Articles Posted in Workplace Harassment/Sex Discrimination

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER DISCRIMINATION CLAIMS (CLAIMS 1, 2, 7 & 8)

PLAINTIFF HAS DIRECT EVIDENCE OF DISCRIMINATION

As stated above, direct evidence consists of discriminatory statements or actions by the employer. Coghlan, 413 F.3d at 1095. Discriminatory or retaliatory remarks do not have to be made it the direct context of an employment decision to be direct evidence of discrimination. Chuang, 225 F.3d at 1115. Single statements are enough to provide probative evidence of discrimination. Sinai, 3 F.3d at 474. Here, the direct evidence is clear. Both Mr. Davis and Mr. Chan constantly told Plaintiff to quit or go on disability over her pregnancy/disability. Other comments that were made (i.e. don’t give a shit, pregnant women have hormones and attitudes and you should quit or go on disability, can’t ask for help to lift things, etc.) were made by Mr. Davis and Mr. Chan as well right before she was fired.

There is also direct evidence of hostility to pregnant employees with accommodation requests. When evidence establishes the employer’s animus towards the class that plaintiff belongs, this is considered direct evidence and defeats summary judgment. Id.; Cordova, 124 F.3d at 1149. Here, the evidence shows that Plaintiff was discipline for talking about her pregnancy, which was the first step in the discipline that led to her firing.

Also, there is direct evidence of bias by Mr. Davis in his deposition admission. Mr. Davis admitted he viewed Plaintiff disputing the counseling as because she was pregnant.

PLAINTIFF HAS ALSO MET THE PRIMA FACIE CASE OF DISCRIMINATION

Plaintiff can establish a prima facie case of discrimination. The specific elements of a prima facie case may vary depending on the particular facts. Guz v. Bechtel Nat’l. Inc., (2000) 24 Cal. 4th 317, 355. Generally, the plaintiff must provide evidence that: 1) she was a member of a protected class; 2) she was performing competently in the position she held; 3) she suffered an adverse employment action, such as termination, and 4) some other circumstance suggests discriminatory motive. Id. at 355. Here, all four elements are met:

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

iv. Failure to follow its own policies is evidence of pretext

Defendant’s failure to follow its own policy is evidence of pretext. See Hill v. Seaboard Coast Line Railroad Co., (11th Cir. 1989) 855 F.2d 804, 811; Christine v. Foremost Ins. Co., 785 (7th Cir. 1986) F.2d 584, 586-87. Here, Defendant totally failed to follow its own mandatory policies to investigate claims of harassment. There was never any investigation into Plaintiff’s claims of harassment. Mr. Davis never did anything to investigate Plaintiff’s claims of harassment after she claimed she was harassed. He never informed Team Member Services that Ms. Smith was claiming she was being harassed. He never obtained any written statements from Ms. Smith about the harassment. He never reported any results of any harassment investigation to Ms. Smith. No one from Defendant ever talked to Plaintiff about her complaints of harassment, got a written statement or told her of the results of any investigation into her complaints. All of which was required to do.

DEFENDANT’S LEGAL AUTHORITY AND FACTUAL CLAIMS ARE WRONG

Defendant mis-cites the legal authority on establishing a prima facie case. Defendant says timing is not enough to show a prima facie case. (pg. 12). First, Plaintiff has much more evidence than timing. However, the cited cases do not say that. Loggins v. Kaiser Permanente Intern., (2007) 151 Cal. App. 4th 1102, 1112-1113 says the opposite. Timing is enough to show a prima facie case, just by itself is not enough to show enough pretext. Arteaga v. Brink’s Inc., (2008) 163 Cal. App. 4th 327, 353 says the same thing. Timing is enough to show a prima facie case, but by itself is not enough pretext. Id.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

ii. The negative comments about Plaintiff’s pregnancy, accommodation requests and complaints of harassment show pretext:

