This case was last updated from Los Angeles County Superior Courts on 05/29/2018 at 15:16:19 (UTC).

Thu Nguyet Thi Nicki Tran Vs Golden State Fc Llc Et Al

Case Summary

On 03/28/2018 a Labor - Other Labor case was filed by Thu Nguyet Thi Nicki Tran against Golden State Fc Llc in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9931

  • Filing Date:

    03/28/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Petitioner and Plaintiff

Tran Thu Nguyet"nicki

Defendants and Respondents

Kozinn Adam

Golden State Fc Llc

Does 1 To 20

Sandhu Kuldip

 

Court Documents

NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

5/24/2018: NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

PROOF OF SERVICE OF SUMMONS

5/24/2018: PROOF OF SERVICE OF SUMMONS

Minute Order

7/19/2018: Minute Order

Minute Order

8/22/2018: Minute Order

Proof of Service (not Summons and Complaint)

10/18/2018: Proof of Service (not Summons and Complaint)

Amendment to Complaint (Fictitious/Incorrect Name)

1/14/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Declaration

1/22/2019: Declaration

Memorandum of Points & Authorities

1/22/2019: Memorandum of Points & Authorities

Proof of Service by Mail

1/29/2019: Proof of Service by Mail

Notice

1/29/2019: Notice

Notice of Lodging

1/29/2019: Notice of Lodging

Declaration

1/31/2019: Declaration

Memorandum of Points & Authorities

1/31/2019: Memorandum of Points & Authorities

Memorandum of Points & Authorities

4/18/2019: Memorandum of Points & Authorities

Motion for Summary Judgment

4/18/2019: Motion for Summary Judgment

Proof of Service (not Summons and Complaint)

4/22/2019: Proof of Service (not Summons and Complaint)

SUMMONS

3/28/2018: SUMMONS

COMPLAINT FOR DAMAGES 1. GENDER, SEX, DISABILITY, AND MEDICAL CONDITION HARASSMENT AND HOSTILE WORK ENVIRONMENT, CAL. GOV CODE 12940(J) ;ETC

3/28/2018: COMPLAINT FOR DAMAGES 1. GENDER, SEX, DISABILITY, AND MEDICAL CONDITION HARASSMENT AND HOSTILE WORK ENVIRONMENT, CAL. GOV CODE 12940(J) ;ETC

45 More Documents Available

 

Docket Entries

  • 02/24/2020
  • Hearingat 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 02/07/2020
  • Hearingat 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 11/05/2019
  • Hearingat 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 08/13/2019
  • Docketat 09:00 AM in Department 34; Final Status Conference - Not Held - Continued - Stipulation

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  • 07/02/2019
  • Docketat 08:30 AM in Department 34; Hearing on Motion for Summary Judgment - Not Held - Continued - Stipulation

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  • 05/24/2019
  • DocketJOINT STIPULATION TO CONTINUE MOTION FOR SUMMARY JUDGMENT HEARING, TRIAL AND RELATED PRE-TRIAL DEADLINES; [PROPOSED] ORDER; Filed by Golden State FC, LLC (Defendant); Adam Kozinn (Defendant); Kuldip Sandhu (Defendant) et al.

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  • 04/30/2019
  • DocketNotice ( of Unavailability of Counsel); Filed by Golden State FC, LLC (Defendant); Adam Kozinn (Defendant); Kuldip Sandhu (Defendant) et al.

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  • 04/29/2019
  • Docketat 08:35 AM in Department 34; Jury Trial - Not Held - Continued - Stipulation

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  • 04/22/2019
  • DocketProof of Service (not Summons and Complaint); Filed by Golden State FC, LLC (Defendant)

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  • 04/22/2019
  • DocketProof of Service (not Summons and Complaint); Filed by Golden State FC, LLC (Defendant)

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67 More Docket Entries
  • 05/24/2018
  • DocketNOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

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  • 05/24/2018
  • DocketPROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 05/24/2018
  • DocketProof-Service/Summons

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  • 05/24/2018
  • DocketNOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

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  • 05/24/2018
  • DocketProof-Service/Summons

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  • 04/13/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/13/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 03/28/2018
  • DocketCOMPLAINT FOR DAMAGES 1. GENDER, SEX, DISABILITY, AND MEDICAL CONDITION HARASSMENT AND HOSTILE WORK ENVIRONMENT, CAL. GOV CODE 12940(J) ;ETC

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  • 03/28/2018
  • DocketComplaint; Filed by Thu Nguyet Thi "Nicki" Tran (Plaintiff)

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  • 03/28/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC699931    Hearing Date: February 20, 2020    Dept: 34

SUBJECT: Motion to Increase the Estimated Length of Trial

Moving Party: Plaintiff Thu Nguyet Thi “Nicki” Tran

Resp. Party: Defendants Golden State FC, LLC, Kuldip Sandhu, Adam Kozinn, Amazon.Com, Inc., Amazon Corporate LLC, Amazon.Com Services, Inc. and Amazon.Com.KYDC LLC

As the Court stated to the parties at the Informal Discovery Conference on February 13, 2020, this motion is DENIED without prejudice. Details regarding the length of the trial are better discussed at the Final Status Conference.

Case Number: BC699931    Hearing Date: November 22, 2019    Dept: 34

SUBJECT: Motion for Summary Judgment, or in the alternative Summary Adjudication

Moving Party: Defendants Golden State FC, LLC, Kuldip Sandhu, Adam Kozinn

Resp. Party: Plaintiff Thu Nguyet Thi “Nicki” Tran

Defendants’ motion for summary judgment is DENIED.

Defendants’ motion for summary adjudication of issues 1-12 is DENIED.

Plaintiff’s request for judicial notice is DENIED as superfluous.

Plaintiff’s evidentiary objections Nos. 2, 15 and 17 are SUSTAINED. Plaintiff’s remaining objections are OVERRULED.

Defendants’ evidentiary objection No. 11 is SUSTAINED. Defendants’ remaining objections are OVERRULED.

BACKGROUND:

Plaintiff Thu Nguyet Thi “Nicki” Tran commenced this action on March 28. 2018, when she filed a complaint against Defendants Golden State FC, LLC, Kuldip Sandhu, an individual, Adam Kozinn, an individual, and Does 1 through 20 for allegations of gender and sex discrimination and harassment on the basis of pregnancy, as well as interference and retaliation for requesting maternity leave and medical leave under the California Family Rights Act.

On January 14, 2019, Plaintiff filed an amendment to the complaint, substituting DOE 1 with Amazon.Com, Inc, DOE 2 with Amazon Corporate, and DOE 3 with Amazon.Com Services, Inc.

On April 2, 2019, Plaintiff filed an amendment to the complaint, substituting DOE 4 with Amazon.com.kydc LLC.

Plaintiff alleges that she began her employment with Defendants as Senior Defendants as a Senior Human Resources Assistant. (Complaint at ¶ 10.) On or around April 2016, Plaintiff was promoted to Human Resources Business Partner. (Id. at ¶ 11.) On or around December 2016, Tran transferred to the Amazon Fresh, LAX6 facility and defendant Adam Kozinn became Plaintiff’s direct supervisor. (Id. at ¶ 12.) Plaintiff alleges that after she announced that she was pregnant, she took several phone calls at home due to her severe morning sickness and occasionally took time off for her doctor appointments related to her pregnancy. (Id. at ¶¶15-17.) Plaintiff alleges that Defendants claimed that Plaintiff was not available at work and after an investigation, Defendants told Plaintiff she would either need to accept a severance agreement or be subjected to a misconduct investigation, thus effectively terminating her employment. (Id. at ¶¶21-22, 25-27.)

