Johnson v. United Cerebral Palsy/Spastic Children’s Foundation

Facts

Dewandra Johnson — known at work as “Renee” — began working for the United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties, a charitable corporation providing services to disabled adults, as a community trainer (caregiver) in November 2004. (Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, 746, 748, 750.) She was initially supervised by two program managers, Raquel Jimenez and Loraine Sandgren; Sandgren left in January 2005 when she herself became pregnant, and thereafter Jimenez supervised Johnson alone — with Linda Jones, the director of client living services, supervising Jimenez. (Id. at pp. 746, 748.) In May 2005 Johnson was promoted to community living specialist (counselor) on Jimenez’s recommendation, with Jones’s approval. Her duties included visiting clients’ residences, case management, arranging staffing coverage, and assisting clients with budgeting, bills, and appointments; she was told she could adjust her schedule as client needs required. (Id. at p. 748.)

The performance record was disputed. Johnson offered evidence that supervisors, coworkers, a client, and the client’s mother praised her work; that Jimenez never said anything negative in their weekly meetings; and that she received no written indication of unsatisfactory performance. (Johnson, supra, 173 Cal.App.4th at pp. 748–749.) Jimenez testified she found Johnson’s performance unsatisfactory on roughly a dozen occasions in the ten weeks after the promotion — paging problems, coverage lapses, scheduling difficulties — but admitted she never issued a written warning and never wrote the performance evaluation that employees with significant issues receive. (Id. at p. 749.)

The termination turned on where Johnson worked on Thursday, July 28, 2005. Johnson testified she was scheduled to see a client, Steve, at 9:00 a.m. and another client, Mery, at 2:00 p.m.; when Mery called that morning with a billing emergency, Johnson swapped the appointments and told Steve and his caregiver, Maya Davis, of the change. (Johnson, supra, 173 Cal.App.4th at p. 749.) Jimenez declared that she called Steve’s residence at about 1:00 p.m. and Johnson was not there, and that Johnson later told her she intended to work with Steve at 4:00 p.m. — a conversation Johnson denies. (Id. at pp. 749–750.) Johnson’s billing records claimed 4.5 hours at Steve’s apartment on July 28, and her timesheets showed work there from 4:00 to 8:00 p.m. (Id. at p. 750.) An on-call caregiver, Nnenna Okezie, worked Steve’s 5:00-to-11:00 p.m. shift that day. In a post-deposition declaration Okezie stated that no one besides herself worked at Steve’s that evening and that she never saw Johnson there — yet at her deposition she testified that a counselor called her to cover the shift, that the counselor met her at the apartment and showed her what to do for Steve, and that this counselor was named “Renee.” Confronted with Johnson at the deposition, Okezie said she had never seen her before and that the woman she met had a darker complexion. (Id. at pp. 750–751.) Johnson declared that she was the one who called Okezie, introduced herself as Renee, met her at the apartment, and left at 8:00 p.m.; Maya Davis declared that Johnson arrived at Steve’s at 4:00 p.m. and was still there — with Okezie — when Davis left at 5:00 p.m. (Id. at pp. 750–751.) Davis also recounted that when she told the employer’s attorney that Johnson had been there, Jimenez interjected, “That’s not what you told me over the phone,” to which Davis replied that she had “not talked to you about this at all.” (Id. at p. 751.) Debbie Miller, the onsite coordinator, told Jimenez she did not remember seeing Johnson on the 28th, though she saw Okezie. (Id. at p. 752.)

On Sunday, July 31, 2005, Johnson left Jimenez a voice mail saying she was ill — a message that, as the employer conceded for summary judgment purposes, disclosed that she needed medical attention relating to her pregnancy. (Johnson, supra, 173 Cal.App.4th at p. 752 & fn. 7.) On August 1 she reported that her doctor had put her on bed rest for a week; on August 8 she reported she was cleared to return; Jimenez responded by scheduling a meeting for August 9 at 1:00 p.m. (Id. at pp. 752–753.) At that meeting Jimenez fired her, saying only that “based on what has happened,” she did not feel Johnson was capable of handling the job — without mentioning the billing and time records, the pregnancy, or the week of sick leave. (Id. at p. 753.) At her deposition, Jimenez attributed the decision to having confirmed with Steve, Okezie, and Miller that Johnson had not been at Steve’s home on the evening of July 28; in her declaration she stated that she suggested termination and Jones agreed and instructed her to carry it out. (Ibid.)

