Abed v. Western Dental Services, Inc.

Facts

The statutory framework. The Fair Employment and Housing Act makes it “unlawful for an employer to engage in adverse employment practices against a person on the basis of ‘sex’ (Gov. Code, § 12940, subds. (a)–(d), (j)), a term defined to include ‘[p]regnancy or medical conditions related to pregnancy’ (id., § 12926, subd. (r)(1)(A)).” (Abed, supra, 23 Cal.App.5th at p. 735.) The specific provision on which Abed relied, section 12940, subdivision (a), provides that an employer cannot, based on a person’s pregnancy, “‘refuse to hire or employ the person or … refuse to select the person for a training program leading to employment’”; “‘bar or … discharge the person from employment’”; or “‘discriminate against the person in compensation or in terms, conditions, or privileges of employment.’” (Id. at pp. 735–736.) Because Abed relied exclusively on subdivision (a), the court expressly declined to address whether she “might also have a claim under section 12940, subdivision (c).” (Id. at p. 736, fn. 4.)

Western Dental’s hiring process and “evergreen” postings. Western Dental operates dental offices throughout California, including one in Napa. (Abed, supra, 23 Cal.App.5th at p. 731.) It accepts student externs, and “[e]xterns who want to be considered for full-time employment as dental assistants are required to submit a written application, undergo a background check, and be interviewed.” (Ibid.) The company posted online job openings for one of two reasons: to advertise actual open positions, or to “create a pool of applicants for positions that, while not currently open, might open in the future.” (Ibid.) These pool-building postings “were known as ‘evergreens,’ and they generated a list of candidates that could be tapped into quickly if a position opened.” (Ibid.) Critically, “[i]n March 2015, an open requisition for a dental assistant in the Napa office was approved, and a solicitation for applications was publicly posted,” and that posting remained on the website “throughout the relevant time period.” (Ibid.) Napa office manager Elvira Quintana “testified that she was not aware of the practice of posting evergreens and did not know of any positions in the Napa office being posted unless they were in fact open.” (Ibid.)

Abed’s externship. Ada Abed began a dental assistant program at Carrington College in July 2014, and to obtain her certificate she had to complete an unpaid 180-hour externship. (Abed, supra, 23 Cal.App.5th at p. 732.) She began her externship at the Napa office on May 18, 2015 — “the city where she wanted to live.” (Ibid.) “At the time, she was pregnant, which she did not disclose to anyone at Western Dental.” (Ibid.) The managing dentist, Dr. Andrew Rivamonte, told her to view the externship as “‘a four- to six-week working interview,’” and testified that “‘[a] majority of externs have been hired … after their externships,’” recalling no extern other than Abed who “did not obtain a permanent position there.” (Ibid.) Abed “consistently received high marks,” earning “above average” in all categories on her final evaluation, and Dr. Rivamonte described her as “‘on par with all the other externs [he] ever had at the office.’” (Id. at pp. 732–733.)

The discovery of Abed’s pregnancy. When Abed hung her partially open purse in the break room, floor supervisor Sabrina Strickling “saw ‘[t]he vitamins … sticking out of the purse’” and remarked, “‘Oh, she must be pregnant.’” (Abed, supra, 23 Cal.App.5th at p. 733.) Dental assistant Mirella DeHaro testified that Strickling later “‘said something to the effect that if [Abed] were pregnant, it would not be convenient for the office.’” (Ibid.) Abed herself overheard a conversation in which she “‘heard [her] name come out of [Strickling’s] mouth, and [she] heard pregnant in the same sentence’”; according to Abed, Strickling said, “‘[W]ell, if she’s pregnant, I don’t want to hire her.’” (Ibid.) A text-message screenshot indicated Abed overheard this on May 28, 2015. (Ibid.)

The false representation that no position was open. Strickling testified that “approximately two weeks after the discovery of Abed’s pregnancy, Quintana asked Strickling to tell Abed there were no open positions for a dental assistant in Napa, but that there was one in Vacaville.” (Abed, supra, 23 Cal.App.5th at pp. 733–734.) At a meeting in Quintana’s office, Strickling relayed that there were no Napa openings but that “‘maybe [Abed] would want to check Fairfield or Vacaville.’” (Id. at p. 734.) Abed did not follow up because, as she explained, her OB was in Napa and she “‘needed to be local to Napa.’” (Ibid.) She “did not apply for a position in the Napa office because Strickling had told her there were no openings for a dental assistant there.” (Ibid.) Yet “before her externship was over, Abed learned that an opening in the Napa office was posted on Western Dental’s website.” (Ibid.) On her last day, Strickling suggested Abed contact the Napa office to see if she could get a position “‘after she had her baby.’” (Ibid.)