On October 30, 2019, the Court denied Plaintiff’s motion to compel production of documents.

Before the Court is Defendants Golden State FC, LLC, Kuldip Sandhu, and Adam Kozinn’s (“Defendants”) motion for summary judgment, or in the alternative, summary adjudication, filed on January 22, 2019.

ANALYSIS:

A. Procedural Issues

1. Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of Plaintiff’s complaint. (RJN, p. 2:3-5.)

The Court DENIES Plaintiff’s request for judicial notice as superfluous. (Cal. Rules of Court, rule 3.110(d).) Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

2. Evidentiary Objections

Plaintiff submits 17 evidentiary objections to Defendants’ supporting materials for their motion for summary judgment or adjudication. Plaintiff’s Objections Nos. 2, 15 and 17 are SUSTAINED. Plaintiff’s remaining objections are OVERRULED.

Defendants submit 35 evidentiary objections to Plaintiff’s supporting materials for her opposition to the motion for summary judgment or adjudication. Defendants’ objection No. 11 is SUSTAINED. Defendants’ remaining objections are OVERRULED.

B. Relevant Law

1. Motions for Summary Judgment or Adjudication

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy its initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).)

More specifically, “[o]n a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf, supra,128 Cal.App.4th at p. 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).) 

2. Motions for Summary Judgment or Adjudication in Relation to Adverse Employment Action

When deciding issues of adverse employment actions, such as retaliation, discrimination, and wrongful termination, the court applies the McDonnell Douglas shifting burdens test. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203; Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1108–09.) Under this test, “if the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing.” (Caldwell, supra at p. 203.) “Thus, the burdens of proof for purposes of a defendant's motion for summary judgment are precisely the same as those mandated by McDonnell Douglas.” (Id.) Therefore, the initial burden rests with the Defendant.

“Once the employer makes a sufficient showing of a legitimate reason for discharge, i.e., that it had a lawful, nondiscriminatory reason for the termination then the discharged employee seeking to avert summary judgment must demonstrate either (by additional facts or legal argument) that the defendant's showing was in fact insufficient or (by competent evidentiary materials) that there was a triable issue of fact material to the defendant's showing. With respect to the latter choice, the employee must produce substantial responsive evidence that the employer's showing was untrue or pretextual. For this purpose, speculation cannot be regarded as substantial responsive evidence.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225.)

“[T]he great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.) “It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436.)

C. Discussion

Defendants move for summary judgment on each of Plaintiff’s claims, or in the alternative summary adjudication of the following issues:

· Issue 1: Plaintiff’s First Cause of Action against Golden State should be dismissed because Plaintiff cannot establish that the actions upon which the cause is based were severe or pervasive, or were based upon her gender, sex, disability, or medical condition;

· Issue 2: Plaintiff’s First Cause of Action against Sandhu, should be dismissed because Plaintiff cannot establish that the actions upon which the cause is based were severe or pervasive, or were based upon her gender, sex, disability, or medical condition;

· Issue 3: Plaintiff’s First Cause of Action against Kozinn, should be dismissed because Plaintiff cannot establish that the actions upon which the cause is based were severe or pervasive, or were based upon her gender, sex, disability, or medical condition;

· Issue 4: Plaintiff’s Second Cause of Action against Golden State should be dismissed because Plaintiff cannot establish that Golden State’s stated legitimate, nondiscriminatory reasons for its actions regarding Plaintiff were pretextual for discrimination based upon gender, sex, disability, or medical condition;

· Issue 5: Plaintiff’s Third Cause of Action against Golden State should be dismissed because Plaintiff cannot establish that Golden State failed to take all reasonable steps to prevent discrimination, harassment, or retaliation against Plaintiff;

· Issue 6: Plaintiff’s Fourth Cause of Action against Golden State should be dismissed because Plaintiff cannot establish that Golden State failed to engage in the interactive process regarding Plaintiff’s known restrictions;

· Issue 7: Plaintiff’s Fifth Cause of Action against Golden State should be dismissed because Plaintiff cannot establish that Golden State failed to reasonably accommodate Plaintiff’s known restrictions;

· Issue 8: Plaintiff’s Sixth and Seventh Causes of Action against Golden State should be dismissed because Plaintiff cannot establish Golden State retaliated against Plaintiff for engaging in legally protected activity;

· Issue 9: Plaintiff’s Eighth Cause of Action against all Defendants should be dismissed because Plaintiff cannot establish that Plaintiff’s termination was substantially motivated by her exercise of a right to family care leave;

· Issue 10: Plaintiff’s Eighth Cause of Action against Sandhu and Kozinn should be dismissed for the additional reason that Sandhu and Kozinn cannot be individually liable under the California Family Rights Act;

· Issue 11: Plaintiff’s Ninth Cause of Action against Golden State should be dismissed because Plaintiff cannot establish that Golden State violated the California Pregnancy Disability Leave Law as alleged in that Cause; and

· Issue 12: Plaintiff’s Tenth Cause of Action should be dismissed because Plaintiff cannot establish that she was terminated in violation of a fundamental, substantial and well-established public policy. (Notice of Motion, pp. 1:4-3:3.)

1. First Cause of Action: Harassment (Issues 1, 2, 3)

Defendants argue that “Tran’s hostile work environment fails because: 1) Tran cannot show how the alleged behavior was based on hostility toward her pregnancy, and 2) in an[y] event, the alleged behavior is neither severe nor pervasive.” (Defendants’ MPA, p. 11:9-11.) Defendants argue that the actions Tran listed in her deposition regarding the ways that Defendants Sandhu and Kozinn had mistreated her relating to her pregnancy were either unrelated to the pregnancy or justified and were neither severe nor pervasive. (Id. at p. 11:12-20.) Specifically, Defendants argue that (1) Sandhu’s questions about Tran’s attendance were business justified; (2) Sandhu’s concerns for responsiveness were unrelated to Plaintiff’s pregnancy; and (3) Kozinn’s alleged actions were also legitimate business discussions. (Id. at pp. 11:21-13:23.)

In opposition, Plaintiff argues that her harassment and hostile work environment evidence defeats summary adjudication of issues 1-3 because there is evidence that (1) Defendant Sandhu’s conduct is harassing based on Defendant Sandhu’s hostile comments, tone, and questions regarding her pregnancy; and (2) there is no legitimate business justification for Defendant Kozinn’s conduct against Tran, as Defendant Kozinn questioned Plaintiff about her absences, criticized her performance, denied her requests for a promotion, questioned her about the length of her maternity leave, and ultimately terminated her employment, having knowledge that Plaintiff was struggling with her pregnancy. (Opp., pp. 8:1-9:4.)

It is an unlawful employment practice for an employer, because of physical disability, mental disability, medical condition, sex, gender, or certain other qualities of an individual, to harass an employee. (Gov. Code, §12940, subd. (j)(1).) An employer is liable for the harassing conduct of its employees when it knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (Gov. Code, § 12940, subd. (j)(3).)

To establish a prima facie case of disability harassment, Plaintiff must show that (1) she is a member of a protected class, (2) she was subject to unwelcome harassment, (3) the harassment was based on her disability, (4) the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment. (See Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 608 [setting forth elements of harassment claim].)

In order to establish a claim for harassment based on sex/gender, Plaintiff must show “(1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; and (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.” (Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 202-203 [citations omitted].)

A “hostile work environment” exists “where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) “There is no recovery for harassment that is occasional, isolated, sporadic, or trivial.” (Ibid.) “In determining what constitutes “sufficiently pervasive” harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Brennan v. Townsend & O'Leary Ents., Inc. (2011) 199 Cal.App.4th 1336, 1347 [emphasis in original].) Under some circumstances, a single incident may support a hostile environment claim depending upon its severity. (See Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1419 [single act of groping plaintiff by itself constituted actionable conduct]; Hughes, supra, 46 Cal.4th at p. 1049 [isolated incident may qualify as “severe” when it consists of actual or threatened physical assault].)

