Kelly v. Ports Management Corp.

 

 

 

Filed 1/28/14  Kelly v. Ports
Management Corp. CA2/4

 

 

 

>NOT TO BE PUBLISHED IN THE
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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

SECOND APPELLATE DISTRICT

 

DIVISION FOUR

 

 
>

HELEN KELLY,             Plaintiff and Appellant,             v.   PORTS AMERICA MANAGEMENT CORP. et al.,             Defendants and Respondents.

B242004         (href="http://www.mcmillanlaw.us/">Los Angeles County        Super. Ct. No. BC458286)

 

 

          APPEAL from a judgment of the href="http://www.fearnotlaw.com/">Superior Court of Los Angeles County, James
R. Dunn, Judge.  Reversed.

          Mancini & Associates, Marcus A.
Mancini, Timothy J. Gonzales; Benedon & Serlin, Wendy S. Albers and Gerald
M. Serlin for Plaintiff and Appellant.

          Epstein Becker & Green, Steven R.
Blackburn, Matthew A. Goodin and Deanna L. Ballesteros for Defendant and
Respondent Marine Terminals Corporation.

 

          Helen Kelly filed suit against Ports
America Management Corporation, Marine Terminals Corporation, James Hilbert,
Eric Stordahl and Nic Cosso (collectively, respondents), asserting various href="http://www.fearnotlaw.com/">employment discrimination related causes
of action.  The trial court granted
respondents’ summary judgment motion.  Kelly
appeals from the judgment entered in favor of Marine Terminals.href="#_ftn1" name="_ftnref1" title="">[1]  We conclude that Kelly raised a triable issue
whether the articulated reason for her adverse employment action was pretextual
and therefore reverse. 

 

FACTUAL AND
PROCEDURAL BACKGROUND

          The Pacific Maritime Association (PMA)
is a multi-employer association of shipping, stevedoring, and terminal
companies that operates out of West Coast ports.  Marine Terminals, a member of PMA, is a href="http://www.mcmillanlaw.us/">terminal operator and stevedoring company
that operates out of various ports, including the Los Angeles/Long Beach Port
(the Port).href="#_ftn2" name="_ftnref2"
title="">[2]
 The International Longshore and
Warehouse Union (ILWU) is the exclusive bargaining representative for longshore
workers, marine clerks, and foremen employed by PMA member companies at the
Port.  ILWU Local 63 is the local union
representative for marine clerks at the Port. 


          Marine clerks are employed as either
“out of hall” or “steady” workers.  Out
of hall marine clerks obtain work assignments through dispatch halls maintained
and operated jointly by PMA and ILWU Local 63. 
Occasionally, terminal operators advertise a steady work assignment for
which qualified out of hall marine clerks can apply.  href="http://www.sandiegohealthdirectory.com/">Steady workers work
exclusively for one terminal operator in a particular work assignment and
report to work at that location rather than at the dispatch hall. 

          Kelly became a marine clerk and joined
ILWU Local 63 in 1999.  She worked out of
the hall until 2003, when she became a steady clerk for Marine Terminals.  Kelly received a steady assignment as a day
shift yard planner at a 30 percent pay rate under the collective bargaining
agreement for marine clerks, which is the highest pay rate for clerks.  She worked in this assignment until April
2009. 

          Respondents Stordahl and Hilbert were
yard operations managers at the Seaside Transportation Services Terminal where Kelly
worked.  Stordahl and Hilbert supervised Kelly,
and they in turn were supervised by respondent Cosso, the day shift terminal
operations manager.  Kelly was considered
to be a good, competent worker.  

          On September
25, 2008, Kelly’s physician placed her on disability leave due to back and
shoulder injuries.  Kelly provided
written medical documentation
of her leave to her union and verbally informed her union chief supervisor,
Chuck Gilmore.  As a union member, she
was not required to notify Marine Terminals directly.  Kelly stated that it was Gilmore’s
responsibility to inform Marine Terminals that she was out on disability, but,
at the time of her deposition in this case, she did not know whether or not he
had done so. 

