Herrera v. CU Cooperative Systems



















Filed 1/29/13 Herrera v. CU Cooperative Systems CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS





California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN THE COURT
OF APPEAL OF THE STATE OF CALIFORNIA>



FOURTH APPELLATE
DISTRICT



DIVISION TWO






>

ROXANNE HERRERA, Plaintiff and Appellant, v. CU COOPERATIVE SYSTEMS, INC., Defendant and Respondent.

E052869 (Super.Ct.No. CIVRS908019) O P I N I O N

APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County.
Barry L. Plotkin, Judge.
Affirmed.

Eisenberg
& Associates, Michael B. Eisenberg and Joseph S. Socher for Plaintiff and
Appellant.

Richardson Harman Ober,
Paul F. Schimley and Richard C. Moore for Defendant and Respondent.

I. INTRODUCTION

Plaintiff
and appellant, Roxanne Herrera, sued her former employer, defendant and
respondent, CU Cooperative Systems, Inc. (CO-OP), alleging three violations of
the Fair Employment and Housing Act
(FEHA) (Gov. Code, § 12940 et seq.)href="#_ftn1" name="_ftnref1" title="">^[1] based on her pregnancy. She alleged that CO-OP wrongfully terminated
her because she was pregnant (first cause of action), wrongfully denied her
pregnancy disability leave (PDL) by terminating her while she was on PDL
(second cause of action), and wrongfully failed to accommodate her
pregnancy-related medical condition, gestational diabetes, by refusing to allow
her to eat meals at her desk (third cause of action). The trial court entered judgment in favor of
CO-OP after granting its motion for summary
judgment. Herrera appeals, claiming
she presented sufficient evidence to raise triable issues of fact on each of
her three causes of action. We disagree
and affirm the judgment in favor of CO-OP.

II. FACTUAL AND PROCEDURAL BACKGROUNDhref="#_ftn2" name="_ftnref2" title="">^[2]

A. Overview

Herrera was a supervisor in the
fraud department of CO-OP. She began
working for CO-OP in 1996, and was promoted from project coordinator to fraud
supervisor in August 2007. In October
2008, the fraud department of CO-OP or “Falcon call center,” as it was known,
employed around 30 investigators and four supervisors, including Herrera. The investigators spent most of their time on
the telephone with ATM cardholders who had reported unauthorized withdrawals or
whose spending patterns had abruptly changed, suggesting unauthorized uses of
their ATM cards. The manager of the
fraud department, Bill Freer, was Herrera’s direct supervisor.

Herrera was terminated effective November 5, 2008, shortly
after she went on PDL effective October 21,
2008. On October 9, 2008, Herrera asked Freer for permission to eat meals
at her desk as an accommodation for her gestational diabetes, a pregnancy-related
medical condition. After she was
terminated, Herrera claimed that Freer never gave her permission to eat meals
at her desk.

In support of its motion, CO-OP
presented evidence that Herrera was terminated for a nondiscriminatory reason
unrelated to her pregnancy—for counseling a subordinate employee, Mauricio
Mendez, to lie about the reason he needed to leave work early on June 14,
2008. Through CO-OP’s instant messaging
system, Mendez told Herrera he wanted go to Raging Waters, but Herrera counseled
Mendez to give her a better reason to leave 60 to 90 minutes early. Mendez then made up a family emergency, and
Herrera recorded that reason in the supervisor’s log as the reason she allowed
Mendez to leave early. Mendez and
Herrera admitted the incident and both were terminated.

Based on the evidence that
Herrera was terminated for a reason unrelated to her pregnancy, the trial court
agreed that CO-OP was entitled to summary adjudication on Herrera’s first and
second causes of action. The court also
ruled that Herrera’s third cause of action for failure to accommodate her
gestational diabetes had no merit because the evidence indisputably showed that
Freer never told Herrera she could not eat meals at her desk or leave the work
area to eat, and because supervisors had discretion to leave their desks to eat
even when no other supervisors were present.