However, “FEHA's prohibitions are not a ‘civility code’ and are not designed to rid the workplace of vulgarity.” (Sheffield v. Los Angeles County Dep't of Social Servs. (2003) 109 Cal.App.4th 153, 161.) To maintain an action for harassment, a plaintiff must ultimately show that the conduct at issue “would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that [she] was actually offended.” (Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal.4th 121, 130-131.)

“[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.” (Reno v. Baird (1998) 18 Cal.4th 640, 645-646.)

In Plaintiff’s deposition, she answered that the complete list of all the ways in which Defendant Sandhu did or said anything that she found to be unfair, offensive, or discriminatory based on her pregnancy included:

· She questioned Plaintiff’s need to take time off due to her doctor appointment.

· She became frustrated that Plaintiff did not answer text messages and emails during the night and weekends.

· She provided Mr. Kozinn unfair feedback.

· She questioned what Plaintiff was going to do for coverage of HR when she was on maternity leave and what her plan was. (See Tran Depo., Vol. I, p. 189:4-190.5.)

In Plaintiff’s deposition, she recalled the following ways in which Defendant Kozinn did or said things that she found to be unfair, offensive, or discriminatory based on her pregnancy:

· He seemed annoyed that Plaintiff needed time off due to her pregnancy.

· He did not take any action in response to Plaintiff’s complaints about Defendant Sandhu’s treatment of Plaintiff.

· He gave negative feedback after Plaintiff told him when Plaintiff’s leave dates were going to be.

· He terminated Plaintiff’s employment and made the comment about needing to slow down for Plaintiff. (See Tran Depo., Vol. I, p. 193:20-194:18.)

In her deposition, Plaintiff recognized aspects of her work requirements and the work environment. Plaintiff acknowledged that employees complained that Defendant Sandhu expected employees to be available 24 hours a day, seven days a week, and became frustrated if they did not answer evening or weekend communications. (Tran Depo., Vol. II, 276:16-277:20.) Plaintiff also testified that the facility that she worked in, LAX6, operates 24 hours per day, seven days per week. (Tran Depo., Vol. II, p. 237:14-21.) Plaintiff also testified that as her pregnancy progressed, Defendants Kozinn and Sandhu asked her about her anticipated timing of maternity leave. (Tran Depo., Vol. II, 403:7-13, 407:10-408:14.)

However, Plaintiff disputes that Defendants’ was based only on business concerns; rather she claims the behavior was based on hostility toward her pregnancy. Plaintiff provides testimony and declarations indicating that Defendant Kozinn and Sandhu’s questioning of her maternity leave timing were not merely discussions as to how her pregnancy would impact the business; rather they questioned her in a way that was hostile based on her pregnancy, and this was evident by their tone, motivations, and intentions. (Tran Decl., ¶¶ 13-56; Exs. 10-19, Exs. 21-25; Ex. 29, Tran Depo. I, 190:6 – 190:10, 192:23 – 193:24, 186:23 – 187:21, 190:12-16; Ex. 30, Tran Depo. II, 349:22 - 354:8, 371:10 – 374:25; Ex. 32, Kozinn Depo. I, 81:6-83:4, 85:11-16, 97:19-98:2, 107:25-108:10, 112:13-113:7, 113:18-114:7, 116:17-22, 136:5-21, 137:23-138:3, 145:7- 147:22, 147:23-25, 148:1-148:25, 164:22-165:12, 165:13-166:10, 166:11-20, 166:21-23, 169:14-170:3, 173:6-13, 173:17-174:18, 177:15-178:8 179:16-25, 181:19-182:13, 183:20-185:15, 186:6-188:5, 192:8-15, 224:16-19, 226:6-9; Ex. 33, Kozinn Depo. II, 256:8-257:9, 259:5-260:22, 261:19- 262:23, 263:22-264:6, 270:15-271:9, 272:1- 273:4, 277:14-280:9, 281:17-282:1, 309:7-25, 341:2-8, 341:20-342:21, 345:6-8.)

For example, Plaintiff declares that in June 2017, she notified Defendant Sandhu that she was experiencing pain and severe morning sickness; in response, Defendant Sandhu brushed Plaintiff off and curtly responded “Oh, you’ll be fine.” (Tran Decl., ¶29; Ex. 31, Sandhu Depo., 209:18-210:12.) Plaintiff also declares that while she did not experience issues with Defendant Sandhu before, Defendant Sandhu became less receptive and expressed frustration with her by telling her “Why did your doctor put you out so early? My doctor didn’t put me out that early.” (Tran Decl., ¶¶ 29, 44; Ex. 30, Tran Depo., Vol. II, 288:18-291:25.) Further, Defendant Kozinn asked Tran in a hostile tone when she planned to take maternity leave and if she were sure California provided for that much time off. (Tran Decl., ¶35; Ex. 32, Kozinn Depo., Vol. I, 224:16-19, 226:6-9.) Defendant Kozinn also told Plaintiff to use PTO or vacation if she wanted a day off for her doctor’s appointment. (Tran Decl., ¶¶45-49; Ex. 16-17; Ex. 32, Kozinn Depo., Vol. I, 181:19-182:13.)

The Court finds that Plaintiff has presented evidence that raises a triable issue of material fact to whether the conduct by Defendants Kozinn and Sandhu was pervasive and sufficient to alter the conditions of her employment, by virtue of Defendants’ comments and questions regarding her pregnancy.

The Court DENIES the motion for summary judgment and DENIES the summary adjudication as to issues 1-3.

2. Second, Sixth, and Seventh Causes of Action: Discrimination and Retaliation (Issue 4, 8)

Plaintiff’s second cause of action is for discrimination based on disability, medical condition, gender, and sex. (Complaint, pp. 9:4-10:17.) Plaintiff alleges that “Defendants clearly discriminated against Plaintiff when she planned to use her legally protected medical leave for pregnancy and then failed to promote Plaintiff because she was pregnant.” (Id. at ¶ 43.) Plaintiff also alleges that “her supervisors discriminated against Plaintiff by punishing her for her pregnancy with false poor performance reports, failed to promote her, and then eventually terminated her days prior to her medical leave.” (Ibid.) Accordingly, Plaintiff’s discrimination cause of action is based on her pregnancy status, and as an initial matter, Defendants’ do not dispute that Plaintiff is a member of the protected classes of gender, sex, disability, and medical condition.

Plaintiff’s sixth and seventh causes of action are for retaliation in violation of Government Code section 12940(h) and Labor Code section 1102.5. Plaintiff alleges that she was retaliated against when Defendants treated Plaintiff poorly and punished her by failing to promote her, constantly criticized her work, made comments related to her pregnancy and maternity leave, and ultimately terminated her after Plaintiff requested an accommodation of additional time off due to pregnancy complications. (Complaint, ¶¶80-83, 89.)

Government Code section 12940, subdivision (a) prohibits discrimination based on sex, pregnancy, childbirth, or related medical conditions. To state a cause of action for discrimination in violation of FEHA, a plaintiff must allege that “(1) [s]he was a member of a protected class, (2) [s]he was qualified for the position he sought or was performing competently in the position he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

An employee seeking recovery on a theory of unlawful discrimination must plead that she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment. (See Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.)

