Trop v. Sony Pictures Entertainment, Inc.

Facts

The governing statute is the FEHA’s core prohibition: an employer may not terminate an employee because of her sex (Gov. Code, § 12940, subd. (a)), and “sex” within the meaning of the FEHA includes “pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.” (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144, quoting Gov. Code, former § 12926, subd. (p).) FEHA provisions may also supply the policy basis for a common law wrongful-termination claim. (Ibid., citing Phillips v. St. Mary Regional Medical Center (2002) 96 Cal.App.4th 218, 227.)

Anne Trop worked as the assistant to producer-director Betty Thomas at Tall Trees Productions, a general partnership between two loan-out corporations that had a three-year “first look” agreement with Columbia Pictures, a Sony division; Sony paid Tall Trees’s overhead, including the salaries of six staff employees plus an assistant for Thomas. (Trop, supra, 129 Cal.App.4th at p. 1138.) Thomas hired Trop in May 2001 — Trop was not her first choice — to replace an assistant whose performance had disappointed her, and Trop signed a Sony employment application acknowledging at-will status. (Ibid.)

In June 2002 Trop began trying to become pregnant, a fact she shared that summer only with producer Elisabeth Peery, who told no one. (Trop, supra, 129 Cal.App.4th at p. 1138.) In September 2002 she told Lisa Sutton and Amy Lafayette — herbal practitioners who were good friends of Thomas and her producing partner Jenno Topping — that she was trying to conceive, and asked them not to “tell anyone at Tall Trees about this.” (Ibid.) The following week Topping remarked to Trop, “You had a good reading with [Sutton] and [Lafayette],” said the future looked good, and “made this belly thing” — leaving Trop shocked and wondering whether her confidence had been betrayed. (Ibid.)

By mid-October 2002, work on the film “I Spy” had ended, and, according to Thomas, Trop’s performance began slipping: mistakes with phone numbers and incoming calls, declining attitude and enthusiasm, and a “very cavalier” response when confronted. Trop admitted at deposition to recording wrong numbers on four phone messages and three frequently-called lists, though she said the errors spanned her whole tenure. (Trop, supra, 129 Cal.App.4th at p. 1139.) At the end of October, when Trop asked for time off to have a fibroid removed, Thomas checked her calendar, confirmed the date — then asked, “What are you trying to do, get pregnant?” Trop answered, “Trying.” Thomas “sarcastically” retorted, “Well, good luck.” (Ibid.) In early November Thomas approved, but was “very annoyed” by, Trop’s three-and-a-half-week England vacation set for December 14, 2002, through January 6, 2003 — squarely across preproduction on “Surviving Christmas.” (Ibid.) According to Thomas, by the beginning of November 2002 her frustration had reached the point of decision: she resolved to fire Trop, discussed a replacement with the company’s business manager Tony Peyrot, her agent, and Topping, and had Peyrot search for candidates; on December 10, 2002, Peyrot faxed a candidate’s résumé to Tall Trees — to Trop’s own attention. (Ibid.)

On December 13, 2002, Trop took a home pregnancy test that read “light pink” or “light positive”; she was “beyond thrilled” but “not sure.” (Trop, supra, 129 Cal.App.4th at p. 1140.) That night, at the company Christmas party at Thomas’s home, Trop played with Topping’s infant daughter and — in Trop’s account, in Thomas’s presence — said, “It looks like I get to have one of my own.” Thomas responded, “Not while you are working for me.” Trop “did not amplify upon that exchange.” (Ibid.) Later that evening she told Sutton and Lafayette the test was “a sort of a positive”; they understood it was confidential and told no one. (Ibid.) Trop left for England the next day, returned two or three days late because of weather, confirmed the pregnancy with her doctor, and noticed Thomas had gone cold — declining, for the first time in Trop’s experience with directors, to bring her assistant on location to Chicago. (Ibid.) Trop told Peery of the pregnancy without asking for secrecy; Peery still told no one. (Id. at pp. 1140–1141.) In mid-January, after a spotting scare, Trop tearfully told receptionist Vivian Cao, who was “stunned” and honored her request for confidence. (Id. at p. 1141.) After a second Chicago trip, Thomas returned to a series of “my bad” voicemails from Trop cataloguing her own mistakes, which “reinforced Thomas’s belief that Trop was making her work life more difficult.” (Ibid.)