B. Additional Factual Backgroundhref="#_ftn3" name="_ftnref3" title="">^[3]

1. Herrera Tells Freer She is
Pregnant

On July 15, 2008, Herrera told
Freer she was pregnant. According to
Herrera, Freer’s reaction to the news was “strained and negative.” Initially, Freer was silent, then asked
Herrera: “Oh, is that what you really
want?” Herrera responded that she was
very happy and excited to be pregnant, and it was a blessing for her. Freer then asked Herrera whether she would be
returning to work right after the baby was born. Herrera assured Freer that she planned to
return to work just as she had done following her two prior pregnancies while
working at CO-OP.

Based on Freer’s questions and
the tone of his voice, Herrera believed Freer was “very disappointed,” “upset,”
and “angry” that she was pregnant. She
claims Freer “made [her] feel like” it was not the right time for her to be
pregnant because they had just started a new department and “now [she was]
pregnant.” She felt she had to explain
to Freer that she had had two prior pregnancies while working at CO-OP “to
prove to him . . . [she] was coming back like [she] did before” and
would not “just leave [him] hanging . . . .” Herrera claims Freer “just smiled and told
[her] thank you for informing me [about your pregnancy,] but [he] never did
congratulate [her].”

According to Herrera, Freer
treated her differently after she told him she was pregnant. Previously, he treated her as his “right
hand” and consulted with her on many business issues, but stopped consulting
with her as often after she told him she was pregnant. In addition, Herrera claimed Freer excluded
her from a training program for a new product after he learned she was
pregnant.

2. Herrera Asks Freer for
Permission to Eat Meals at Her Desk

On October 9, 2008, Herrera told
Freer she had developed gestational diabetes as a result of her pregnancy, and
needed to follow a medically-prescribed meal plan. The meal plan required Herrera to eat
frequent meals and snacks during the course of the day in order to prevent
blood sugar imbalances and additional medical complications. Herrera showed Freer a copy of her meal plan
and asked him for permission to eat at her desk.

Herrera claims her requested
accommodation conflicted with two CO-OP rules: (1) employees were not allowed
to eat at their desks; and (2) supervisors were not allowed to leave the work
area or “floor” unless another supervisor was present. Because Herrera was the only supervisor “on
the floor” or in the work area during most of her shift, she claims she had to
eat at her desk in order to follow her prescribed meal plan.

According to Herrera, when she
asked Freer for permission to eat meals at her desk, he told her: “Well, I can’t allow you to do it, because if
I allow you, then I have to allow the rest of the staff, and that’s not going
to happen.” Freer told Herrera she could
have snacks at her desk, “like an apple,” but could not eat meals at her desk. When Herrera told Freer that having snacks
would not allow her to follow her meal plan, Freer said, “[w]ell, you know, at
this point we will see what we can work with,” but Herrera claims Freer never
gave her “a yes or a no” answer to whether she could eat meals at her
desk. Between October 9 and 21, 2008,
when Herrera left on PDL, she “tried the best that [she] could” to follow her
meal plan by eating snacks at her desk.

At some point, Herrera told Mary
Monise, the manager of the human resources department, that she had gestational
diabetes. Monise told Herrera to “take
care of [her]self,” but Herrera did not
seek permission from Monise or from anyone other than Freer to eat meals at her
desk, or to leave the work area to eat when no other supervisor was
present. Herrera testified that taking
the matter up with human resources “would be like going above [Freer].”

According to Freer, CO-OP had no
policy requiring supervisors “to always be present” in the work area during
working hours, and he denied ever telling Herrera she could not leave her desk
when she needed to, “whether for meals, bathroom breaks or any other
reason.” Freer testified that
supervisors were allowed to eat at their desk at their discretion, but he also
said: “We tried to have a supervisor on
the floor as much as possible.”

Freer claimed that on “every one
of the nine days in question” between October 9, when Herrera asked to eat
meals at her desk, and October 21, the last day Herrera worked before going on
PDL, there were “at least two and often three supervisors scheduled to work,”
suggesting that Herrera would have been free to leave her desk to eat as
necessary. Still, Freer did not say that
another supervisor was always present during the hours Herrera worked, and he
did not deny that he never gave her permission to eat meals at her desk after
she asked him for permission.