The standards for retaliation claims follow the same essential formula as the standards for discrimination claims:

“Past California cases hold that in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation “drops out of the picture,” and the burden shifts back to the employee to prove intentional retaliation. [Citation.]” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

a. Defendants Raise a Legitimate Non-Discriminatory Reason for Termination

An employer may defend against such a claim by pointing to a legitimate, non-discriminatory basis for its actions. (See Guz, supra, 24 Cal.4th at p. 358.) "The ultimate issue is whether the employer had a discriminatory motive. Thus, the employer's reasons if honestly believed and nondiscriminatory on their face may preclude a finding of discrimination, even if such reasons are ‘foolish or trivial or baseless.' [Citations.]" (Chin, et al., Cal. Prac. Guide: Employment Litigation (The Rutter Group 2017) ¶ 7:417.) "But where other evidence supports an inference of discriminatory motive, proof that the employer's reasons are illogical and inconsistent may ‘considerably assist' plaintiff's case because it suggests the employer had cause to hide its true reasons." (Id., ¶ 7:425.) “Legitimate reasons are those ‘that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. [Citations.]’ [Citation.]” (Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 754.)

An employee's violation of company policy constitutes a legitimate, nondiscriminatory reason for the discharge of employment, (See, e.g., Wills v. Superior Court (2011) 195 Cal.App.4th 143, 171).

Defendants do not dispute that Plaintiff can make a prima facie showing of discrimination in violation of the FEHA. However, Defendants argue that Plaintiff was terminated for a legitimate nondiscriminatory reason because Defendants “reasonably believed that Tran had exercised poor judgment, engaged in misconduct, and violated Golden State’s trust and policies.” (Defendants’ MPA, pp. 15:8. 17:3-4.) Defendants argue that “Tran undisputedly violated Golden State policy by regularly staying home full days she reported as worked (and otherwise appearing at work for abbreviated hours) without obtaining permission.” (Id. at p. 15:19-21.) Defendants maintain that Plaintiff’s poor performance of “disregard[ing] the commonsense directive she was provided to maximize coverage at LAX6” by “regularly fail[ing] to appear for a full workday” is a legitimate nondiscriminatory reason for Plaintiff’s termination. (Id. at p. 16:4-10.) Defendants also argue that Plaintiff’s violation of Golden State’s policy and Kozinn’s trust when she lied about the extent of her absences is another legitimate nondiscriminatory reason for her termination. (Id. at pp. 16:25-17:2.)

In Plaintiff’s deposition, she testifies that as a senior HRA, she was assigned to a specific shift of associates on the floor she was responsible to support, and as an HRBP she was assigned to a specific shift. (Tran Depo., Vol. I, 141:8-16, 150:8-10.) The LAX6 facility in which Plaintiff worked operates 24 hours per day, seven days per week. (Tran Depo., Vol. I, 237:14-21.) Plaintiff also testifies that she remembers Defendant Kozinn mentioning that she “still need to - - [she] can figure out [her] own schedules and that . . . [she] can figure out her [own] schedule to cover the business need and time off and working to make sure that the business is covered but still taking care of [herself].” (Tran Depo., Vol II, 353:1-11.)

Evidence is presented that demonstrates that Plaintiff was absent from work contrary to Defendants’ policy and that other employees noticed Plaintiff’s absence. For example, Plaintiff did not appear onsite for work on the following dates when she had doctor’s appointments: April 14th at 3:45 p.m., June 9th at 2:00 p.m., July 14th at 1:30 p.m., July 20th at 2:45 p.m., and August 15th at 4:30 p.m. (Tran Dep. Vol. II, 328:10-388:7; Dagan Decl. at ¶¶ 3-5, Ex. A [Tran Badge Swipes].) On May 15th when Tran had a doctor’s appointment at 4:15pm, Tran came to work for four hours. (Dagan Decl. at ¶¶ 3-5, Ex. A [Tran Badge Swipes].) From April through August 2017, Tran’s badge scans indicate she did not appear at any facility on 19 workdays, excluding days in which she had known medical appointments and a funeral, was traveling, or was at an off-site work function. (Kozinn Decl., ¶ 23, Ex. D [Kozinn Chart at GSTRAN000376-379]; Dagan Decl. at ¶¶ 3-5, Ex. A [Tran Badge Swipes].)

Plaintiff’s absence impacted the work because she regularly failed to attend the daily 9 a.m. production meeting in person and during her interview, Defendant Kozinn told her that it was important to attend the 9 a.m. production meeting. (Kozinn Decl., ¶ 6; Tran Depo., Vol. 2, 233:22- 235:5, 304:6- 305:23.) Golden State has a written policy, which states: “If you are going to be absent or late to work, we expect to hear from you before the start of your workday.” (Kozinn Decl., ¶ 11, Ex. A (GSTRAN000183- 184).)

Further, Defendant Sandhu asked why Tran was missing entire workdays for her physician appointments. (Tran Dep. Vol. I, 187:5-21.) During a regularly scheduled one-on-one meeting with Defendant Kozinn, Defendant Sandhu raised a concern that she often did not know where Tran was or how to utilize her onsite, and that her operations employees had asked who they should go to for HR assistance, indicating that Tran was not visible on-site or earning their trust. (Kozinn Decl., ¶ 12.)

The Court finds that Defendants present a legitimate nondiscriminatory reason for Plaintiff’s termination, by demonstrating that Plaintiff has a history of violating Defendants’ policy of not appearing at work for a full workday and having absences that were unaccounted for, which impacted other employees. Thus, the burden shifts to Plaintiff to present evidence demonstrating that Defendants’ decision for terminating Plaintiff was the product of discriminatory animus.

b. Plaintiff’s Evidence is Sufficient to Show Pretext and/or Animus for Discriminatory and Retaliatory Actions

Once an employer presents a nondiscriminatory reason for the termination, “[t]he central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus. The employer's mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to a judgment in his favor. Thus, citing a legitimate reason for the challenged action will entitle the employer to summary judgment only when the employee's showing, while sufficient to invoke the presumption, is too weak to sustain a reasoned inference in the employee's favor.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.)

A plaintiff may prove pretext either indirectly (showing that the employer's reason is “unworthy of credence”) or directly (showing that the employer was more likely motivated by discrimination). (Chin, et al., Cal. Prac. Guide: Employment Litigation (The Rutter Group 2017) ¶ 7:437.) “An inference of intentional [retaliation] cannot be drawn, however, solely from proof that the employer's stated reasons are unworthy of belief: “The pertinent statutes do not prohibit lying, they prohibit [retaliation].”” (Id., ¶ 7:438.)

“[E]ven though we may expect a plaintiff to rely on inferences rather than direct evidence to create a factual dispute on the question of motive, a material triable controversy is not established unless the inference is reasonable. And an inference is reasonable if, and only if, it implies the unlawful motive is more likely than defendant's proffered explanation. (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.)

This standard makes it difficult to resolve claims of discrimination or retaliation on summary judgment, where the court draws all reasonable inferences in favor of the party opposing such a motion. Many employment cases will depend to some degree on “issues of intent, and motive, and hostile working environment, issues not determinable on paper. Such cases . . . are rarely appropriate for disposition on summary judgment, however liberalized it be.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286.)

Plaintiff provides evidence of Defendants’ biased motivation to discriminate and retaliate against Plaintiff for her pregnancy related conditions, including that:

· Kozinn criticized Tran for her purported absence from the facility, knowing her attendance was affected by her pregnancy. (Tran Decl., ¶¶ 19-20, 33-35.)

· Tran told Kozinn she had been attending doctor’s appointments for her pregnancy, that she frequently experienced morning sickness, suffered from gestational diabetes, back pain, and preeclampsia, and that she was going to take maternity leave early, around the beginning of October. (Tran Decl., ¶¶ 19-22; Ex. 32, Kozinn Depo, Vol. I, 164:22-166:10.; Ex. 30, Tran Depo. II, 354:4-8, 371:10–374:25.)