          Hilbert and Stordahl stated in their
depositions that they did not know the process Kelly needed to follow in
notifying anyone of her medical leave.  However,
David Wear, a member of Marine Terminals’ labor relations group, acknowledged
that Kelly was expected to contact her union officials to take a medical leave
and was not required to contact Marine Terminals prior to her leave.  He further acknowledged that there was no
written policy that an employee in Kelly’s position contact Marine Terminals
before taking a medical leave. 

          Kelly did not notify Stordahl,
Hilbert, or Cosso of her disability leave. 
Kelly’s duties during her leave were covered by Anthony Tomich, the
other marine clerk assigned to yard planning duties at the 30 percent rate of
pay, and by 25 percent pay rate steady workers who occasionally were assigned
to yard planning work at the 30 percent pay rate.  Cosso, Hilbert, and Stordahl kept Kelly’s
steady assignment open for her in the hope that she would return because she
was an experienced yard planner. 

          During Kelly’s absence, Hilbert asked
Tomich where Kelly was, and Tomich told him of a rumor that she was having
surgery.  Hilbert and Stordahl
periodically asked Tomich to call Kelly to ask when she would be returning to
work.  Tomich called Kelly approximately
once a month during her absence to ask when she would be returning to work.  Each time Kelly replied that she had taken
disability leave and planned to return as soon as possible. 

          According to Cosso, a day or two after
Kelly had not shown up for work, Tomich told him that Kelly was out for medical
reasons.  Cosso tried to contact Kelly
within the first month of her absence and left her a message.  Two to three weeks later, in November or
December 2008, Cosso called Kelly again and asked when she would be returning
to work.  She told him she would return
in approximately one month.  He asked her
to keep him informed about her return date. 
Cosso called Kelly again in late December 2008 and again in January 2009
to ask when she would return to work.  During
the December 2008 conversation, Kelly told Cosso she would return in a month or
two. 

          Hilbert also called Kelly during her
disability leave.  In January 2009, he
asked when she was returning, and she told him it would be in a few months. 

          In late March 2009, Kelly called
Gilmore to inform him that she would return to work on April 10 and that she
would call him on April 9 to remind him of her return.  Gilmore instructed Kelly to call Hilbert,
which she did on April 9. 

          When Kelly called Hilbert on April 9, 2009, Hilbert stated, “Where have you
been?  You just can’t come back here like
this.  We don’t know whether you were on
vacation or disability.  Which one is
it?  You know, there’s – where’s the
communication?”  Stordahl, who was also
on the phone, intervened, saying, “You can’t talk to her like that.  That’s not true.  Helen, we just don’t know how to handle the
situation.  We have to talk to someone in
human resources or something to figure out how to deal with this, and we’ll call
you back.”  Kelly asked them to call her
back. 

          Later that day, Stordahl called Kelly
to inform her that she was being let go and should check into the hall for a
new assignment.  Stordahl expressed
regret and stated that he would consider her for future hirings. 

          In his deposition and declaration, Cosso
stated that Kelly was terminated as part of a workforce reduction.  In January 2009, Cosso was instructed by
Marine Terminals’ upper management to reduce labor costs due to a downturn in
business in the last quarter of 2008.  Cosso
then released back to the dispatch hall all of the steady foremen and some
steady crane operators at the Seaside Transportation Services Terminal.  In addition, Cosso decided that the Seaside
Transportation Services Terminal needed only one day shift steady yard planner assignment
at the 30 percent rate of pay and two day shift steady vessel planner
assignments at the 30 percent rate of pay. 


          Cosso decided to release back to the
dispatch hall the most recently hired marine clerks.  Cosso therefore decided to eliminate Kelly’s
steady yard planner assignment and a steady vessel planner assignment occupied
by a clerk named Tunde George-Tay.  Marine
Terminals had never previously used seniority as the criterion for laying off marine
clerks during a workforce reduction. 

          On April
10, 2009, George-Tay was released to the dispatch hall.  George-Tay subsequently was rehired by Marine
Terminals at the 30 percent rate of pay. 


          After Kelly called Stordahl on April 9
to state that she intended to return to work, Stordahl asked Cosso what to do
about her request.  Cosso instructed Stordahl
to tell Kelly to report to the dispatch hall based on his prior decision to
eliminate her position.  