3. Freer Reviews Herrera’s
“Chat Logs” and Discovers the Mendez Incident

All fraud department employees
had access to company-owned computers with instant messaging capability in
order to communicate among themselves and with their supervisors without
interrupting a telephone call with an ATM cardholder. All employees signed a consent form
acknowledging that CO-OP could monitor all communications on its computers and
that any abuse of the system was grounds for disciplinary action, up to and
including termination. The IT department
of CO-OP was able to track the volume of instant messages sent and received by
each employee and to print, verbatim, time-stamped records of all messages sent
and received by a given employee. These
records were known as “chat logs.”

On September 3, 2008, Freer asked
the IT department to provide him with the volume statistics and chat logs for
June and July 2008, but he did not receive the information from the IT
department until September 30, 2008.
Because the volume of instant messages sent and received by Herrera
seemed “excessively high,” Freer decided to review Herrera’s chat logs.

Many of the messages on Herrera’s
June and July 2008 chat logs were in Spanish and unintelligible to Freer. Freer was concerned about this because in his
view there was no reason for in-house communications to be in Spanish. He also noticed that many of the messages
appeared to contain “inappropriate ‘nick-names’” and other language that,
according to Freer, “had no business in the workplace.”

Freer noticed that on June 13 and
14, 2008, Herrera counseled a subordinate fraud department employee, Mendez,
“to make up an excuse to get out of work early so he could go to an amusement
park.” Freer was not previously aware of
this, and brought the matter of Herrera’s chat logs to the attention of the
human resources department, “for . . . further review and
translation.”

Thereafter, the human resources
department showed Freer a partial copy of Herrera’s chat logs for June 2008,
with handwritten translations. According
to Freer, the translated chat logs showed that Herrera was abusing the instant
messaging system, and Herrera and Mendez had been using the system for
“protracted personal exchanges.” Freer
was also given a copy of an e-mail that Herrera sent to Mendez on October 2,
2008, cautioning him not to send Herrera any more instant messages because Freer
was reviewing them.

The chat logs showed that on June
13, 2008, Mendez sent an instant message to Herrera asking for permission to
leave early on June 14 so he could go to Raging Waters with his family. In reply, Herrera told Mendez to “send the supervisors
an email reminding us that tomorrow is your dentists appt at (whatever time)
and you would need to leave by (whatever time).” On June 14, Mendez sent another instant
message to Herrera saying he “could have an emergency [at 12:00 noon].”

Herrera then sent a message to
Mendez, telling him “you send me an IM, . . . you tell me
something, then I will give you permission to leave.” Mendez responded by saying he “just got a
call from home something happened is it ok if I leave early[?]” Herrera allowed Mendez to leave early, and
wrote in the supervisor’s log that:
“[Mendez] received a call around noon today from his home and he
informed me that he needed to leave because he had an emergency. He logged off. I told him to drive safely and call us if he
needed anything.”

Freer sent a copy of Herrera’s
June 14, 2008, notation in the supervisor’s log to Monise. He also brought the matter to the attention
of Connie Trudgeon, CO-OP’s vice-president of operations and Freer’s direct
supervisor. Trudgeon had recommended
Herrera for the position as a fraud supervisor.


4. Herrera Goes on PDL and is
Later Terminated

On October 21, 2008, Herrera
requested and was granted a leave of absence from work for pregnancy
disability, and went on pregnancy leave effective October 21. Mendez was terminated effective October 23,
2008. On November 4, 2008, while Herrera
was still on PDL, Monise contacted Herrera by telephone and terminated her
effective November 5, 2008. Freer and
Trudgeon recommended Herrera’s termination to the company’s vice-president of
human resources, Jill DeNiro.

Herrera admitted what she did was
wrong but claimed she had authority to let a subordinate leave early. Trudgeon agreed that supervisors had
authority to allow subordinates to leave early, but according to Freer, “no other
supervisor in the Fraud Department ha[d] ever been caught counseling a
subordinate to lie under similar circumstances.”

According to Trudgeon, Herrera’s
counseling of Mendez to lie and her recording of the lie in the supervisor’s
log was the only reason she was
terminated. Trudgeon denied that Herrera
was terminated based on “inappropriate content” in her instant messages, for
her “excessive use” of the instant messaging system, or for giving
“preferential treatment to an employee[.]”