· Despite having such knowledge, Kozinn focused on Tran’s attendance and subsequently told her she needed either to accept a severance agreement or to be fired after an investigation. (Tran Decl., ¶ 41; Ex. 12, August 29, 2017 Nicki Tran’s Response to Kozinn’s August 28, 2017 Email; Tran Decl., ¶¶ 48-54; Ex. 32, Kozinn Depo. I, 164:22-166:20, 166:21-23, 169:14-170:3, 173:6-13, 173:17- 174:18, 177:15-178:8, 179:16-25, 181:19-182:13, 183:20-185:15, 186:6-188:5, 192:8-20, 224:16-19, 226:6-9; Ex. 33, Kozinn Depo. II, 256:8- 257:9, 259:5-260:22, 261:19-262:23, 263:22- 264:6, 270:15-271:9, 272:1-273:4, 277:14-280:9, 281:17-282:1, 309:7-25, 341:2-8, 341:20-342:21, 345:6-8.)

· Kozinn questioned Plaintiff on whether California allowed for all the leave she would be taking. (Tran Decl., ¶ 35; Ex. 32, Kozinn Depo. I, 224:16-19, 226:6-9.)

· Kozinn ignored Plaintiff’s improved attendance and did not give her one opportunity to improve her performance. (Ex. 32, Kozinn Depo. I, 97:19-98:2.)

· Sandhu’s comments, which clearly influenced Kozinn’s decision, include 1) blaming Tran in front of other employees for not being present because of her pregnancy, 2) expressing frustration to Tran because she needed time off for doctor’s appointments, 3) questioning Tran about her pregnancy, 4) complaining to Kozinn that Tran was not spending enough time at the facility, and 5) asking Tran why she needed so much time off when Sandhu did not get that much. (Tran Decl., ¶¶ 29, 44; Ex. 31, Sandhu Depo., 209:18-210:12; Ex. 7, Sandhu Text to Tran; Ex. 36, Teague Depo., 43:17-45:4, 45:9-46:7; Ex. 30, Tran Depo. II, 288:18-291:25.)

Plaintiff presents evidence of a reasonable inference that Defendant’s legitimate nondiscriminatory business reason of terminating Plaintiff for her absences is a pretext for discriminatory and retaliatory animus based on her pregnancy status. The Court finds that Plaintiff has raised a triable issue of material fact as to whether Plaintiff’s pregnancy status was a substantial motivating reason for her termination or whether Defendant’s termination decision was truly a legitimate non-retaliatory business decision.

The Court DENIES Defendants’ motion for summary adjudication as to issue 4.

c. Causal Link

Defendants argue that Plaintiff’s retaliation claim fails for the additional reason that there is no causal relationship to the alleged protected activity. (Defendants’ MPA, p. 18:11-12.) Defendants assert that Plaintiff “cannot show that she engaged in protected activity related to Sandhu’s alleged treatment of her (which in any case did not amount to illegal conduct)” because “Tran never complained about being discriminated against or harassed by Sandhu based upon any protected classification – she only ever mentioned that she did not like Sandhu’s supposedly direct and demanding leadership style.” (Id. at p. 18:23-27.)

In opposition, Plaintiff argues that “Sandhu’s discriminatory animus influenced the retaliatory conduct, even if she did not ‘formally’ participate in Tran’s firing.” (Opp., p. 17:4-5.)

The “Cat's Paw” theory of retaliation recognized in Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 113 applies where the decision maker acts as an instrumentality of the supervisor who intends to retaliate against the plaintiff. The “Cat's Paw” theory of retaliation does not require that each person allegedly involved in the steps leading up to termination be responsible for the decision to terminate, but only that the ultimate decision to terminate was the result of the decisionmaker in effect acting as the instrumentality of the supervisor who contributed information toward the goal of retaliating against the plaintiff.

As discussed earlier, Defendant Sandhu made remarks about Plaintiff’s pregnancy directly to Plaintiff and to others, demonstrating that her discriminatory animus influenced the retaliatory conduct ultimately resulting in Plaintiff’s termination. For example, these comments include:

· Sandhu brushed-off Plaintiff in response to Tran notifying Sandhu that she was experiencing pain and severe morning sickness, and said “Oh you’ll be fine.” (Tran Decl., ¶ 29; Ex. 31, Sandhu Depo., 209:18-210:12.)

· Sandhu said to Tran, “Why did your doctor put you out so early? My doctor didn’t put me out that early.” (Tran Decl., ¶ 44; Ex. 30, Tran Depo. II, 288:18-291:25.)

· Kozinn brought up Sandhu’s complaints to him about Tran, amongst other performance concerns Kozinn had not previously discussed with her. (Tran Decl., ¶¶ 33-35.)

· On August 21st, Sandhu advised Kozinn she had been unable to find Tran to continue a conversation and asked Kozinn for help finding Tran. (Kozinn Decl. at ¶ 16.)

· In response to his August 2017 observations and Sandhu’s feedback regarding Tran’s onsite presence, Kozinn reviewed Tran’s badge scans recording her presence at LAX6, and ONT2 where Tran occasionally appeared for work. (Kozinn Decl. at ¶ 21.)

· Sandhu had an expectation that a pregnant employee with complications must be on the floor most of the time. (Ex. 36, Teague Depo., 87:1-88:5; Ex. 38, Librenjak Depo.,13:23-25, 14:6-15:1.)

· Kozinn and Sandhu continued to make it difficult for Tran to take PTO. (Tran Decl., ¶¶ 45-48; Exs. 16-17; Ex. 30, Tran Depo. II, 236:16-24, 288:18-291:25, 407:23-408:23; Ex. 33, Kozinn Depo. II, 256:8-257:9, 259:5-260:22, 261:19- 262:23, 263:22-264:6, 270:15-271:9, 272:1- 273:4, 277:14-280:9, 281:17-282:1, 309:7-25, 341:2-8, 341:20-342:21, 345:6-8.)

The Court finds that there are triable issues of material fact as to the causation element of retaliation under the Cat’s Paw theory of retaliation, as there is evidence of Sandhu’s retaliatory animus toward Plaintiff based on Plaintiff’s pregnancy status, and that Sandhu was a material contributor to the decision to terminate Plaintiff.

The Court DENIES Defendants’ motion for summary adjudication as to issue 8.

3. Third Cause of Action: Failure to Prevent FEHA Violations (Issue 5)

A cause of action for failure to prevent violations of the FEHA is only sustainable if a defendant in fact violated the FEHA. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286.) Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented. (Id. at p. 289.)

As explained above, the Court found that there are triable issues of material fact as to the discrimination, retaliation, and harassment claims precluding summary adjudication of those issues, therefore the Court DENIES Defendant’s motion for summary adjudication as to the third cause of action as well.

[The Court can’t help but note that this is a meaningless cause of action; it gains Plaintiff nothing to keep this cause of action and it gains Defendant nothing to have the cause of action dismissed. This is because a plaintiff cannot win on a Failure to Prevent Discrimination cause of action unless she also wins on her underlying discrimination cause of action. Plaintiff either wins on both causes of action or on neither. But Plaintiff cannot collect one dime more in damages from having won on both causes of action. Thus, the cause of action of superfluous. The Court does not understand why Plaintiff would waste her time trying to plead and prove this cause of action to the jury; the Court does not understand why Defendant would waste its time in trying to dismiss this cause of action.]