Procedural history

Johnson’s operative complaint asserted FEHA causes of action for sex (pregnancy) and disability (pregnancy) discrimination under Government Code section 12940 and in violation of public policy, violation of California’s pregnancy disability leave statute (§ 12945), failure to take reasonable steps to prevent discrimination and retaliation (§ 12940), and wrongful termination in violation of public policy. (Johnson, supra, 173 Cal.App.4th at p. 746.) The employer moved for summary judgment on the theory that it conducted a good faith investigation and concluded Johnson had falsified a timesheet and billing record to collect unearned wages, and that this was the sole basis for the discharge. (Id. at pp. 747–748.) Johnson opposed with evidence that she had not falsified her records, that she was fired immediately after disclosing her pregnancy, and — through what the parties called “me too” declarations — that the employer had fired other women after they disclosed pregnancies. (Id. at p. 744 & fn. 2.)

The procedural handling of the employer’s evidentiary objections became an appellate issue in its own right. The reporter’s transcript showed no evidentiary rulings at the hearing; the January 16, 2007 minute order contained none, and instead implicitly accepted the other-firings evidence while finding it insufficient. Yet nearly two months later the court signed an attorney order stating that the objections to the declarations had been sustained — over Johnson’s filed objection that no express ruling had ever been made. (Johnson, supra, 173 Cal.App.4th at p. 745.) The Court of Appeal treated both the admissibility of the declarations and the existence of triable issues as the questions before it, reversed the summary judgment, and remanded, awarding Johnson her costs on appeal. (Id. at pp. 745, 768.)

Issue

Two questions. First, are declarations of an employer’s other former employees — describing their own pregnancy-related firings and mistreatment by the same supervisors at the same facility — admissible to oppose summary judgment, or are they inadmissible character/propensity evidence under Evidence Code section 1101, subdivision (a)? Second, did Johnson’s evidence, taken as a whole, constitute the “substantial evidence” of pretext or discriminatory animus that Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997 requires to defeat an employer’s properly supported summary judgment motion? (Johnson, supra, 173 Cal.App.4th at pp. 745, 755–756.)

Holding

Reasoning

The framework — including the canonical pretext formulation. The court restated the burden-shifting structure of Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248 and Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354–356, and the summary judgment overlay of Hersant: once the employer shows a nondiscriminatory reason, the employee “must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two.” (Johnson, supra, 173 Cal.App.4th at pp. 754–755, quoting Hersant v. Department of Social Services, supra, 57 Cal.App.4th at pp. 1004–1005.) It is not enough to show the decision was “unfair, unsound, wrong or mistaken”; the employee “‘must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence.”’” (Id. at p. 755, quoting Hersant, at p. 1005.) The employer’s falsification rationale satisfied its initial burden, and Johnson’s prima facie case included Jones’s deposition admission that “a pregnant employee poses safety concerns to herself and her clients.” (Id. at p. 756.)

What fails one at a time. The opinion’s first analytical movement is a disciplined catalogue of arguments that do not, standing alone, defeat summary judgment. The attack on the investigation — Jimenez questioned Okezie but never asked Johnson or Maya Davis — “comes under the rule that to defeat a summary judgment motion, a plaintiff must do more than raise an issue whether the employer’s action was unsound, unfair, wrong or mistaken.” (Johnson, supra, 173 Cal.App.4th at p. 756.) The contradictions that later emerged in Okezie’s and Miller’s accounts “came into being after the fact” and so did not negate the employer’s good faith belief when it fired her: “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.” (Id. at p. 757, quoting King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436.) Timing alone — being fired shortly after disclosing the pregnancy and taking leave — was likewise insufficient under King, though the court noted in a footnote that Ninth Circuit authority gives timing “more weight.” (Id. at p. 757 & fn. 10.) And the employer’s failure to tell Johnson why she was being fired could not alone raise the inference: under Guz, “one cannot reasonably draw an inference of intentional discrimination solely from evidence that an employer lied about its reasons,” because “[t]he pertinent statutes do not prohibit lying, they prohibit discrimination” — and if lying will not suffice by itself, “neither will a failure to give an employee any explanation at all.” (Id. at p. 758, quoting Guz, supra, 24 Cal.4th at p. 361.) Still, the court observed that Jimenez’s cryptic “based on what has happened” was “not inconsistent with plaintiff’s pregnancy condition, and it hints that perhaps Jimenez did not want to state the real reason why plaintiff was being fired.” (Ibid.)

The cumulative turn. Having rejected each item individually, the court asked “whether these matters, when taken together, do constitute sufficient evidence to demonstrate a triable issue of fact with respect to plaintiff’s contention that her pregnancy was the true cause of defendant’s decision to fire her. In our view, they do.” (Johnson, supra, 173 Cal.App.4th at pp. 758–759.) The court assembled the mosaic: “Plaintiff was fired the very day she returned from a short sick leave related to her pregnancy”; Jimenez gave no specific reason; Jones admitted concerns about pregnant employees caring for clients; Jimenez never asked Johnson about the disputed hours, and nothing suggested her time records had ever previously been a concern; Johnson goes by Renee, and Okezie testified that a woman named Renee met her at Steve’s home; and Johnson was never told her performance was unsatisfactory. (Id. at p. 759.) Citing Siegel v. Alpha Wire Corp. (3d Cir. 1990) 894 F.2d 50, 55, for the principle that “inconsistencies in performance evaluations prior and subsequent to an employee’s termination may support an inference of pretext,” the court contrasted Johnson’s promotion and praise with Jimenez’s testimony that her work had declined. (Ibid.)

