled with evidence the employer was aware].) It might be argued that this approach arbitrarily limits the effect of circumstantial evidence, which is usually critical in determining issues of motivation, purpose, or intent. Underlying plaintiff’s position is the premise that evidence of temporal closeness may serve to rebut direct evidence of lack of knowledge.
We believe, however, that Lopez’s denial of knowledge of plaintiff’s condition was not rebutted by the circumstance of closely timed termination. Unless refuted, that testimony, by the decision-maker for May, was dispositive of plaintiff’s claims that she had been discharged because of her condition. And to refute that testimony required evidence of its untruthfulness. The closeness in time of the discharge did not constitute such proof.
Plaintiff is not aided in this regard by the fact that she had no prior discipline during her five-week employment at May. That did not impeach the truthfulness of Lopez’s testimony. Nor is that testimony impaired by the trial court’s declaration that a triable issue existed about whether job abandonment was the reason for plaintiff’s discharge. The court made this finding based on plaintiff’s declaration, which described the credit problem as being the cause for her termination. The court’s observation did not relate to pretext for discrimination. And it could not have, concurrent with the determination that Lopez’s lack of discriminatory knowledge was undisputed.
It was Lopez herself who acknowledged plaintiff’s lack of discipline.
In sum, the closeness in time between plaintiff’s communication of her injury to Legg and her discharge by Lopez, although unusual and striking, did not create a disputed, triable issue with respect to discriminatory motivation, because it did not impair Lopez’s testimony she was not aware of plaintiff’s injury.
This brings us to plaintiff’s second argument why Lopez’s unrebutted ignorance of plaintiff’s condition did not warrant summary judgment based on lack of causation. Relying heavily, as she did below, on Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95 (Reeves), plaintiff asserts that even if Lopez’s testimony of unawareness is credited, plaintiff yet established a triable issue of discriminatory causation by virtue of circumstantial evidence that Legg, who was aware of plaintiff’s injury, participated in the termination, with discriminatory intent.
In Reeves, the plaintiff had complained to his store manager about sexual harassment of other employees. Instead of referring the complaints to human resources, as he should have, the manager conducted his own investigation, and found nothing. Thereafter, the plaintiff attempted to reenter the store after checking out at midnight, to use the bathroom because of urgency. When the night manager refused to admit him as a policy matter, despite his plea, plaintiff pushed open the door, which the night manager was holding. She complained to the store manager, who, without inquiring of the plaintiff, asked a security officer to investigate the “possibl[e] workplace violence.” (Reeves, supra, 121 Cal.App.4th at p. 103.) After doing so, the officer gave a negative oral report about the incident to the employer’s district manager, who terminated the plaintiff. The district manager did this without any knowledge of the plaintiff’s prior complaints about sexual harassment.
The plaintiff brought suit under FEHA, contending his termination had been in retaliation for the sexual harassment complaints. On appeal from summary judgment for the employer, the court held that the district manager’s ignorance of the plaintiff’s protected activity did not conclusively negate the element of causation, because others, including the store manager and the security officer, had also been involved in the termination. The court perceived that “ignorance of a worker’s protected activities or status does not afford a categorical defense unless it extends to all corporate actors who contributed materially to an adverse employment decision. [Citations.]” (Reeves, supra, 121 Cal.App.4th at p. 109.) Here, the district manager’s decision had been based on information provided by the security officer, who in turn had been empowered by the store manager. With respect to motive, the court also found triable issues, because evidence indicated that the store manager had an animus against the plaintiff from his complaints, and the security officer may have slanted his investigation in favor of the store manager’s view. The court opined, as had many federal courts, that employment decisions made by unknowledgeable parties who were influenced and utilized by biased supervisors were actionable. (Id. at pp. 114-116.)
The evidence in the present case, upon which plaintiff relies, does not bring it within the rationale of Reeves, supra, 121 Cal.App.4th 95, and the similar federal cases plaintiff cites. Plaintiff contends that the evidence established triable issues that Legg was involved in her termination, and that he so acted with a discriminatory motive based on her injury. But in terms of evidence, these claims can be based only on the facts that plaintiff complained to Legg and requested a back brace, nothing happened for 20 minutes, and when plaintiff reiterated her request to Legg’s assistant, she told plaintiff to go to human resources. These facts are too neutral to generate a triable inference that Legg instigated plaintiff’s firing on credit grounds, or that he harbored discriminatory intent. Unlike Reeves, there is neither palpable evidence that Legg contributed to Lopez’s decision, nor prior behavior by him suggestive of bias against plaintiff.
Plaintiff’s asserted inference that to maintain productivity, Legg decided to get rid of her rather than deal with her injury and need for accommodation is simply speculative. The trial court correctly ruled that Legg’s conduct did not establish a triable issue of causation, and that plaintiff’s causes of action could not be established.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUBIN, J. EGERTON, J.
Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.