A subsequent extern fills the position. Abed completed her externship on June 20, 2015. (Abed, supra, 23 Cal.App.5th at p. 734.) “Less than a week after Abed finished her externship,” a recruiter e-mailed Quintana about an extern candidate, and “in late July, Quintana requested and received approval to extend her an offer to become a dental assistant in the Napa office.” (Id. at pp. 734–735.) “Shortly afterward, that candidate was hired for the position created by the open requisition approved the previous March.” (Id. at p. 735.)

Procedural history

Abed filed an administrative complaint with the Department of Fair Employment and Housing, received a right-to-sue letter, and filed suit in September 2015, “bringing claims for pregnancy discrimination under the FEHA and invasion of privacy.” (Abed, supra, 23 Cal.App.5th at p. 735.) Western Dental moved for summary judgment. The trial court — Judge Rodney G. Stone of the Napa County Superior Court — granted the motion and “entered final judgment for the company in January 2017.” (Ibid.) The trial court ruled in Western Dental’s favor on the FEHA claim “on the basis that it was undisputed that Abed had not submitted an application.” (Id. at p. 731.) Notably, the trial court “properly recognized that Abed’s failure to apply … did not automatically defeat her FEHA claim,” but concluded she “could not establish that filing an application would have been futile under the futile-gesture doctrine.” (Id. at p. 739.)

Abed appealed only the dismissal of her FEHA claim; she “does not challenge the dismissal of her claim for invasion of privacy.” (Abed, supra, 23 Cal.App.5th at p. 735, fn. 2.) The Court of Appeal, Division One, in a unanimous opinion by Presiding Justice Humes, “reverse[d] in part and reinstate[d] the FEHA claim.” (Id. at p. 731.) The portion of the opinion addressing certain procedural defects (part II.A) was not certified for publication. (Id. at p. 726.)

Issue

The court framed the question at the outset: “This case asks whether a potential employer can be held liable under the … FEHA … for thwarting a pregnant woman from applying for a job by falsely telling her that no position is available.” (Abed, supra, 23 Cal.App.5th at pp. 730–731.) More precisely, the issue was whether Abed’s undisputed failure to submit a job application defeated her failure-to-hire claim as a matter of law on summary judgment, or whether she could nonetheless raise triable issues of intentional pregnancy discrimination by showing the employer falsely told her no position existed and thereby caused her not to apply. (Id. at p. 739.)

Holding

Reasoning

The McDonnell Douglas framework and the four prima facie elements. The court began by situating failure-to-hire claims within the burden-shifting structure of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, which “reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.” (Abed, supra, 23 Cal.App.5th at p. 736.) A plaintiff bears “the initial burden of producing evidence that establishes a prima facie case of discrimination.” (Ibid.) Though the elements “may vary depending on the particular facts,” the failure-to-hire plaintiff “‘[g]enerally … must provide evidence that (1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought … , (3) he [or she] suffered an adverse employment action, such as … denial of an available job, and (4) some other circumstance suggests discriminatory motive,’ such as that the position remained open and the employer continued to solicit applications for it.” (Ibid.) If established, the burden shifts to the employer to articulate “‘a legitimate, nondiscriminatory reason,’” after which the plaintiff may “‘attack the employer’s proffered reasons as pretexts.’” (Id. at pp. 736–737.)

The summary-judgment standard preserves the defendant’s initial burden. The court stressed that McDonnell Douglas “‘does not affect the procedural rule … that imposes on a defendant the initial burden when that party seeks summary [judgment].’” (Abed, supra, 23 Cal.App.5th at p. 737.) For an employer-defendant, that means an “‘initial burden to present admissible evidence showing either that one or more elements of [the] plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’” (Id. at p. 738.) Only then does the burden shift to the plaintiff to produce “‘substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus.’” (Ibid.) And the court reminded that “‘many employment cases present issues of intent, and motive … rarely appropriate for disposition on summary judgment.’” (Id. at pp. 738–739.)