Statements by a decision maker, which shed light on the employer’s true motivation, demonstrate evidence that the termination was pretextual. Reeves v. Sanderson Plumbing Products, Inc., (2000) 530 U.S. 133, 148. Pretext can be inferred when decision makers make statements that show discriminatory animus. Cook v. Arrowsmith Shelburne. Inc., (2nd Cir. 1995) 69 F.3d 1235, 1238. Here, both Mr. Davis and Mr. Chan constantly told Plaintiff to quit or go on disability in response to her pregnancy and accommodation requests. Second, the other comments that were made (i.e., We don’t give a shit about your claims of harassment; pregnant women have hormones and attitudes and you should quit or go on disability; can’t ask for help to lift things, etc…) were made by Mr. Davis and Mr. Chan as well right before she was fired. Third, when Plaintiff asked to go to the doctor she was suspended from going back to work.

iii. The termination reasons are false which establishes pretext as well
One of the ways to establish pretext is to show that the reasons given for the termination are not true. University of So. Calif. v. Sup. Ct., 222 Cal.App.3d at 1036. When a record contains evidence demonstrating not only that the legitimate, non-discriminatory reason for the adverse employment decision is false the grant of an employer’s motion for summary judgment is inappropriate. King v. Preferred Technical Group, (1999) 166 F.3d 887, 894. Here, the reason articulated is totally false.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

PLAINTIFF CAN ALSO ESTABLISH A PRIMA FACIE CASE OF RETALIATION

First, the prima facie case is designed to be quite easy to meet. Hodgens v. General Dynamics Corp., (1st Cir. 1998) 144 F3d 151, 161 (under the McDonnell Douglas framework the prima facie burden is quite easy to meet). It is designed to be a de minimis burden. Texas Dept. of Community Affairs v. Burdine, (1981) 450 U.S. 248, 253-254.

To establish a prima facie case for retaliation under FEHA, a plaintiff must establish that: (1) she was engaged in a protected activity; (2) was thereafter subjected to an adverse employment action; and (3) there was a causal link between the two. Addy v. Bliss & Glennon, (1996) 44 Cal.App.4th 205, 217. In response, the employer must set forth a legitimate, non-retaliatory explanation for its conduct. Flait v. North Am. Watch Corp. (1992) 3 Cal.App.4th 467, 476. Then, the employee presents evidence to show that the reason is pretextual. Id.

Here, the prima facie case is met: 1) Plaintiff was engaged in protected conduct: Employers cannot retaliate against an employee for requesting accommodation or for complaining of pregnancy harassment. Cal Govt Code § 12940(h) & (m). Plaintiff requested accommodation in the form of a weight lifting restriction and in the form of a finite amount of time off as a medical leave[FN1]. Also, Plaintiff complained of pregnancy harassment multiple times; 2) Plaintiff was terminated; 3) Plaintiff can establish a casual link as set forth below.

The plaintiff may establish a causal link between protected conduct and an adverse employment action by showing temporal proximity or that they occurred closely in time. King v. Preferred Technical Group, 166 F.3d at 893. Here, the last accommodation request came on June 21, 2006 and the last two complaints of harassment came on June 21 and 22, 2006. There were not plans to fire Plaintiff prior to her last complaint of harassment in the meeting with Mr. Chan on June 22, 2006. The decision to fire Plaintiff was made on June 23, 2006. It was the final decision and nothing would change it.

The causal link is also shown by the false reasons for the termination. Howard v. BP Oil Co., 32 F.3d at 526-527; University of So. Calif, 222 Cal.App.3d at 1036. Here, the reason articulated is totally false. Plaintiff was never insubordinate, abusive or rude. Plaintiff never yelled or cursed. To the contrary she was professional at all times. Also, Plaintiff did provide the necessary paperwork for her leave and also called about when she could return to work.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER RETALIATION CLAIMS (CLAIMS 3, 4, 11, 12)

PLAINTIFF HAS DIRECT EVIDENCE OF RETALIATION

As stated above, summary judgment is not appropriate when there is direct evidence of intentional retaliation. Godwin, 150 F.3d 1217, 1221. Direct evidence consists of discriminatory statements or actions by the employer. Coghlan v. American Seafoods Co., LLC, (9th Cir. 2005) 413 F.3d 1090, 1095. Discriminatory or retaliatory remarks do not have to be made it the direct context of an employment decision to be direct evidence of discrimination. Chuang v. University of California Davis. 225 F.3d at 1115. Single statements are enough to provide probative evidence of discrimination. Sinai v. New England Telephone& Telegraph Co., (1993) 3 F.3d 471, 474.