On January 28, 2003, Thomas fired Trop, giving three reasons: she needed “somebody here who wants to be here and who doesn’t have a life” (confirming she meant the vacation); a phone message recorded with a wrong number; and a call from the head of 20th Century-Fox put through during a writers’ meeting at exactly the wrong moment. (Trop, supra, 129 Cal.App.4th at p. 1141.) What happened next was sharply disputed. In Trop’s version, when she said Thomas knew she was pregnant, Thomas went “crazy”: “What were you thinking? How could you possibly be my assistant and be pregnant? How did you think that ever was going to work?” — and when Trop said, “Women get pregnant every day,” Thomas answered, “Well, that was never going to happen here. It would never happen here.” (Id. at pp. 1141–1142.) In Thomas’s version, Trop tearfully disclosed the pregnancy only after the firing, Thomas was shocked, and she offered a good recommendation and help finding another job; “prior to that meeting, neither Trop nor anyone else had told her that Trop was pregnant or trying to become pregnant.” (Id. at p. 1142.) Sutton, Lafayette, Peery, and Cao all declared they had never discussed Trop’s pregnancy or conception efforts with Thomas, Topping, or any other Tall Trees employee before the termination. (Id. at pp. 1142–1143.)

Procedural history

Trop sued Sony Pictures Entertainment, Inc. and Tall Trees on seven causes of action, then dismissed the first five, leaving the sixth (sexual discrimination based on pregnancy under FEHA) and seventh (wrongful termination in violation of public policy based on pregnancy). (Trop, supra, 129 Cal.App.4th at p. 1143.) Defendants moved for summary adjudication on two grounds: that Trop could not establish a prima facie case because they did not know she was pregnant when she was fired and her work was unsatisfactory; and that, in any event, the undisputed evidence showed the at-will employee was fired for inadequate work, not pregnancy. (Id. at pp. 1137–1138.) The trial court granted the motion, “finding that Thomas fired Trop because she was dissatisfied with Trop’s work performance and Thomas did not know that Trop was pregnant at the time she decided to fire Trop,” and entered judgment for defendants. (Id. at pp. 1137, 1143.) The Court of Appeal affirmed two to one, awarding defendants costs on appeal; Justice Mosk dissented. (Id. at p. 1150.) The Supreme Court denied review on August 24, 2005. (Id. at p. 1152.)

Issue

Three questions structured the appeal. First, can a plaintiff make a prima facie case of pregnancy discrimination without evidence that the employer knew she was pregnant when it decided to fire her — and did Trop’s oblique disclosures (the fibroid exchange, the Christmas-party remark) raise a triable issue of that knowledge? (Trop, supra, 129 Cal.App.4th at pp. 1145–1146.) Second, did Thomas’s statements — “Not while you are working for me” at the party, and the post-termination “How could you possibly be my assistant and be pregnant?” outburst — constitute direct evidence of discrimination rendering the McDonnell Douglas burden-shifting framework inapplicable? (Id. at pp. 1146–1149.) Third, applying that framework, did the employer’s poor-performance showing carry its burden, and did Trop raise a triable issue of pretext? (Id. at pp. 1149–1150.) The scope of the case was itself limited by the pleadings: Trop pleaded only that she “was a pregnant woman terminated from her employment because of her pregnancy,” so the distinct theory of discrimination against a woman trying to become pregnant was not before the court. (Id. at p. 1137, fn. 1.)

Holding

Reasoning

The summary judgment lens: a drastic procedure, strictly policed. The majority began from the standard framing — summary judgment lies only where the moving party establishes judgment as a matter of law (Code Civ. Proc., § 437c, subd. (c)), reviewed independently on appeal — but paired Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, with the older admonition that the summary judgment “procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods in the determination of issues of fact.” (Trop, supra, 129 Cal.App.4th at p. 1143, quoting Eagle Oil & Ref. Co. v. Prentice (1942) 19 Cal.2d 553, 556.) The moving party’s declarations are strictly construed, the opponent’s liberally, and all doubts resolved against the motion; the court “focuses on finding issues of fact; it does not resolve them.” (Id. at pp. 1143–1144.)

The doctrinal map: McDonnell Douglas and its direct-evidence off-ramp. Following Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, the court restated the three-stage test drawn from McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792: prima facie case, legitimate nondiscriminatory reason, pretext. (Trop, supra, 129 Cal.App.4th at p. 1144.) But the framework exists because “direct evidence of intentional discrimination is rare”; where a plaintiff has direct evidence, the test is “inapplicable” (Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121), and — quoting Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67–68 — “the defendant can avoid liability only by proving the plaintiff would have been subjected to the same employment decision without reference to the unlawful factor.” (Id. at pp. 1144–1145.) Direct evidence “is evidence which proves a fact without inference or presumption.” (Id. at p. 1145.)