Prior to her termination
effective November 5, 2008, Herrera had never received any “write-ups,” “formal
discipline,” or “a negative performance evaluation,” but had received numerous
raises and promotions. CO-OP did not
have a written policy of subjecting employees to “progressive discipline,” such
as giving warnings, reprimands, or suspensions prior to termination. During her employment, Herrera signed a form
acknowledging that she was an “at will” employee and could be terminated at any
time, for any or no reason.

According to Trudgeon, no
consideration was given to disciplining Herrera rather than terminating her due
to “the severity” of her act of falsifying company records, the supervisor’s
log. Still, Herrera was the only
supervisor whom Freer knew of who was terminated without receiving any prior
discipline, such as a “write-up” or a warning.

C. The Legal Bases of Herrera’s Claims

In June 2009, Herrera filed a
complaint against CO-OP alleging three causes of action for violations of the
FEHA. (§ 12940 et seq.) In her first cause of action for “pregnancy
discrimination,” Herrera alleges she was wrongfully terminated based on her
pregnancy. (§ 12940, subd. (a).) The FEHA provides that it is an unlawful
employment practice for an employer of five or more persons to discharge an
employee on the basis of “sex” (§ 12940, subd. (a)), and defines “sex” as
including “pregnancy, childbirth, or medical conditions related to pregnancy or
childbirth” (§ 12926, subd. (p)).

In her second cause of action for
“failure to provide pregnancy leave,” Herrera claims she was wrongfully denied
PDL because she was wrongfully terminated while on PDL. Under section 12945 of the FEHA, known as the
PDL law, it is an unlawful employment practice, unless based on a bona fide
occupational qualification, “[f]or an employer to refuse to allow a female
employee disabled by pregnancy, childbirth, or related medical conditions to
take a leave for a reasonable period of time not to exceed four months [16 work
weeks] and thereafter return to work . . . .”
(§ 12945, subd. (a); Cal. Code Regs., tit. 2, § 7291.7, subd.
(a); 1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2012)
§ 5.36, p. 266.) Herrera concedes
that her second cause of action fails if she was not wrongfully terminated
based on her pregnancy.

In her third cause of action,
Herrera claims that CO-OP, through Freer, unlawfully refused to reasonably
accommodate her pregnancy-related medical condition, gestational diabetes, by
refusing to allow her to eat meals at her desk between October 9, 2008, the day
she requested the accommodation, and October 21, 2008, the day she left work on
PDL. Under the PDL law (§ 12945),
it is an unlawful employment practice “[f]or an employer to refuse to provide
reasonable accommodation for an employee for conditions related to pregnancy,
childbirth, or related medical conditions, if she so requests, with the advice
of her health care provider” (§ 12945, subd. (b)).

D. The Trial Court’s Ruling on the Motion

The trial court granted CO-OP’s
motion for summary judgment, finding no triable issues of fact on any of
Herrera’s three causes of action. On the
first and second causes of action, the court concluded there was “no credible
evidence” that CO-OP’s claimed reason for terminating Herrera—counseling Mendez
to lie and recording the lie in the supervisor’s log—was a pretext for
terminating her based on her pregnancy.
The court pointed out that Herrera admitted her misconduct, and that
“[i]ntegrity, honesty and reliability” were critical characteristics that
employers look for in employees.

The court also found
“speculat[ive]” Herrera’s claim that Freer was “upset” about her pregnancy when
she told him she was pregnant, simply because he did not congratulate her. The court concluded that Herrera’s only
evidence of pregnancy discrimination, or that she was wrongfully terminated
based on her pregnancy, was that Freer did not “exhibit what, in her view, was
an appropriate response to her announcement that she was pregnant,” and this
was “hardly . . . sufficient to create a triable issue of fact.”

The court also found
“insubstantial” Herrera’s evidentiary showing in support of her third cause of
action that CO-OP failed to reasonably accommodate her gestational diabetes by
refusing to let her eat meals at her desk.
The court pointed out that there were only nine working days between
October 8, 2008, the date Herrera told Freer she was diabetic and needed to eat
at her desk, and October 21, when her PDL began, and that Herrera’s “own documents”
showed she went on leave because she was hyperglycemic, not hypoglycemic.