Here, the direct evidence is clear. First, both Mr. Davis and Mr. Chan constantly told Plaintiff to quit or go on disability over her pregnancy and accommodation requests. Second, the other comments that were made (i.e., We don’t give a shit about your claims of harassment; pregnant women have hormones and attitudes; and you should quit or go on disability; can’t ask for help to lift things, etc.) were made by Mr. Davis and Mr. Chan as well right before she was fired. Third, when Plaintiff asked to go to the doctor she was suspended to not going back to work.

There is also direct evidence of hostility to pregnant employees with accommodation requests. When evidence establishes the employer’s animus towards the class that plaintiff belongs, this is considered direct evidence and defeats summary judgment. Id.; see also Cordova v. State

Farm Ins., (9th Cir. 1997) 124 F.3d 1145, 1149. The evidence shows that Plaintiff was discipline for talking about her pregnancy, which was the first step in the discipline that led to her firing.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

Once a prima facie case of discrimination is established, the burden is on the employer to offer a legitimate nondiscriminatory reason for the adverse employment action. Id. To accomplish this, the [employer] must clearly set forth, through the introduction of admissible evidence, the reasons for the [employee’s] rejection. Sada v. Robert F. Kennedy Medical Center, 56 Cal.App.4th at 148; Caldwell v. Paramount Unified School District. 41 Cal.App.4th 189, 202-03 (1995).

If the employer meets its burden of proffering legitimate reasons for the adverse action, then the burden shifts back to the employee to show pretext. See University of So. Calif., 222 Cal.App.3d at 1036. A plaintiff can show pretext in two ways: (1) indirectly by showing that the employer’s proffered reason for termination is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer, or (3) a combination of both (1) and (2). Chuang, 225 F.3d at 1123; Hersant v. California Department of Social Services. 57 Cal.App.4th 997, 1004-05 (1997).

As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer’s motion for summary judgment. Chuang, 225 F.3d at 1123. The U.S. Supreme Court made clear that a plaintiff’s prima facie case, combined with sufficient evidence to reject the employer’s reason for the termination, is sufficient to sustain a finding of liability for discrimination. Reeves v. Sanderson Plumbing Products. Inc., (2000) 530 U.S. 133, 148.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

ARGUMENT
SUMMARY JUDGMENT STANDARDS IN WRONGFUL TERMINATION
A plaintiff in a wrongful termination case can overcome summary judgment by one of two ways: 1) offering direct evidence of discriminatory or retaliatory intent or 2) satisfying the elements of the burden shifting process outlined in McDonnell Douglas Corp. v. Green and subsequent cases. (1973)411 U.S. 792, 802-804

Direct evidence is only one of the ways that a plaintiff can successfully oppose a summary judgment motion. When an employee offers direct evidence of discrimination, summary judgment is not appropriate and the burden shifting analysis need not be conducted. Godwin v. Hunt Wesson, (9th Cir. 1998) 150 F.3d 1217, 1221. However, direct evidence of discrimination is not required. Id. The Supreme Court stated that after the prima facie case has been established, merely the rejection of the defendant’s proffered reason will permit the trier of fact to infer the ultimate fact of discrimination. Id. at 147 (citing St. Mary’s Honor Center v. Hicks, (1993)509 U.S. 502, 511.

In addition to the direct evidence route, the burden shifting analysis can be used. California courts analyzing claims of discrimination under the FEHA apply the same shifting burdens analysis used by federal courts under Title VII. The analysis requires: (1) the Plaintiff first establish a prima facie case of discrimination; (2) the defendant then must produce evidence demonstrating a legitimate, non-discriminatory reason for the termination; and (3) the plaintiff must present evidence creating a triable issue of fact that the employer’s stated reason was untrue or a pretext for a discriminatory animus. McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802-04 (1973); Guz v. Becthtel Nat’l Inc. 24 Cal.4th 317, 354-56 (2000)[FN4].

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

THE REASONS FOR HER TERMINATION ARE TOTALLY FABRICATED

Defendant’s reasons for termination are totally fabricated. Plaintiff never yelled at Mr. Chan in the meeting or at any other time. To the contrary, Plaintiff spoke in a normal voice and was not aggressive at all. It was Mr. Chan that was yelling. Also, Plaintiff never refused to change and never refused to do what Mr. Chan said. She always followed his directions. Plaintiff was not insubordination and she was not rude, or harassing, or discourteous with a customer on June 21, 2006 or at any other time to management, any customer or any employee. To the contrary, she always acted professionally towards management, employees and the customers and never violated and polices.