          Two other steady planner assignments
at the 30 percent rate of pay were eliminated in May 2009.  Tomich retired from the day shift steady yard
planner assignment effective May 1, 2009, and his position was not
filled.  Instead, qualified 25 percent
steady workers occasionally were assigned to yard planning work at a 30 percent
rate of pay.  In addition, Cosso decided
to eliminate a steady rail planner assignment at a 30 percent rate of pay. 

          In late 2009 or early 2010, Kelly
applied for a steady position with Marine Terminals at a 25 percent rate of
pay, but she was told that “they didn’t want [her].” 

          Kelly filed a complaint against Ports
America Management Corp., Marine Terminals, Hilbert, Stordahl, Cosso, and
various Does.  She asserted four causes
of action:  (1) disability discrimination
in violation of the California Fair Employment and Housing Act (FEHA) (Gov.
Code, § 12900, et seq.); (2) a violation of the California Family Rights
Act (CFRA) (Gov. Code, § 12945.2); (3) retaliation and wrongful
termination in violation of public policy; and (4) a violation of California
Labor Code section 226. 

          Respondents moved for summary judgment
and summary adjudication, arguing in part that Kelly was terminated because of
a workforce reduction, not for a discriminatory reason.  The court granted summary judgment in favor
of respondents on all causes of action.  The
court entered judgment in favor of respondents. 
Kelly filed a notice of appeal. 

 

>DISCUSSION

          Kelly contends that the trial court
erred in granting summary judgment in favor of Marine Terminals on her FEHA
disability discrimination claim, her CFRA disability discrimination claim, and
her claim for wrongful termination in violation of public policy.  We agree and therefore reverse.

          “On appeal after a motion for summary
judgment has been granted, we review the record de novo, considering all the
evidence set forth in the moving and opposition papers except that to which
objections have been made and sustained. 
[Citation.]”  (>Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334 (Guz).)  “Declarations of the moving party are
strictly construed, those of the opposing party are liberally construed, and
doubts as to whether a summary judgment should be granted must be resolved in
favor of the opposing party.”  (>Johnson v. United Cerebral Palsy/Spastic
Children’s Foundation (2009) 173 Cal.App.4th 740, 754 (Johnson).)  The moving party
bears “the burden of demonstrating as a matter of law, with respect to each of
the plaintiff’s causes of action, that one or more elements of the cause of
action cannot be established, or that there is a complete defense to the cause
of action.  [Citations.]  If a defendant’s presentation in its moving
papers will support a finding in its favor on one or more elements of the cause
of action or on a defense, the burden shifts to the plaintiff to present
evidence showing that contrary to the defendant’s presentation, a triable issue
of material fact actually exists as to those elements or the defense.”  (Id.
at p. 753.)

 

I.       >FEHA Disability Discrimination

          “FEHA
prohibits employment discrimination based on a physical disability.  (Gov. Code, § 12940, subd. (a).)  . . .  [¶]  In
the context of disability discrimination, the plaintiff initially has the
burden to establish a prima facie case of discrimination.  The plaintiff can meet this burden by
presenting evidence that demonstrates, even circumstantially or by inference,
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 because of the disability or perceived disability.  [Citation.] 
To establish a prima facie case, a 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.]  The prima facie burden is light; the evidence
necessary to sustain the burden is minimal. 
[Citation.]  . . .  [G]enerally an employee need only offer
sufficient circumstantial evidence to give rise to a reasonable >inference of discrimination.  [Citation.]” 
(Sandell v. Taylor-Listug, Inc.
(2010) 188 Cal.App.4th 297, 310 (Sandell).)  If the plaintiff establishes his prima facie
case, “a rebuttable presumption of discrimination arises and the burden shifts
to the employer to rebut the presumption with evidence that its action was
taken for a legitimate, nondiscriminatory reason.”  (Johnson,> supra, 173 Cal.App.4th at p. 755.)

          “When the defendant moving for summary
judgment produces substantial evidence of a legitimate, nondiscriminatory
reason for the adverse employment action, the burden shifts to the plaintiff to
prove intentional discrimination. 
[Citation.]  The plaintiff must ‘“‘offer
substantial evidence that the employer’s stated nondiscriminatory reason for
the adverse action was untrue or pretextual, or evidence the employer acted
with a discriminatory animus, or a combination of the two, such that a
reasonable trier of  fact could conclude
the employer engaged in intentional discrimination.’”  [Citation.]’  . . .