The court also pointed out that
Herrera conceded that Freer “never said” she could not leave her desk to eat,
and was relying on prior instances when Freer said supervisors could not leave
the work area unless another supervisor was present. The court pointed out that Freer “>never . . . gave her a yes or no”
as to whether she could eat at her desk, but told her, “[w]e will see what we
can work with.” (Italics added.)

The court also emphasized that
Freer denied telling Herrera she could not eat at her desk, and that Freer and
others testified Herrera “wasn’t prohibited from leaving her desk to have her
meals in the break room or some other location.” The court said that none of Herrera’s
witnesses testified that Freer would not allow Herrera to leave the work area
to eat. In sum, the court found “very
weak” any inference that “the conduct of defendant’s agents constituted a
failure to provide pregnancy accommodation.”


III. DISCUSSION

Herrera claims CO-OP’s motion for
summary judgment was erroneously granted because she presented sufficient
evidence to raise triable issues of fact on each of her three causes of
action. She claims she made a sufficient
evidentiary showing to allow a reasonable trier of fact to conclude that that
she was unlawfully terminated based on her pregnancy and, accordingly,
unlawfully denied up to four months’ PDL because she was terminated while on
PDL (first and second causes of action).
She also claims she presented sufficient evidence to allow a reasonable
trier of fact to conclude that CO-OP failed to reasonably accommodate her
gestational diabetes, because Freer did not give her permission to eat meals at
her desk, and she did not have discretion to leave her desk to eat when no
other supervisor was present (third cause of action).

We conclude that the evidence is
too weak to allow a reasonable trier of fact to conclude that she was
terminated because she was pregnant, and not because she showed she was an
untrustworthy supervisor by counseling Mendez to lie and recorded the lie in
her supervisor’s log. The evidence also
fails to support a reasonable inference that CO-OP refused to reasonably
accommodate Herrera’s gestational diabetes.


A. Standard of Review on Summary Judgment

Summary judgment is
properly granted when all of the papers submitted on the motion show there are
no triable issues of material fact and the moving party is entitled to judgment
as a matter of law. (Code Civ. Proc., § 437c,
subd. (c).) A defendant is entitled to
summary judgment if it establishes a complete defense to each of the
plaintiff’s causes of action or shows that one or more elements of each cause
of action cannot be established. (>Id., subd. (o); Aguilar, supra, 25
Cal.4th at p. 849.) A moving defendant
bears an initial burden of making a prima facie showing that there are no
triable issues of material fact. If the
defendant meets this burden, the burden shifts to the plaintiff to demonstrate
the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); >Aguilar, supra, at pp. 850-851.)

On appeal from the grant of
a motion for summary judgment, we
independently determine whether there are any triable issues of material fact
and the moving party is entitled to judgment as a matter of law. (Merrill
v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We consider all of the evidence set forth in
the moving and opposition papers, together with inferences reasonably deducible
from the evidence, and we view the evidence in the light most favorable to the
party opposing the motion. (>Aguilar, supra, 25 Cal.4th at p. 843; >Ambriz v. Kelegian (2007) 146
Cal.App.4th 1519, 1530.) name=clsccl6>

B. >Intentional Employment Discrimination Claims


Disparate
treatment is the theory underlying Herrera’s first and second causes of
action. Disparate treatment is href="http://www.mcmillanlaw.com/">intentional discrimination against one
or more persons on prohibited grounds; i.e., treating similarly situated
individuals differently in their employment because of a protected
characteristic. (International Bro. of Teamsters v. United States (1977) 431 U.S.
324, 335-336, fn. 15; Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 355 (Guz).) Intentional
discrimination may be proved by direct evidence, such as epithets and
derogatory remarks, or it may be proved by circumstantial evidence supporting a
reasonable inference of intentional discrimination. (Godwin
v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1221.)

“Due to ‘the similarity between
state and federal employment discrimination laws, California
courts look to pertinent federal precedent when applying our own statutes. [Citation.]
In particular, California has adopted the three-stage burden-shifting
test established by the United States Supreme Court for trying claims of
[intentional] discrimination . . . .’” (Wills
v. Superior Court (2011) 195 Cal.App.4th 143, 159, citing Guz, supra, 24
Cal.4th at p. 354.)