A job application is not an element of the claim. The heart of the opinion is the court’s rejection of Western Dental’s contention that Abed’s claim “‘fails as a matter of law’” because she never applied. (Abed, supra, 23 Cal.App.5th at p. 739.) The court located the application requirement’s purpose precisely: “In most cases alleging a failure to hire for discriminatory reasons, the prima facie case includes as an element a showing that the plaintiff applied for the job. This is usually an element because it establishes that the employer knew the plaintiff was actually seeking a job.” (Id. at p. 738.) But because “‘[t]he prima facie case under McDonnell Douglas … is an evidentiary standard, not a pleading requirement,’” and a plaintiff’s burden “‘is not intended to be “onerous,”’” the importance of the framework “‘is not in its specification of the discrete elements of proof but is instead in its recognition that the … plaintiff carries the initial burden [at trial] of offering evidence which creates an inference that an employment decision was based on an illegal discriminatory criterion.’” (Id. at p. 739.) The court therefore announced its categorical holding: “[A]lthough we recognize that in most cases, a plaintiff who did not apply for a position will be unable to prove a claim of discriminatory failure to hire, a job application is not an element of the claim.” (Id. at pp. 739–740.)

The futile-gesture doctrine was not the correct frame. The court parted ways with the trial court’s reliance on the futile-gesture doctrine of Teamsters v. United States (1977) 431 U.S. 324. Under that doctrine, “‘[w]hen a person’s desire for a job is not translated into a formal application solely because of his [or her] unwillingness to engage in a futile gesture he [or she] is as much a victim of discrimination as is he [or she] who goes through the motions of submitting an application.’” (Abed, supra, 23 Cal.App.5th at p. 740.) But the court explained that Abed’s theory was different: “The claim is not that it would have been futile for Abed to apply … so much as it is that Western Dental caused her not to apply by falsely telling her for discriminatory reasons that no position was available.” (Ibid.) Accordingly, the trial court erred in faulting Abed for presenting “‘no evidence of a “consistently enforced discriminatory policy.”’” (Ibid.) Teamsters “did not hold that such a policy is the only means by which a plaintiff can come to believe that an application would be futile.” (Id. at p. 740.)

Lying about an opening is itself enough. Drawing on Teamsters’ recognition that an employer can deter applicants “‘more subtly … by [its] consistent discriminatory treatment of actual applicants, by the manner in which [it] publicizes vacancies, [its] recruitment techniques, [and its] responses to casual or tentative inquiries,’” the court reached its central pronouncement: “Abed has presented evidence that because she was pregnant she was falsely told that no position was available in the Napa office. In our view, this is enough to support a claim under the FEHA. Employers who lie about the existence of open positions are not immune from liability under the FEHA simply because they are effective in keeping protected persons from applying.” (Abed, supra, 23 Cal.App.5th at pp. 740–741.)

Federal authority reinforces the conclusion. The court marshaled federal Title VII decisions, noting that a FEHA pregnancy claim “‘is analogous to a federal claim under title VII.’” (Abed, supra, 23 Cal.App.5th at p. 741, fn. 6.) Citing EEOC v. Metal Service Co. (3d Cir. 1990) 892 F.2d 341, the court observed that “‘the failure to formally apply for a job opening will not bar a Title VII plaintiff from establishing a prima facie claim … as long as the plaintiff made every reasonable attempt to convey his [or her] interest in the job to the employer.’” (Id. at p. 741.) It distinguished Western Dental’s reliance on the absence of a class-wide policy: because “Abed was already an extern and had a preexisting relationship with the company,” there was “no logical reason to require her to show that Western Dental had a broader policy of discouraging pregnant women from applying.” (Id. at p. 742.) The court also faulted Western Dental for not producing “evidence of how it has treated other pregnant women in the hiring process.” (Ibid.)

Triable issues of intentional discrimination. Turning to the merits of the inference, the court found “significant evidence that Western Dental acted with ‘discriminatory animus.’” (Abed, supra, 23 Cal.App.5th at p. 743.) Strickling’s remarks — that Abed’s pregnancy “‘would not be convenient for the office,’” that “‘if [Abed is] pregnant, I don’t want to hire her,’” and the suggestion that Abed reapply “after she had her baby” — permitted “the inference that Abed would not be considered for a position while she was pregnant.” (Ibid.) Coupled with undisputed evidence that the no-opening representation was false — an open requisition existed, the position was publicly posted, and it was filled shortly after Abed left — “this evidence satisfied Abed’s burden of demonstrating triable issues.” (Ibid.)

Imputing a non-decisionmaker’s animus. The court rejected Western Dental’s argument that no one with hiring authority knew of the pregnancy. A plaintiff “‘need not demonstrate that every individual who participated in the failure to hire him [or her] shared discriminatory animus’”; rather, “‘showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory.’” (Abed, supra, 23 Cal.App.5th at p. 743.) Although Strickling lacked ultimate hiring authority, “she was clearly involved in the general process by which externs obtained permanent positions” and “in the specific events that led Abed not to apply.” (Id. at pp. 743–744.) The court drew a careful line: in “a typical failure-to-hire case … the evidence of Strickling’s limited involvement … might defeat the imputation of her discriminatory animus,” but here “the allegedly discriminatory act … was the thwarting of her application by falsely representing there was no opening, and there is evidence Strickling played a key role in effectuating that act.” (Id. at p. 744.)