          “‘“[T]he plaintiff may establish
pretext ‘either directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.’”  [Citation.]  Circumstantial evidence of  â€œâ€˜pretense’ must be ‘specific’ and ‘substantial’
in order to create a triable issue with respect to whether the employer
intended to discriminate” on an improper basis.  [Citations.]  With direct evidence of pretext, “‘a triable
issue as to the actual motivation of the employer is created even if the
evidence is not substantial.’  [Citation.]  The plaintiff is required to produce ‘very
little’ direct evidence of the employer’s discriminatory intent to move past
summary judgment.”  [Citation.]’  [Citation.]  â€˜â€œDirect evidence is that which, ‘if believed
by the trier of fact, will prove the particular fact in question without
reliance upon inference or presumption.’  [Citations.]”’ 
[Citation.]”  (>Batarse v. Service Employees Internat. >Union, Local 1000 (2012) 209 Cal.App.4th
820, 834 (Batarse).)

          On appeal, Marine Terminals concedes
that Kelly had a disability, was on medical leave, and suffered an adverse
employment action.  However, Marine
Terminals contends that Kelly has failed to demonstrate either that its
proffered reason was pretextual, or that Marine Terminals acted with discriminatory
animus in terminating her.href="#_ftn3"
name="_ftnref3" title="">[3]  (Sandell,
supra, 188 Cal.App.4th at p. 314; >Batarse, supra, 209 Cal.App.4th at p. 834.) 


          Guz
explained that “[a]n employer’s freedom to consolidate or reduce its work
force, and to eliminate positions in the process, does not mean it may ‘use the
occasion as a convenient opportunity to get rid of its [protected]
workers.’  [Citations.]  Invocation of a right to downsize does not
resolve whether the employer had a discriminatory motive for cutting back its
work force, or engaged in intentional discrimination when deciding which
individual workers to retain and release. 
Where these are issues, the employer’s explanation must address
them.  [Citation.]”  (Guz,
supra, 24 Cal.4th at p. 358.)  Legitimate
reasons for a reduction in force “are reasons that are facially unrelated to prohibited bias, and which, if true, would
thus preclude a finding of discrimination.  [Citations.]” 
(Ibid.)

          Marine Terminals proffered evidence
that, in January 2009, Cosso was instructed by upper management to implement
cost reductions in response to a downturn in business.  Cosso therefore released all the steady
foremen and over ten steady crane operators back to their dispatch halls in
January 2009.  In April 2009, Cosso
eliminated George-Tay’s steady vessel planner assignment and Kelly’s steady
yard planner assignment, and in May 2009, two other steady planner assignments
were eliminated.  

          Marine Terminals’ proffered reason –
an instruction to downsize in response to a downturn in business – is facially
unrelated to prohibited bias.  (>Guz, supra,
24 Cal.4th at p. 358.)  The burden thus
shifted to Kelly to produce evidence that Marine Terminals’ reason was a mere
pretext for disability discrimination.  (>Id. at p. 360.)

          Kelly contends that the temporal
proximity of her termination to her disability leave, in conjunction with other
circumstantial evidence, is sufficient to withstand summary judgment.  We agree. 
Kelly presented the following evidence in opposition to the summary
judgment motion.

          First, Kelly cites the evidence that
her supervisors knew that she was out on disability leave and intended to
return to work as soon as she was able.  She
contends that Hilbert’s comments to her in her April 2009 phone call,
expressing “annoyance and feigned ignorance about [her] absence,” were
inconsistent with Cosso’s testimony that the decision to terminate her position
had already been made. 

          Second, Kelly cites a series of emails
between Cosso and labor relations management as evidence that Cosso’s decision
to terminate her was not based on a downturn in business.  In a March 25, 2009 email from Cosso to “Bob”
in SoCal Labor Relations Management, Cosso stated that he had previously spoken
with Bob regarding Kelly and further explained as follows:  “We were advised by one of her fellow yard
planners (a steady) in late October of ’08 that she would be taking vacation
time but gave no indication as to when she would be back.  Upon hearing about this and the fact that she
did not notify anyone in management I contacted her in November to inquire when
she would be back and she advised that she was recovering from a personal
surgical procedure and that she would be back after the first of the year (Jan.
’09).  [¶]  Since that time she has not shown back to
work nor made an attempt to contact us as to when she plans on coming
back.  What we have discovered is that
she has been in contact with one of our steady yard planners.  In that conversation she advised she would be
back to work this week but at this point she has not shown up nor has she made
any more attempts to contact us or him. 
[¶]  It is our intention to check
Ms. Kelly back into the hall and per your advice will await her to contact us
or show up at which time we will inform her that we are checking her back into
the hall.” 