The “me too” declarations: what they said. The court held the challenged declarations independently “constitute substantial evidence requiring reversal.” (Johnson, supra, 173 Cal.App.4th at p. 759.) Melissa Wyatt declared she was present at a January 2005 meeting where Jimenez and Jones discussed a pregnant employee, Diana Olivas: they “wanted to fire Olivas because she was pregnant and they were worried about being liable in case she was injured, but they could not do that because it was illegal” — so they “discussed reasons they could use to fire her,” settling on the claim that Olivas had been too rough with the client Steve after nicking him while shaving him. (Id. at p. 761.) Olivas declared she was six months pregnant when she inquired about maternity leave and was fired on that stated ground. (Ibid.) Wyatt further declared that when Jones and Sandgren learned another employee, Denise Wooten, was pregnant, they “created accusations about Denise in order to terminate her”; Wooten declared she was fired by phone message a week or two after her pregnancy became known. (Ibid.) Wendy Nash declared she was fired within two days of her pregnancy reaching Sandgren — and that “Sandgren told her she was being fired because she was pregnant.” (Ibid.) The court flagged the pattern’s tightness in a footnote: all four women — Johnson, Olivas, Wooten, and Nash — worked at the same Santa Monica facility under the same three supervisors (Jones, Sandgren, and Jimenez) during 2004 and 2005, and the short interval between disclosure and firing “could reasonably be used by a trier of fact as evidence that knowledge of the pregnancies caused the supervisors to fire the employees.” (Id. at p. 761, fn. 14.) A fifth declarant, Sandra Baeza, described Jimenez turning hostile after Baeza said she was trying to become pregnant — including a timecard-lying accusation — and identified employees accused of dishonesty who were not fired; “[t]hus, there is evidence that defendant had tolerated, at least to a certain extent, dishonesty.” (Id. at p. 762.) The record also contained Jimenez’s remarks that an employee trying to conceive “should have a drink instead” and “Why would you want to become pregnant?” — which the employer dismissed as “stray remarks” under Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809–810, but which the court held were “in the mix of evidence to be presented by plaintiff to the trier of fact, and the trier of fact will determine their importance.” (Id. at p. 759, fn. 12.)

Why the declarations are admissible: intent and motive, not propensity. The employer’s objections rested on Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, which upheld exclusion of other-victim harassment evidence offered to show the defendant “did the same thing before” — propensity reasoning barred by Evidence Code section 1101, subdivision (a). (Johnson, supra, 173 Cal.App.4th at p. 760.) But Beyda “did not address whether the evidence could be admitted under the provisions of subdivision (b),” which permits other-acts evidence to prove motive and intent. (Ibid.) The court then marshaled the federal line under the analogous rule 404(b): Obrey v. Johnson (9th Cir. 2005) 400 F.3d 691 (anecdotal accounts of other employees’ discrimination admissible in a pattern-or-practice case despite the “minitrials” they entail); Estes v. Dick Smith Ford, Inc. (8th Cir. 1988) 856 F.2d 1097, which reversed for exclusion of climate-of-bias evidence, warning that wholesale exclusion “can be especially damaging in employment discrimination cases, in which plaintiffs must face the difficult task of persuading the fact-finder to disbelieve an employer’s account of its own motives,” and that circumstantial proof must not be “crippled by evidentiary rulings that keep out probative evidence because of crabbed notions of relevance” — precisely because “it is so easy to concoct a plausible reason” for firing a non-superlative worker (id. at pp. 763–764, quoting Estes, at p. 1103, quoting Riordan v. Kempiners (7th Cir. 1987) 831 F.2d 690); and Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475, 1479: “It is clear that an employer’s conduct tending to demonstrate hostility towards a certain group is both relevant and admissible where the employer’s general hostility towards that group is the true reason behind firing an employee who is a member of that group.” (Id. at p. 765.) Shattuck, Spulak, and California’s own Bihun rounded out the survey — “[a]s a general rule, the testimony of other employees about their treatment by the defendant is relevant to the issue of the employer’s discriminatory intent.” (Id. at p. 766, quoting Spulak v. K Mart Corp. (10th Cir. 1990) 894 F.2d 1150, 1156.)