IN VIOALTION OF DEFENDANT”S OWN POLICIES, PLAINTIFF’S COMPLAINTS OF HARASSMENT WERE NEVER INVESTIGATED

Defendant has specific policies that require an impartial and full investigation of an employee’s complaints of harassment. Under Healthmart Foods policies, if a Store Leader gets a complaint where there is even an indication of unlawful harassment, it is mandatory that complaint be investigated and the investigation be documented. The specific investigation steps wuld be to: 1) speak with the person claiming harassment, 2) obtain written statements from the employee, 3) talk with the other parties involved and obtain written statements, 4) inform the employee of the results of the investigation and 5) review the results of the investigation with Team Member Services. Plaintiff made multiple complaints of pregnancy and accommodation harassment to Mr. Davis directly and to Mr. Chan.

Mr. Davis admits that Plaintiff complained about harassment. Mr. Davis admits that Plaintiff was complaining that the counseling she got was harassment. He even put in an email that she was complaining of harassment.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

THERE IS DIRECT EVIDENCE THAT THE TERMINATION WAS MOTIVATED BY PLAINTIFF’S PREGNANCY AND COMPLAINTS

There is ample direct evidence that Plaintiff was fired over her pregnancy/accommodation and complaints. First, both Mr. Davis and Mr. Chan constantly told Plaintiff to quit or go on disability over her pregnancy and accommodation requests. Second, the other comments that were made (i.e., don’t give a shit about your claims of harassment, pregnant women have hormones and attitudes and you should quit or go on disability, can’t ask for help to lift things, etc.) were made by Mr. Davis and Mr. Chan as well. Third, when Plaintiff asked to go to the doctor she was suspended to not going back to work.

Aside from all the comments and statements there is further direct evidence in the actions taken against her. First, Plaintiff was verbally disciplined for talking about her pregnancy. Healthmart Foods uses a progressive discipline scheme with the typical steps being: 1) verbal, 2) 1st written, 3) 2nd written, and 4) final. The verbal/action plan for telling people she was pregnant was the first step of the discipline. In the termination decision, Mr. Davis looked back to see if she had each step and the fact that she did factored into his decision to fire her. He very possibly would not have fired her had she not had all the steps of the discipline.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

Plaintiff is harassed by the other people as well. That same day, Plaintiff is called into the manager’s office seven times by Amy Jones. Each time it is to ask Plaintiff to change her shirt. Plaintiff’s shirt was appropriate when she arrived to work, but Ms. Jones insists she change. Every time Ms. Jones gives Plaintiff a shirt but calls her in a short time later to make her change again.

Finally, Plaintiff is again threatened with her job over her pregnancy and complaints of harassment. The assistant store leader, Paul Chan calls Plaintiff into his office. Also present is Ms. Jones and Mr. Hermisillo. Mr. Chan falsely claims that Plaintiff gave poor customer service. Plaintiff did not and tells him so. Instead, Plaintiff gave great customer service. Mr. Chan yells at Plaintiff. Plaintiff says she is being harassed over her pregnancy and is stressed out and feels backed into a comer. In response to her complaint of harassment, Mr, Chan tells Plaintiff that she is a bad person and don’t give him that shit about harassment. Mr. Chan yells “don’t give that fucking shit about harassment.”

Plaintiff starts to feel ill and starts to cramp and bleed over her pregnancy. Plaintiff tells Mr. Chan that she is not feeling good and cramping over her pregnancy and wants to see a doctor. In response, Mr. Chan tells Plaintiff that she should go on disability or quit. Plaintiff tells Mr. Chan that she has restrictions and he tells her to quit or go on disability. Plaintiff again asks to leave and go to the hospital and that Mr. Chan is stressing her out with the harassment. Mr. Chan responds do not give me that shit about harassment, go back to work. Mr. Chan tells Plaintiff to go back to work, this is just a verbal warning and not discipline. Plaintiff again says she cannot go back to work because she is cramping and bleeding and wants to go to the doctor. Then, Mr. Chan yells “you’re suspended until further notice.”

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