          Cosso forwarded this email to Hilbert
on April 9, 2009, telling Hilbert, “We
should be able to simply check [Kelly] in. 
She went out on ‘elective surgery,’ not medical need surgery, she did
not notify anyone in management of her intention to take off time nor did she
make an attempt to contact us as to when she would be returning to work after
several months.  [¶]  All lead to the fact that we have cause on a
few different fronts to check her in.  I
would check in with LR and HR to ensure we are in the right but I cannot see
how we could not be to simply call her back and tell her she’s checked
in.” 

          Kelly also cites an April 2010 email
exchange among Cosso, Stordahl, and Hilbert,href="#_ftn4" name="_ftnref4" title="">>[4]
in which Hilbert sets forth “bullet points” summarizing the reasons for Kelly’s
termination:  “Summer ’08:  [Kelly] disappears from work without telling
management.  [¶]  About a week later, Anthony Tomich tells us
she called him to say she was taking a medical leave.  [¶]  We
followed up with a phone call to confirm, and she says she will be out for a
while.  We wish her well.  [¶]  We
learn from Anthony that she expects to be back in November ’08.  [¶] 
She misses that return date, but we keep in touch with her and wish her
well.  [¶]  Calls are made in January ’09 with no
response.  [¶]  In February/March, cost-saving measures are
implemented and she is cut, along with the other 30% planner at the bottom of
the list (Tunde George-Tay).  [¶]  The three of us conferenced with her to tell
her the news (she called us) and we offer to have her back as a 25/30% all
categories.  She does not accept.” 

          In the email, Hilbert further
emphasizes the following “key points”: 
“We never knew for sure what her condition was, but whatever it was is
irrelevant.  We don’t need to know.  [¶] 
She did not go about securing an official medical leave with PMA, nor
did she ever notify management that she was taking time off.  [¶] 
She never asked for a doctor’s slip or complained about back/neck
issues.  The only medical issue we ever
had with her was when she requested an ergonomic mouse pad. . . .  [¶]  We
did not create a hostile environment; in fact, we wished her speedy recovery
several times.  [Cosso] went through
proper channels (HR/LR) before cutting her.  [¶]  We
offered her an alternative to layoff (25/30% all categories).”

          In reply, Stordahl wrote that it took
“so long to check [Kelly] in” because he “considered her as a [>sic] injured reserve player, basically a
trained body that we could keep our options open when volume’s picked up.” 

          Finally, Kelly contends that she had
an impeccable work record, there had been no complaints about her work
performance, and Marine Terminals did not have a corporate policy of using
seniority as the criterion for determining which marine clerks to lay off
during a reduction in force.  She
contends that Cosso’s testimony that he terminated employees by reverse
seniority was a “convenient excuse” for him to terminate her. 

          We conclude that Kelly has raised a
triable issue regarding whether Marine Terminals’ proffered reason for her
termination was pretextual.  One way in
which pretext may be demonstrated is by showing that “‘the proffered reason did
not actually motivate the discharge.’”  (>Hanson v. Lucky Stores, Inc. (1999) 74
Cal.App.4th 215, 224.)  Construing the
evidence in Kelly’s favor, it casts doubt on the veracity of the explanation
that a reduction in force was the motivating factor in Kelly’s termination.  Instead, for several reasons, it raises the
inference that management was aware of Kelly’s leave and troubled by her
absence, not that Kelly’s position needed to be terminated because of a
workforce reduction.

          First, Kelly has submitted sufficient
evidence to raise a triable issue regarding whether Marine Terminals’
management knew she was out on disability leave, not on vacation.  Hilbert acknowledged that Tomich told him
that Kelly was out on medical leave, and that she intended to return to work
afterward.  Cosso also stated that, a day
or two after Kelly did not show up for work, Tomich told him the reasons for
Kelly’s medical leave. 