Sprint v. Mendelsohn confirms — and this record exceeds its threshold. The employer read the United States Supreme Court’s then-recent decision in Sprint/United Management Co. v. Mendelsohn (2008) 552 U.S. 379 as rejecting me-too evidence. The court disagreed: Sprint held only that relevance “is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case” — “there was no wholesale rejection of such ‘me too’ evidence.” (Johnson, supra, 173 Cal.App.4th at pp. 766–767.) And where Sprint involved declarants who had not shared the plaintiff’s department or supervisors, this record was categorically stronger: “here we can say as a matter of law that the ‘me too’ evidence presented by plaintiff in the instant case is per se admissible under both relevance and Evidence Code section 352 standards,” because the evidence “sets out factual scenarios related by former employees of defendant that are sufficiently similar to the one presented by plaintiff,” with probative value that “clearly outweighs any prejudice.” (Id. at p. 767.) “Dissimilarities between the facts related in the other employees’ declarations and the facts asserted by plaintiff with regard to her own case go to the weight of the evidence, not its admissibility.” (Ibid.)

Significance

Johnson is California’s leading published authority on me-too evidence at the summary judgment stage, and it makes two distinct doctrinal contributions. The first is evidentiary: it reconciles Beyda’s propensity bar with Evidence Code section 1101, subdivision (b), holding that other employees’ accounts of similar discrimination are admissible to prove the employer’s motive and intent — the very thing a pretext case must establish — and it domesticates the federal rule 404(b) line (Obrey, Estes, Heyne, Shattuck, Spulak) into California summary judgment practice. (Johnson, supra, 173 Cal.App.4th at pp. 760–767.) Its reading of Sprint is equally important: relevance is a sliding scale keyed to how closely the declarants’ circumstances track the plaintiff’s — same facility, same supervisors, same protected trait, same era — and at the top of that scale the evidence is admissible “as a matter of law.” (Id. at p. 767.)

The second contribution is the cumulative-evidence methodology. The opinion is unusually candid in holding each strand insufficient alone — timing (King), honest-belief (King), unexplained firings (Guz) — and then holding the woven strands sufficient together. (Johnson, supra, 173 Cal.App.4th at pp. 756–759.) That two-step gives plaintiffs a citable answer to the defense tactic of attacking each item of pretext evidence seriatim, and it gives trial courts a template for aggregating: immediate timing plus concealment of the reason plus a skewed investigation plus contradicted premises plus decisionmaker admissions. The opinion also preserves, rather than disturbs, the employer-protective rules it recites — Johnson does not question the honest-belief doctrine or the rule that falsity alone is not discrimination; it holds only that this record contained more. Finally, the court’s treatment of the “stray remarks” objection — remarks go “in the mix” for the jury (id. at p. 759, fn. 12) — anticipated the skepticism toward mechanical stray-remarks screening later expressed by the California Supreme Court in Reid v. Google, Inc. (2010) 50 Cal.4th 512, discussed elsewhere in this library: see Reid v. Google.

Key quotes

“‘[T]he [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence.”’” (Johnson, supra, 173 Cal.App.4th at p. 755, quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)

“[T]here remains the question whether these matters, when taken together, do constitute sufficient evidence to demonstrate a triable issue of fact with respect to plaintiff’s contention that her pregnancy was the true cause of defendant’s decision to fire her. In our view, they do.” (Johnson, supra, 173 Cal.App.4th at pp. 758–759.)

“[H]ere we can say as a matter of law that the ‘me too’ evidence presented by plaintiff in the instant case is per se admissible under both relevance and Evidence Code section 352 standards.” (Johnson, supra, 173 Cal.App.4th at p. 767.)

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Practice pointer

Open questions

Johnson declares this record “per se admissible” because the declarants shared the plaintiff’s facility, supervisors, and protected trait (Johnson, supra, 173 Cal.App.4th at p. 767), but it does not decide how far down Sprint’s sliding scale admissibility extends — me-too evidence from different supervisors, different facilities, or different decisionmaking chains remains governed by the “fact based” inquiry of Sprint/United Management Co. v. Mendelsohn (2008) 552 U.S. 379, as the court itself acknowledged. (Id. at pp. 766–767.) The court also left the timing doctrine in a noted state of tension: California law holds timing alone insufficient, while Ninth Circuit cases treat proximity as potentially “strong evidence,” a divergence the court flagged without resolving. (Id. at p. 757, fn. 10.) The opinion expressly declined to treat Jimenez’s pregnancy remarks as “per se evidence of a discriminatory animus,” leaving their force to the trier of fact “because the context of the comments is not known.” (Id. at p. 759, fn. 12.) And because Johnson was not suing on an implied contract, the court had no occasion to decide what an adequate pre-termination investigation requires — it noted only that she could not import the good-cause investigation standards of Cotran into a discrimination claim. (Id. at p. 758, fn. 11.)