4. Fourth and Fifth Causes of Action: Reasonable Accommodation and Failure to Engage in the Interactive Process (Issues 6, 7)

Defendants argue that Plaintiff was provided with her requested accommodations relating to her pregnancy and morning sickness, such as attending medical appointments. (Defendants’ MPA, p. 19:3-10.) Defendants argue that Plaintiff “was allowed and did take time for her medical appointments and morning sickness – even though Tran did not record that time as paid time off.” (Id. at p. 19:11-12.) Defendants maintain that Plaintiff never requested an accommodation of working remotely. (Id. at p. 19:18-25.) Defendants also argue that “Golden State was prepared to accommodate Tran to take maternity leave” because “Kozinn had organized for another HRBP to take over Tran’s job duties while on leave, and had in fact welcomed back and promoted an HRA from maternity leave in this time period.” (Id. at p. 20:2-4.)

In opposition, Plaintiff argues that Defendants failed to accommodate Plaintiff because “Defendants knew Tran was pregnant, had severe morning sickness, and needed to attend medical appointments for her pregnancy and complications from her pregnancy” and “any claim defendants may make that they accommodated Tran is undercut by their very reason for firing her – her attendance.” (Opp., p. 18:15-17.) Plaintiff argues that “the fact that [she] had PTO and was prevented from applying it retroactively demonstrated defendants’ intentions in not accommodating her.” (Id. at p. 18:21-22.) Plaintiff asserts that when she “applied to the LOA department for her absences on September 12 and 13, she was fired the next day.” (Id. at p. 18:22-23.) Plaintiff also argues that Defendants failed to engage in the interactive process because when Plaintiff “informed Kozinn of her need to take time off to attend doctor appointments and her need for an adjusted work schedule because of her pregnancy, complications, and severe morning sickness[,] . . . Kozinn never further engaged Tran” and instead “simply told her to manage the business needs and did not further communicate about accommodations for her.” (Id. at p. 19:10-16.)

Government Code section 12940(m)(1) provides that it is unlawful for an employer “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” Government Code section 12940(m)(2) provides that it is unlawful for an employer to “retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.”

Government Code section 12940(n) provides that it is unlawful for an employer “to fail to engage in a timely, good faith, interactive process with the employee or application to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”

Plaintiff asked Defendant for time off needed to attend physician appointments and that she be able to take early calls from home when she experienced morning sickness. (Tran Dep. Vol. 2, 351:7-352:19.) In response, Plaintiff recalls Defendant Kozinn mentioning that she can figure out her own schedules to make sure that the business is still covered. (Tran Depo., Vol. 2, 353:1-11.) Plaintiff also remembers that she mentioned to Defendant Kozinn that she might need some accommodations for working certain hours and support for time off for her pregnancy doctor appointments. (Id. at 352:12-22.) Plaintiff also acknowledges that Defendant Kozinn mentioned that he would send someone over to cover Plaintiff’s duties with LAX6 when she starts her leave of absence. (Id. at 404:20-405:12.)

It is undisputed that Defendants anticipated the need to accommodate Plaintiff for her upcoming pregnancy leave of absence.

There is, however, a triable issue of material fact as to whether Defendants accommodated Plaintiff prior to her upcoming leave of absence, and whether Defendant engaged in the interactive process when Plaintiff told Defendant Kozinn that she was pregnant and would require accommodations in her work schedule due to her doctor’s appointments and morning sickness.

The Court DENIES Defendants’ motion for summary adjudication as to issues 6 and 7.

5. Eighth Cause of Action: Violation of California Family Rights Act (Issues 9, 10)

To establish a violation of the California Family Rights Act (“CFRA”), Plaintiff must show the following: (1) 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.” (Rogers v. County of Los Angeles (2011) 198 Cal. App. 4th 480, 491.) An employer is defined as “any person who directly employs 50 or more persons to perform services for a wage or salary.” (Gov. Code, § 12945.2, subd. (c)(2)(A), as amended by 2019 Cal. Legis. Serv. Ch. 718 (A.B. 1748).)

In support of their motion for summary adjudication as to issues 9 and 10, Defendants merely assert that Kozinn and Sandhu cannot be individually liable for any alleged violation of the California Family Rights Act. (Defendants’ MPA, p. 20:6-10.) Defendants do not present any facts to support this assertion, neither in the memorandum of points and authorities, nor in the separate statement, thus do not satisfy their initial burden of proof to present facts to negate an essential element, or to establish a defense as to this cause of action as to Sandhu and Kozinn. (Code Civ. Proc., § 437c, subd. (p)(2).) Defendants’ one citation is to an unreported 2008 district court case, which has no precedential value.

The Court DENIES Defendants’ motion for summary adjudication as to issues 9 and 10.

6. Ninth Cause of Action: Violation of Pregnancy Disability Leave Laws (Issue 11)

It is an unlawful employment practice for a covered employer to interfere with, restrain, or deny the exercise of or the attempt to exercise rights under the pregnancy disability leave laws. (Gov. Code, § 12945(a).)

Defendants identify the eleventh issue for the Court to summarily adjudicate in their notice of motion, but they do not mention this issue anywhere in their memorandum of points and authorities. Accordingly, Defendants did not satisfy their initial burden of proof by presenting facts to negate an essential element, or to establish a defense as to this cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)

The Court DENIES Defendants’ motion for summary adjudication as to issue 11.

7. Tenth Cause of Action (Issue 12)

In order to sustain a claim of wrongful termination in violation of fundamental public policy, plaintiff must prove that she was terminated in violation of a policy that is (1) fundamental, (2) beneficial for the public, and (3) embodied in a statute or constitutional provision. (Turner v Anheuser-Busch, Inc (1994) 7 Cal. 4th 1238, 1256.)

Although Defendants do not discuss the merits of this issue in their moving papers, the Court has found that there are triable issues of material fact as to the validity of Plaintiff’s FEHA claims as explained above. Accordingly, the Court DENIES Defendant’s motion for summary adjudication as to the tenth cause of action.

Case Number: BC699931    Hearing Date: October 30, 2019    Dept: 34

SUBJECT: Motion to Compel Production of Documents

Moving Party: Plaintiff Thu Nguyet Thi “Nicki” Tran

Resp. Party: Defendant Golden State FC, LLC

Plaintiff’s motion to compel production of documents is DENIED.

PRELIMINARY COMMENTS:

Defendant’s sur-reply does not contain actual page numbers; citations in the Court’s opinion are calculated by counting the pages. Counsel is instructed to comply with the California Rules of Court re pagination in future pleadings.

BACKGROUND:

Plaintiff Thu Nguyet Thi “Nicki” Tran (“Plaintiff”) commenced this action on March 28. 2018, when she filed a complaint against Defendants Golden State FC, LLC, Kuldip Sandhu, an individual, Adam Kozinn, an individual, and Does 1 through 20 (“Defendants”) for allegations of gender and sex discrimination and harassment on the basis of pregnancy, as well as interference and retaliation for requesting maternity leave and medical leave under the California Family Rights Act. On January 14, 2019, Plaintiff filed an amendment to the complaint, substituting DOE 1 with Amazon.Com, Inc, DOE 2 with Amazon Corporate, and DOE 3 with Amazon.Com Services, Inc. On April 2, 2019, Plaintiff filed an amendment to the complaint, substituting DOE 4 with Amazon.com.kydc LLC.

Plaintiff alleges that she began her employment with Defendants as Senior Defendants as a Senior Human Resources Assistant. (Complaint at ¶ 10.) On or around April 2016, Plaintiff was promoted to Human Resources Business Partner. (Id. at ¶ 11.) On or around December 2016, Tran transferred to the Amazon Fresh, LAX6 facility and defendant Adam Kozinn became Plaintiff’s direct supervisor. (Id. at ¶ 12.) Plaintiff alleges that after she announced that she was pregnant, she took several phone calls at home due to her severe morning sickness and occasionally took time off for her doctor appointments related to her pregnancy. (Id. at ¶¶15-17.) Plaintiff alleges that Defendants claimed that Plaintiff was not available at work and after an investigation, Defendants told Plaintiff she would either need to accept a severance agreement or be subjected to a misconduct investigation, thus effectively terminating her employment. (Id. at ¶¶21-22, 25-27.)