          Second, when Kelly called Hilbert and
Stordahl in April 2009 to tell them that she was returning to work, neither
Hilbert nor Stordahl raised the issue of a workforce reduction.  Instead, Hilbert stated that they did not
know whether Kelly was on vacation or disability, demanded, “where’s the
communication,” and told Kelly she “just can’t come back here like this.”  Stordahl intervened, telling Hilbert, “You
can’t talk to her like that.  That’s not
true.”  Stordahl told Kelly they did not
know now to handle the situation and would call her back after speaking to
someone in human resources.  Thus,
although the conversation indicates that they were troubled by her absence, there
was no suggestion from either Hilbert or Stordahl that her position needed to
be eliminated because of a workforce reduction.

          Nor did Cosso mention a reduction in
force as a reason for Kelly’s termination in his March
25, 2009 email to Bob in SoCal Labor Relations Management, which set forth “the
details” regarding their intention to check Kelly into the dispatch hall.  Instead, he wrote that they learned from a
different steady yard planner that Kelly was taking vacation time but she had
not indicated when she would return.  Cosso
also cited the fact that Kelly told him that she would return around January
2009, but she did not, and she did not contact anyone at Marine Terminals after
January 2009.  Cosso thus stated that,
pursuant to Bob’s advice, they would wait for her to “contact us or show up at
which time we will inform her that we are checking her back into the hall.”  This email indicates that Kelly’s absence,
not a reduction in force, led to the decision to release her.

          Similarly, Cosso’s April 9, 2009 email
to Hilbert cited the following reasons to check Kelly into the dispatch hall:  she “went out on ‘elective surgery,’ not
medical need surgery, she did not notify anyone in management of her intention
to take off time nor did she make an attempt to contact us as to when she would
be returning to work after several months.” 
Cosso concluded that they “have cause on a few different fronts to check
her in,” but a workforce reduction was not one of those named.  As in the March 25 email, there was no
indication that Cosso had decided to eliminate Kelly’s position as part of a
workforce reduction.  Instead, Cosso
cited only issues relating to Kelly’s absence as the reason for her
termination.

          In addition to the evidence that a
workforce reduction was not previously cited as a reason for her dismissal, Kelly
presented evidence that the management considered her to be a good employee and
hoped that she would return to work because of her experience as a yard planner.  She also presented evidence that Marine
Terminals did not previously use seniority as the basis for workforce
reductions. 

          Kelly thus has presented evidence that
Marine Terminals’ proffered reason for her termination was pretextual.  “[O]ur Supreme Court has held
that one cannot reasonably draw an inference of intentional discrimination
solely from evidence that an employer lied about its reasons for taking an
adverse employment action.”  (>Johnson, supra, 173 Cal.App.4th at p. 758.) 
Nonetheless, the evidence that the employer lied, in conjunction with
other circumstances, can constitute sufficient evidence to withstand an
employer’s summary judgment motion based on a proffered legitimate
nondiscriminatory reason for an adverse employment action.  (See ibid.)

          Johnson,
supra, is instructive.  There, the employer presented evidence that
it fired the plaintiff for falsifying time records, and the trial court granted
summary judgment in favor of the employer. 
On appeal, the court found that the plaintiff had presented sufficient
evidence to demonstrate a triable issue of fact with respect to her contention
that her pregnancy, rather than the defendant’s proffered explanation, was the
true reason for her firing.  (>Johnson, supra, 173 Cal.App.4th at p. 758.) 
The court reasoned that the plaintiff “was fired the very day she
returned from a short sick leave related to her pregnancy,” her supervisor did
not give her a specific reason for her firing, and the employer admitted
concerns about having pregnant employees. 
(Ibid.)  In addition, the court relied on evidence
that the employer did not ask questions about her timesheets at the time of her
firing and had never previously expressed concern about her timesheets.  (Id.
at pp. 758-759.)  Finally, the court
cited evidence that the plaintiff did not receive negative performance
evaluations prior to her firing and was generally found to be competent.  (Id.
at p. 759.) 