“This so-called McDonnell
Douglas^[href="#_ftn4" name="_ftnref4" title="">^[4]] test reflects the principle that
direct evidence of intentional discrimination is rare, and that such claims
must usually be proved circumstantially.
Thus, by successive steps of increasingly narrow focus, the test allows
discrimination to be inferred from facts that create a reasonable likelihood of
bias and are not satisfactorily explained.”
(Guz, supra, 24 Cal.4th at p.
354.)

In the first stage, the
plaintiff bears the burden of establishing a prima facie case of
discrimination. (Guz, supra, 24
Cal.4th at p. 354.) The prima facie
evidentiary burden is “‘not onerous’” (id.
at p. 355); the evidence necessary to sustain the burden is minimal (Sandell
v. Taylor-Listug, Inc., supra, 188 Cal.App.4th at p. 310). Generally, a plaintiff can make a prima facie
showing of discrimination based on disability by producing evidence that he or
she “(1) suffered from a disability, or was regarded as suffering from a
disability; (2) could perform the essential duties of the job with or without
reasonable accommodations, and (3) was subjected to an adverse employment
action [including termination] because of the disability or perceived
disability.” (Sandell v. Taylor-Listug, Inc., supra,
at p. 310; see Guz, supra, at
p. 355.) At the very least, the
plaintiff must show “‘“actions taken by the employer from which one can infer,
if such actions remain unexplained, that it is more likely than not that such
actions were ‘based on a [prohibited] discriminatory criterion . . . .’ [Citation.]”
[Citation.]’ [Citations.]” (Guz,
supra, at p. 355.)

If the plaintiff makes this
prima facie evidentiary showing, a presumption of discrimination arises. (Guz,
supra, 24 Cal.4th at p. 355.) The
burden then shifts to the employer to rebut the presumption by producing
evidence sufficient to raise a triable issue of fact, and justify a judgment in
favor of the employer, that the employer terminated the employee, or undertook
the adverse employment action, for a “legitimate, nondiscriminatory
reason.” (Id. at pp. 355-356.)
Importantly, if the employer sustains this burden, the presumption of
discrimination disappears. (>Id. at p. 356.) Finally, if the employer meets its burden,
the burden shifts back to the plaintiff to establish that the defendant
intentionally discriminated against him or her.
(Wills v. Superior Court, supra,
195 Cal.App.4th at pp. 159-160.)

“A defendant employer’s
motion for summary judgment slightly modifies the order of [the >McDonnell Douglas] showings. If, as here, the motion for summary judgment
relies in whole or in part on a showing of nondiscriminatory reasons for the
discharge, the employer satisfies its burden as moving party if it presents
evidence of such nondiscriminatory reasons that would permit a trier of fact to
find, more likely than not, that they were the basis for the termination. [Citations.]
To defeat the motion, the employee then must adduce or point to evidence
raising a triable issue, that would permit a trier of fact to find by a
preponderance that intentional discrimination occurred.” (Kelly
v. Stamps.Com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098, citing Aguilar>, supra, 25 Cal.4th at pp. 850-851 &
Guz, supra, 24 Cal.4th at p.
357.)

More specifically, when, as
here, the employer makes an unrebutted evidentiary showing that it terminated
the employee for a permissible, nondiscriminatory reason, the employee must
adduce evidence sufficient to allow a reasonable trier of fact to conclude
that, more likely than not, the employer’s proffered reason for terminating the
employee was false, and the true reason for the termination was impermissible
discrimination. (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133,
148-149; see Aguilar, supra, 25
Cal.4th at pp. 850-851; Guz, supra,
24 Cal.4th at pp. 361-362.) Thus, if the
employee fails to produce “‘“substantial responsive evidence . . . of
the untruth”’” of the employer’s proffered reason for the termination, the
discrimination claim may be summarily resolved in favor of the employer. (Slatkin
v. University of Redlands (2001) 88 Cal.App.4th 1147, 1156 [Fourth Dist.,
Div. Two].)

C. >Summary Judgment Was Properly Granted in
favor of CO-OP

The
trial court correctly determined that there were no triable issues of material
fact and that CO-OP was entitled to summary judgment on Herrera’s complaint as
a matter of law. We examine each cause
of action in turn.