On October 4, 2019, Plaintiff filed the instant motion to compel production of documents.

ANALYSIS:

A. Legal Standard

Motions to compel further responses to discovery requests must always be accompanied by a meet-and confer-declaration (Code Civ. Proc., § 2016.040) demonstrating a “reasonable and good faith attempt an informal resolution of each issue presented by the motion.” (Id., §§ 2030.300(b), 2031.310(b)(2), 2033.290(b).) They must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (Cal. Rules of Court, rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (Id., rule 3.1345(c).)

A motion to compel further responses to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc. § 2031.310(b)(1).) “To establish ‘good cause,’ the burden is on the moving party to show both: [¶] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [¶] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial.) [Citations.] [¶] The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” (Edmon & Karnow, California Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:1495.6.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation] These rules are applied liberally in favor of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions).” (Edmon & Karnow, supra, at ¶ 8:1496.) 

B. Discussion

Plaintiff moves for an order compelling Defendant Golden State FC, LLC to produce documents responsive to her request for production of documents, set one, within 20 days. (Notice of Motion, p. 2:4-8.) Plaintiff asserts that “despite claiming to have relied on their investigation of Tran and the advice of counsel as the basis for the termination decision, Defendant continually refuses to produce reports, documents, emails, and other document related to the investigation on the grounds of attorney-client privilege and work product doctrine.” (Motion, p. 1:7-10.) Plaintiff argues that if she “is unable to contest the adequacy and reasonableness of Defendant’s investigations, she will not only have been deprived of potentially material evidence of pretext, but Defendant[s] will be free to continue to use their investigations as both a shield and a sword, as they do in their pending summary judgment motion.” (Id. at p. 2:9-13.)

Plaintiff explains that she “propounded the following requests for production of documents that are at issue in this motion:

Request for Production No. 15: “All DOCUMENTS and ELECTRONIC RECORDS referring or relating to whether defendant GOLDEN STATE FC, LLC has ever used progressive discipline procedures with its employees, including, but not limited to, oral reprimands, written reprimands, formal warnings, suspensions, and salary reductions, as a means of reprimanding the employee or improving job performance.”

Requests for Production Nos. 25-27: These requests call for documents and information related to an investigation into Plaintiff’s performance and company policy violations, as well as any investigations related to Plaintiff in general.

Request for Production No. 114: This interrogatory requests documents that are related to communications between Plaintiff and supervisor, human resources employees, and employees in any leave department and communications about Plaintiff.

Request for Production No. 122: This interrogatory calls for documents that reference any employment or personnel issues, including Plaintiff’s maternity leave.” (Id. at pp. 3:15-4:3 [citing Cardenas Decl., ¶ 3; Ex. 2, Plaintiff’s Request for Production of Documents].)

Plaintiff argues that good cause exists that require compelling the production of these documents because investigative notes and reports are critical to defendants’ state of mind when making the termination decision. (Id. at p. 4:23-24.) Plaintiff asserts that although “it is clear that Defendants relied on the investigation, reports and correspondence about the investigation to terminate Tran’s employment,” Defendants refuse to produce “documents responsive to Plaintiff’s Requests for Production even though they relied on the materials in making the termination decision.” (Id. at p. 5:8-15 [citing Ex. 1, Answer; Ex. 10, De. MSJ at 16:25-17:2; 17:27-18:2].) Plaintiff argues that “Defendants must produce these additional documents if they wish to rely on the investigation as a legitimate reason for Plaintiff’s termination.” (Id. at p. 5:15-17.) Plaintiff argues that if “she is unable to challenge the relied-upon reports, [s]he will be deprived of substantial evidence that may demonstrate both pretext and motive.” (Id. at p. 6:4-6.)

Plaintiff maintains that non-attorney’s investigative documents must be produced, which include documents from “Kozinn and the other Human Resources individuals who participated in the investigation and are not and never have been attorneys.” (Id. at p. 6:7, 6:26-27.) Plaintiff argues that “it is clear from the evidence that there was at least one (likely others) call between Kozinn, ‘legal,’ and other non-legal Amazon employees” and “the mere fact that the notes and findings from the investigation were sent or conveyed to counsel, does not make the substance of such documents or communications privileged.” (Id. at pp. 6:27-7:3 [citing Cardenas Decl., Ex. 9].) Plaintiff asserts that she “will incur substantial prejudice if Defendant is allowed to ‘have it both ways’ as it concerns the investigative reports, related documents, communications, and correspondence.” (Id. at p. 7:25-27.)

In opposition, Defendant argues that it “has produced responsive documents that Tran’s supervisor, Defendant Adam Kozinn, relied upon in investigating Tran’s onsite presence and engagement” but “has not produced privileged communications identified in Golden State’s privilege log.” (Opp., p. 1:4-7.) Defendant maintains that “the privilege log lists legal advice communications with Golden State’s in-house or outside counsel, and portions of one document prepared at the direction of counsel, all of which are undisputedly privileged.” (Id. at p. 1:7-9.)

Defendant asserts that it “has produced more than 19,000 pages of documents – including all documents it has identified as reviewed and prepared by Kozinn in his investigation other than those listed on the privilege log.” (Id. at p. 1:18-20.) Defendant states that it “also identified the persons involved in the investigation both in written discovery and Kozinn’s Person Most Knowledgeable (‘PMK’) deposition.” (Id. at p. 1:20-22.) Defendant explains that “the privilege log identifies all persons sending or receiving the listed documents” and that Defendant “has also confirmed that it has not identified any other investigation regarding Tran.” (Id. at p. 1:22-23.)

Defendant explains that after an informal discovery conference with the Court, “the parties agreed upon an e-mail search and review parameter whereby Golden State collected, reviewed, and produced the following set of documents:

Defendant will produce non-privileged emails located upon a reasonably diligent search between Plaintiff and the following individuals: Multi-Site Lead Kuldip Sandhu, Regional Human Resources Manager Adam Kozinn, Senior Human Resources Business Partner Jenell Smart, Senior Employee Relations Specialist Kelli Fitzgerald, Senior Regional Human Resources Manager Stacey Gibson, and Employee Relations Manager Joe Pekich from November 1, 2016 to March 28, 2018. Defendant will also produce non-privileged emails that were sent to, from, cc, or bcc Adam Kozinn, Kuldip Sandhu, Jenell Smart, Kelli Fitzgerald, Stacey Gibson, and Joe Pekich discussing Plaintiff from November 1, 2016 to March 28, 2018 located upon a reasonably diligent search.” (Id. at p. 4:15-25 [citing Matayoshi Decl., ¶ 18; Ex. L].)

Defendant asserts that therefore, Plaintiff’s “counsel was aware that Golden State would withhold certain documents as privileged.” (Id. at p. 4:25-26 [citing Matayoshi Decl., ¶ 18].)

Defendant argues that it “supplemented its responses four times as part of the meet and confer process, and produced more than 19,000 pages of responsive documents to Tran’s discovery requests, as well as a privilege log.” (Id. at pp. 4:27-5:1 [citing Matayoshi Decl., Exs. L, M, N].) Defendant explains that the “production included the documents Kozinn relied upon and referenced in his investigation of Tran’s attendance, including Tran’s badge scans, Kozinn’s summary and analysis of Tran’s badge scans, Kozinn’s ongoing written communications with the HR Team during the course of the investigation (other than those seeking legal advice from counsel Wyatt), Kozinn’s September 12 detailed description of his investigation steps and conclusions, and his coaching and concerns about Tran’s performance.” (Id. at p. 5:1-7.)