          Similar to Johnson, Kelly was terminated the very day she called to say she
was going to return from her disability leave, and she had never previously
received negative performance evaluations. 
Also similar to Johnson,
Marine Terminals did not raise the proffered, nondiscriminatory reason prior to
her termination, and Kelly presented evidence that her absence, not a workforce
reduction, was the reason for her termination. Thus, a reasonable jury could
infer that Kelly was discriminated against because of her disability leave.

          Stordahl, Hilbert, and Cosso
repeatedly expressed concern about what they perceived as Kelly’s lack of
communication regarding her leave, and it could be inferred that this concern
led to Kelly’s termination.  However,
Kelly presented evidence that they knew she was on leave and intended to
return.  Moreover, Wear acknowledged that
Kelly was not required to contact Marine Terminals prior to her leave.  Given that Kelly had no duty to communicate
with Marine Terminals, her alleged failure to do so does not dissipate the
inference that she was terminated because of her disability leave.

          Kelly’s evidence that Marine Terminals’
proffered reason for her termination is “not worthy of belief,” in conjunction
with the other circumstances she raises, constitutes sufficient evidence to
raise a triable issue of fact whether her disability leave was the true reason
for her termination.  (>Johnson, supra, 173 Cal.App.4th at p. 758.) 
Summary judgment should not have been granted in favor of Marine
Terminals on Kelly’s FEHA claim.

 

II.      CFRA
Disability Discrimination

          Kelly contends that the trial court
erred in summarily adjudicating her disability discrimination claim under CFRA.  We agree.

          “The CFRA, which is contained within
the FEHA (§ 12900 et seq.), ‘is intended to give employees an opportunity
to take leave from work for certain personal or family medical reasons without
jeopardizing job security.’ 
[Citation.]”  (>Faust v. California Portland Cement Co.
(2007) 150 Cal.App.4th 864, 878.)  “A
plaintiff can establish a prima facie case of retaliation in violation of the
CFRA by showing the following:  (1) the
defendant was a covered employer; (2) the plaintiff was eligible for CFRA
leave; (3) the plaintiff exercised his or her right to take a qualifying leave;
and (4) the plaintiff suffered an adverse employment action >because he or she exercised the right to
take CFRA leave.  [Citation.]”  (>Rogers> v. County> of Los
Angeles (2011) 198 Cal.App.4th 480, 491.)

          Marine Terminals contends that Kelly
cannot establish a prima facie case of retaliation because the evidence showed
that Cosso was not aware that she was on leave protected under the CFRA.  However, CFRA “requires only proof of a
causal connection between the employee’s protected status or conduct and the
adverse employment action taken by the employer.  [Citations.] 
The decision maker must have knowledge, but just knowledge of the
protected conduct – the absences. 
Knowledge that the conduct was protected is not required.”  (>Avila v.
Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1258.)  The rule advocated by Marine Terminals “would
encourage employers to have their managers remain ignorant of both the law and
the facts relating to CFRA leave.”  (>Id. at p. 1259.)

          Kelly relies on the evidence proffered
regarding her FEHA claim to argue that she has raised a triable issue whether
she was terminated because she exercised the right to take CFRA leave.  As discussed above, Kelly has presented
evidence that her disability leave, not Marine Terminals’ proffered reason of a
workforce reduction, was the reason for her termination.  We therefore reverse the trial court’s grant
of summary judgment in favor of Marine Terminals on Kelly’s CFRA leave.

 

III.     >Wrongful Termination in Violation of Public
Policy

          We also conclude that Kelly’s claim for
wrongful termination in violation of public policy should not have been
summarily adjudicated.  To establish a
claim for wrongful termination in violation of public policy, Kelly must show
that (1) she was employed by Marine Terminals; (2) her employment was
terminated; (3) the violation of public policy was a motivating reason for the
termination; and (4) the termination caused her damages.  (Haney
v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641.)  In light of our holding that Kelly presented
sufficient evidence to raise a triable issue whether she was terminated because
of her disability leave, we conclude that Kelly has raised a triable issue
whether a violation of public policy was a motivating reason for her
termination.

 

DISPOSITION

                    The judgment is reversed.  Appellant is entitled to costs on appeal.

                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

                                                                   WILLHITE,
J.

 

 

                   We concur:

 

 

 

                   EPSTEIN, P. J.

 

 

 

                   MANELLA, J.