1. The
Discrimination Claims (First and Second Causes of Action)

As discussed, CO-OP
presented evidence that it terminated Herrera not because she was pregnant, as
she alleged in her complaint, but because she counseled Mendez to give her a
false reason for his need to leave work early on June 14, 2008, then recorded
the lie in her supervisor’s log as the reason she allowed him to leave
early. Importantly, Herrera admitted her
conduct and does not dispute that the incident occurred. Thus, CO-OP had a legitimate,
nondiscriminatory reason for terminating Herrera. The only question is whether Herrera adduced
sufficient evidence to allow a reasonable trier of fact to conclude that, more
likely than not, CO-OP’s proffered reason was false and a pretext for
terminating Herrera based on her pregnancy.


As indicated, Herrera
retained the overall burden of persuasion on the issue of actual
discrimination, and in response to the motion was required to present evidence
sufficient to allow a reasonable trier of fact to conclude that, more likely
than not, CO-OP’s nondiscriminatory reason for terminating her “was false and a
pretext” for terminating her based on her pregnancy. (Kelly
v. Stamps.Com Inc., supra, 135 Cal.App.4th at pp. 1097-1098; >Aguilar, supra, 25 Cal.4th at pp.
850-851.) Herrera’s evidence had to have
“sufficient probative force” to allow a finding of intentional discrimination,
in the face of CO-OP’s “strong and unrebutted showing” of a nondiscriminatory
reason for terminating her. (>Guz, supra, 24 Cal.4th at pp.
353-354.) The stronger the employer’s
showing of a legitimate, nondiscriminatory reason for termination, the more
compelling must be the plaintiff’s evidence from which to infer an improper
motive. (Id. at p. 362.)

Our assessment of Herrera’s
evidentiary showing “‘requires a disciplined analysis of what inferences may be
drawn from the admissible evidence. . . .’ [Citations.]”
(Faust v. California Portland
Cement Co. (2007) 150 Cal.App.4th 864, 877.) A motion for summary judgment may not be
granted “‘based on inferences . . . , if contradicted by other
inferences or evidence, which raise a triable issue as to any material
fact.’ (Code Civ. Proc., § 437c,
subd. (c).)” (Aguilar, supra, 25 Cal.4th at p. 856.) The inferences must be liberally in favor of
Herrera as the nonmoving party. (>Ibid.)
Nonetheless, Herrera’s evidence was too weak to raise a rational inference
that she was terminated based on her pregnancy, in the face of CO-OP’s strong
and unrebutted evidentiary showing she was terminated because she counseled
Mendez to lie, recorded the lie in her supervisor’s log, and in so doing
demonstrated she was not a trustworthy supervisor.

As the trial court pointed out,
Freer’s failure to “congratulate” Herrera when she told him she was pregnant
does not support a reasonable inference that Freer was “upset,” “angry,” or
even disappointed to learn that Herrera was pregnant, as Herrera claimed. In addition, Herrera had two prior
pregnancies while employed at CO-OP; took pregnancy leave both times; and
returned to raises and promotions.

Herrera also claims that Freer
did not consult with her as often after she told him she was pregnant, and
excluded her from a training program for a new product. Yet in her deposition, Herrera could not
recall a single instance of being excluded from a meeting or training session. And in a journal she kept during 2008, Herrera
referred to an out-of-state training seminar that she alone, of all the
supervisors in the fraud department, attended with Freer and other members of
middle management—after she told
Freer she was pregnant.

Herrera also argues that the
timing of Freer’s review of her June and July 2008 chat logs, in which he
discovered the June 14, 2008, incident concerning Mendez, suggests that Freer
was looking for a reason to terminate her because she was pregnant. The record does not support this claim. On September 3, 2008, after he learned
Herrera was pregnant, Freer requested the volume statistics and chat logs for
the months of June and July 2008, and subsequently reviewed Herrera’s chat logs
for June 2008. But June 2008—the month >before Herrera told him she was
pregnant—was the first month that Freer reviewed his employees’ uses of the
instant messaging system. That month,
Freer reviewed the volume statistics for May 2008 and “[m]aybe half a dozen”
employee chat logs for May 2008. Freer
waited until September 3, 2008, to request volume statistics and chat logs for
June and July 2008, because “[i]t was a challenge” for the IT department to
deliver the chat logs to him on a regular basis. Freer’s review of other employee chat logs
before he knew Herrera was pregnant undermines any rational inference that he
reviewed Herrera’s chat logs in September 2008 because he was looking for a
reason to terminate her.