Defendant asserts that it “withheld or redacted seven pre-litigation documents based upon attorney-client privilege and attorney work product, listed in Gold State’s privilege log.” (Id. at p. 5:7-9 [citing Matayoshi Decl., Exs. M, N].) Defendant disagrees with Tan’s argument that in relying upon Kozinn’s investigation in taking the actions Tran challenges, Defendant has waived the privilege protecting Kozinn’s legal advice consultations with counsel Wyatt. (Id. at p. 6:13-23.) Defendant argues that these documents are privileged because counsel Wyatt did not conduct the investigation, but rather these documents only include counsel Wyatt’s legal advice to Kozinn and the HR team. (See id., p. 7:14-16 [citing Matayoshi Decl. at ¶¶ 19 and 23, Exs. B at ¶ 27, E, and O at 250:24-252:1, 254:7-10, and 258:7- 11].)

Defendant argues that “privilege is not waived simply because an attorney-client privileged communication may discuss publicly known facts.” (Id. at p. 10:1-2.) Defendant maintains that “Kozinn’s communications with counsel are attorney-client privileged, regardless of whether any arguably non-privileged or factual material was discussed in such communications.” (Id. at p. 11:2-3.)

In reply, Plaintiff asserts that “many of the emails being withheld prior to September 15, 2017 are all sent from defendant Kozinn” and that “Defendants cannot hide behind the privilege because a member of the legal department was copied on an email where defendant Kozinn is relaying facts.” (Reply, p. 7:15-17.) Plaintiff argues that “Defendants’ privilege log gives Plaintiff no information as to whether the person from the legal department was merely cc’d or involved in responding to the communications.” (Id. at p. 5:6-8.) Plaintiff asserts that “if the Court finds that the communications go beyond a business decision and an attorney-client privilege exists, Tran requests an order for production or at the very least an in-camera review of these communications to determine whether the documents simply include Kozinn reiterating facts and just cc’d an in-house attorney.” (Id. at p. 5:8-12.)

Defendant filed a sur-reply to address Plaintiff’s arguments in the reply that were not addressed in the motion itself. Defendant asserts that “Tran argues for the first time that Golden State’s privilege log suggests that the subject emails were only sent from Defendant Adam Kozinn (‘Kozinn’), thus placing suspicion on their purpose.” (Sur-Reply, p. 2:5-7.) Defendant also states that “Tran makes central to her argument that in-house counsel was only providing business advice, not legal advice, a point that was never argued in her Motion past a general citation to a case.” (Id. at p. 2:7-9.)

Attached to its sur-reply, Defendant includes a second amended privilege log, which breaks down each e-mail in the threads listed in the original privilege log. (Sur-Reply Matayoshi Decl., ¶ 3, Ex. A.) Defendant asserts that this second amended privilege log shows multiple Wyatt e-mail correspondences on September 8, 12, 28, and 29. (Sur-Reply, p. 2:17-18.) Defendant argues that “these e-mails clearly rebut Tran’s assertion that Golden State is hiding behind the privilege simply ‘because a member of the legal department was copied on an email where defendant Kozinn is relaying facts.’” (Id. at p. 2:19-21 [citing Tran’s Reply, 7:16-17].)

Next, Defendant argues that Tran provides no support for her argument that “termination is a business decision, and therefore any advice on it is business advice.” (Id. at p. 3:11-12.) Defendant maintains that “Tran provides no evidence to suggest that Wyatt provided business advice, and in fact her Reply admits that she does not know.” (Id. at p. 3:18-21 [citing Reply at 3:5-6 (asserting that one of the remaining questions is whether “the employees from the legal [sic] provide[d] any business advice”)].) Defendant argues that “Tran has failed to meet her burden of showing that the attorney-client privilege does not apply to communications with Wyatt.” (Id. at p. 3:21-24.) Instead, Defendant contends that the evidence shows that Wyatt was consulted for legal advice because “Kozinn consulted with four individuals of the HR Team for business advice before including ‘legal,’ clearly suggesting that Wyatt would be consulted to provide legal advice.” (Id. at pp. 3:25-4:2 [citing Matayoshi Decl., Ex. E (Smart’s 8/29/17 email stating “I am going to get a call scheduled with us and legal”)].)

As indicated above, DPD No. 15 requires production of “[a]ll documents . . . referring or relating to whether defendant . . . has ever used progressive discipline procedures with its employees, including, but not limited to, oral reprimands, written reprimands, formal warnings, suspensions, and salary reductions, as a means of reprimanding the employee or improving job performance.” This would include every document that shows any progressive discipline ever meted out to any employee. The Court finds that Demand for Production of Documents No. 15 is grossly overbroad, and would infringe on the privacy rights of numerous third-parties.

However, Plaintiff has established good cause for the production of documents responsive to Request for Production of Documents Numbers 25-26, 114, and 112, as these documents might be relevant to prove pretext.

However, Defendant justifies its objections to the disclosure of these documents listed on the privilege log because Defendant explains that these seven emails contain legal advice sought by Defendant Kozinn and given by Counsel Wyatt, after an investigation was conducted by Defendant Kozinn. (See Matayoshi Decl. at ¶¶ 19 and 23, Exs. B at ¶ 27, E, and O at 250:24-252:1, 254:7-10, and 258:7- 11.) Defendant’s revised privilege log identifies seven emails, the authors and recipients of the emails, the email subject names, the date they were sent, reason for the privilege, and a description of the privilege. (See Matayoshi Decl., Ex. N.)

Plaintiff has not met her burden of showing waiver of the privilege. Kaiser Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217, 1220 holds that “if an employer has produced the substance of relevant in-house investigations performed by nonattorney personnel and seeks only to protect specific communications between those personnel and the employer's attorneys, the protections afforded by the law for communications between attorneys and their clients are not waived by the employer's pleading of the adequacy of its prelitigation investigation as a defense to an action for employee discrimination or harassment.” Unless it is established through other discovery that a significant part of any communication has already been disclosed to third parties, the attorney-client privilege nor the work product doctrine are waived. (See id. at p. 1227 [citing Evid. Code, §912(a)].)

Here, Plaintiff has been afforded full discovery of the investigation that was not conducted by Defendant’s attorney, but rather by Defendant Kozinn. Because Defendant has already produced documents that Kozinn, a non-attorney, relied upon in his investigation, except for certain emails on the privilege log, Defendant has not waived its attorney-client privilege or work-product privilege just by asserting the adequacy of its prelitigation investigation as a defense in this action. Plaintiff has not met her burden to establish through other discovery that a significant part of these communications on the privilege log have already been disclosed to third parties. (See id. at p. 1227 [citing Evid. Code, §912(a)].)

Further, Plaintiff has not met her burden to demonstrate the communications with Counsel Wyatt, listed on the privilege log, are solely business advice communications, which would prevent the attorney-client privilege from applying. The attorney-client “privilege is not applicable when the attorney acts merely as a negotiator for the client or is providing business advice,” because “in that case, the relationship between the parties to the communication is not one of attorney-client. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 735.) However, Plaintiff has not provided any evidence that the communications listed on the privilege log between Kozinn and Wyatt are business advice communications and not legal advice communications. Defendant has shown that Kozinn communicated with others regarding the investigation, before communicating with Counsel Wyatt to receive legal advice. (See Matayoshi Decl., Ex. E.)

Defendant has justified its objections based on attorney-client privilege and the work product protection. Plaintiff’s motion to compel production of documents is DENIED.