Disputed reasons for not applying go to the jury. Finally, the court addressed Western Dental’s evidence that Abed lacked interest — she learned of the posting, never applied elsewhere, and ultimately pursued front-office work. This “may create a dispute about Abed’s reasons for not applying … but it does not conclusively establish that she would have not applied for the position had she been truthfully told one was available.” (Abed, supra, 23 Cal.App.5th at p. 744.) Abed “specifically testified that she did not apply … because she ‘was told there [were] no openings.’” (Ibid.) The court acknowledged that “‘a jury may eventually agree with Western Dental that it did not intentionally discriminate,’” but Abed “has presented enough evidence to entitle her to a trial on her FEHA claim.” (Ibid.)

Significance

Abed occupies a discrete and consequential niche in California failure-to-hire doctrine: it confirms that the formal-application “element” of the prima facie case is a proxy, not a prerequisite. By holding that “a job application is not an element of the claim” (Abed, supra, 23 Cal.App.5th at p. 740), the court aligned FEHA with the U.S. Supreme Court’s instruction in Swierkiewicz v. Sorema N.A. (2002) 534 U.S. 506 that the prima facie case is “‘an evidentiary standard, not a pleading requirement’” whose elements were “‘never intended to be rigid, mechanized, or ritualistic.’” (Abed, supra, at p. 739.) The application requirement, the court explained, exists to prove “that the employer knew the plaintiff was actually seeking a job” (id. at p. 738) — a function that can be satisfied by other evidence where, as here, the plaintiff communicated her interest and the employer affirmatively lied about the opening.

The decision’s most quotable contribution is its anti-circumvention principle: “Employers who lie about the existence of open positions are not immune from liability under the FEHA simply because they are effective in keeping protected persons from applying.” (Abed, supra, 23 Cal.App.5th at p. 741.) This forecloses a perverse incentive — an employer that successfully deters a protected applicant from applying cannot then invoke the absence of an application as a safe harbor. Abed also clarifies that the futile-gesture doctrine of Teamsters is not the exclusive route around the application requirement; a deceit-based theory is “a different, but also legitimate, reason for [the plaintiff] not to have applied.” (Id. at p. 740.) For the CACI No. 2500 disparate-treatment framework, Abed is a reminder that the listed prima facie elements bend to the proof; the touchstone is whether the evidence supports an inference that the decision rested on a protected characteristic.

The holding’s limits are real, however. The court repeatedly cabined its conclusion to the summary-judgment posture and to the unusual fact that the plaintiff “was already an extern and had a preexisting relationship with the company.” (Abed, supra, 23 Cal.App.5th at p. 742.) It conceded that “in most cases, a plaintiff who did not apply for a position will be unable to prove a claim of discriminatory failure to hire.” (Id. at pp. 739–740.)

Key quotes

“Although we recognize that in most cases, a plaintiff who did not apply for a position will be unable to prove a claim of discriminatory failure to hire, a job application is not an element of the claim.” (Abed, supra, 23 Cal.App.5th at pp. 739–740.)

“Employers who lie about the existence of open positions are not immune from liability under the FEHA simply because they are effective in keeping protected persons from applying.” (Id. at p. 741.)

“[S]howing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.” (Id. at p. 743.)

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Practice pointer

Open questions

The opinion expressly reserves several issues. First, the court “need not resolve whether [Abed] was excused from establishing a prima facie case under McDonnell Douglas” — including whether her direct evidence of discriminatory intent rendered the framework inapplicable — “because, even if she was not, she presented more than enough evidence to support an inference of discrimination.” (Abed, supra, 23 Cal.App.5th at p. 737, fn. 5.) Second, because Abed relied exclusively on section 12940, subdivision (a), the court “do[es] not address whether she might also have a claim under section 12940, subdivision (c),” which governs discrimination in training programs and unpaid limited-term positions. (Id. at p. 736, fn. 4.) Third, the court declined to decide whether Abed’s failure to apply “constituted a legitimate nondiscriminatory reason for not hiring her,” finding it immaterial whether the evidence is conceptualized as a prima facie case the employer failed to rebut or as proof of pretext: “Abed satisfied her responsive burden either way.” (Id. at p. 742.) Finally, the merits remain open: the court “recognize[d] that this case involves many disputed factual issues, and a jury may eventually agree with Western Dental that it did not intentionally discriminate against Abed.” (Id. at p. 744.)