To be sure, Herrera worked for
CO-OP for more than 12 years, received numerous raises and promotions, and was
never disciplined before she was terminated effective November 5, 2008, shortly
after she went on PDL. Herrera was also
the first fraud department supervisor to be fired without prior discipline. But CO-OP did not have a written policy of
progressively disciplining employees by issuing warnings, reprimands, or
write-ups before termination, and Trudgeon testified that the severity of
Herrera’s act of falsifying the supervisor’s log warranted her termination >without prior or progressive
disciplinary action. In the face of this
evidence Herrera produced no evidence that any other supervisor was subjected
to progressive discipline, rather than summarily terminated, for committing an
act comparable to hers. In addition, the
record shows that Mendez was summarily terminated for the same incident,
without prior discipline or a warning.

In sum, because Herrera failed to
produce “‘“substantial responsive evidence . . . of the
untruth”’” of CO-OP’s proffered, legitimate reason for terminating her, her
first cause of action for wrongful termination based on pregnancy was properly
summarily resolved in favor of CO-OP. (>Slatkin v. University of Redlands, supra,
88 Cal.App.4th at p. 1156.) For the same
reason, CO-OP established that Herrera’s second cause of action for failure to
provide her with a reasonable period of PDL had no merit. (§ 12945, subd. (a).) Herrera alleged she was wrongfully denied PDL
only because she was terminated based on her pregnancy, and concedes that if
her first cause of action for intentional discrimination fails her second cause
of action must also fail.

2. Failure
to Accommodate Gestational Diabetes (Third Cause of Action)

Herrera’s third cause of action
for “failure to provide pregnancy accommodation” is based on her claim that
CO-OP failed to accommodate her gestational diabetes by refusing to allow her
to eat meals at her desk, and by refusing to allow her to leave her desk to eat
meals. (§ 12945, subd. (b).) Herrera maintains that she was refused this
accommodation during the nine working-day period between October 8, 2008, when
she requested the accommodation, and October 21, 2008, when she went on
PDL.

The trial court found
“insubstantial” and “very weak” Herrera’s evidentiary showing that she was not
allowed to eat meals at her desk or leave her desk to eat meals. We agree.
In support of its motion, CO-OP presented evidence that Herrera was not
refused the accommodation, and in response Herrera failed to present evidence
sufficient to allow a reasonable trier of fact to conclude that, more likely
than not, she was refused the accommodation.
(See Aguilar, supra, 25
Cal.4th at pp. 850-851.)

Herrera admits that Freer never
gave her a “yes or no” answer when she asked him whether she could eat meals at
her desk. Thus it is undisputed that
Freer never told Herrera she could not
eat meals at her desk as necessary to follow her medically-prescribed meal
plan. At most, the evidence shows that
Freer may have discouraged Herrera from eating meals or anything more than
snacks at her desk. But as the trial
court put it, Herrera’s evidentiary showing that Freer refused to allow her to
eat when and as necessary to follow her meal plan was insubstantial.

According to Freer, CO-OP had no
policy requiring supervisors “to always be present” in the work area during
working hours, and he denied ever telling Herrera that she could not leave her
desk when she needed to, “whether for meals, bathroom breaks or any other
reason.” Freer also testified that
supervisors were allowed to eat at their desk at their discretion, but he also
said: “We tried to have a supervisor on
the floor as much as possible.”

In any event, at some point
Herrera told Mary Monise, the manager of the human resources department, that
she had gestational diabetes, and Monise told her to “take care of
[her]self.” In the face of Monise’s
undisputed admonition, Herrera did not present sufficient evidence to allow a
reasonable trier of fact to conclude that, more likely than not, she was not
allowed to eat meals at work when, where, and as necessary to follow her
medically-prescribed meal plan.

>

IV. DISPOSITION

The
judgment is affirmed. The parties shall
bear their respective costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS



KING

J.



We concur:



HOLLENHORST

Acting
P. J.



MILLER

J.