Step one: knowledge is an element of the pregnancy prima facie case. The dispositive move was importing the Third Circuit’s rule from Geraci: because pregnancy — unlike race or sex — is not always apparent, a plaintiff whose pregnancy “is not apparent” and who “has not disclosed it to her employer … must allege knowledge and present, as part of her prima facie case, evidence from which a rational jury could infer that the employer knew that she was pregnant.” (Trop, supra, 129 Cal.App.4th at p. 1145, quoting Geraci, supra, 82 F.3d at p. 581.) The court quoted Geraci’s application at length — six sworn-to-secrecy confidants, managers’ declarations disclaiming knowledge, and a plaintiff asking for trial “on the sheer speculation” that a confidence was violated and managers lied — and found the facts “remarkably similar.” (Id. at pp. 1145–1146.) Trop presented no evidence she was visibly pregnant; she never told Thomas; everyone she did tell either was asked to keep the secret or assumed it, and all denied telling Thomas. The fibroid conversation and hopes of conceiving “fall far short of establishing that Thomas was aware of Trop’s pregnancy” — indeed, on December 13 Trop herself was only “hopeful” but “not sure” that she was pregnant (id. at p. 1140) — and the Christmas-party remark was “so ambiguous as to be insufficient, as a matter of law, to establish that Thomas knew Trop was pregnant.” (Id. at p. 1146.) Because Trop told Thomas she was pregnant only after being told she was fired, the prima facie case failed at the threshold. (Ibid.)

No direct evidence: the temporal-and-causal filter for isolated remarks. The majority then assumed, arguendo, a prima facie case, and confronted Trop’s contention that four statements were direct evidence: the “doesn’t have a life” remark; the post-firing “How could you possibly be my assistant and be pregnant?” series; the “It would never happen here” exchange; and the party retort “Not while you are working for me.” (Trop, supra, 129 Cal.App.4th at pp. 1146–1147.) Adopting the Seventh Circuit’s approach in Kennedy v. Schoenberg, Fisher & Newman, Ltd. (7th Cir. 1998) 140 F.3d 716, 723 — where even a supervisor’s repeated “if you were my wife, I would not want you working after having children” was held not direct evidence — the court reasoned that direct evidence in pregnancy cases “generally is in the form of an admission by a supervisor or decision maker that the employee was suspended because she was pregnant,” and that “isolated comments must be contemporaneous with the discharge or causally related to the discharge decision making process.” (Id. at p. 1147.) Geier v. Medtronic, Inc. (7th Cir. 1996) 99 F.3d 238, 242 — the “[h]ave all the kids you would like” case — supplied the same filter. (Id. at p. 1148.) Applied here: the party remark was “made in a casual conversation at a Christmas party more than one month before Trop was fired,” “unrelated to Trop’s work performance,” with “no evidence of a causal relationship between Thomas’s statement and the decision to terminate”; and the post-firing comments “do not show that Thomas knew Trop was pregnant until after Trop was terminated.” (Id. at pp. 1148–1149.) Trop had also admitted Thomas gave three termination reasons — lost messages, lack of interest, the ill-timed call — “none of which pertain to Trop’s pregnancy.” (Id. at p. 1149.)

The alternative McDonnell Douglas analysis: the employer’s showing and the missing rebuttal. Proceeding through the framework “drawing largely on the application of that test as set forth in Guz,” the court noted Trop’s at-will status under Labor Code section 2922 (citing Guz, supra, 24 Cal.4th at p. 335, and Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680), and framed the opposition burden from Guz: “there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s action.” (Trop, supra, 129 Cal.App.4th at p. 1149, quoting Guz, at p. 361, citing St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 510–520.) Defendants “satisfied the second step of the McDonnell Douglas formula by presenting competent, credible, and admissible evidence of nondiscriminatory reasons,” at which point the presumption of discrimination “‘“simply drops out of the picture.”’” (Ibid., quoting Morgan, supra, 88 Cal.App.4th at p. 68.) The reasons were “creditable on their face — her job performance did not meet Thomas’s demanding standards”: Trop did not dispute the mishandled messages, the extended vacation in a busy period, or the late return, and defendants’ evidence showed Thomas decided in November 2002 to replace her — soliciting résumés — before Trop herself knew she was pregnant. (Ibid.) At step three, Trop “produced no evidence to rebut defendants’ showing that: (1) Thomas made the decision to fire Trop before Trop learned she was pregnant; (2) Trop’s job performance was unsatisfactory for Thomas’s needs; and (3) Thomas did not know of Trop’s pregnancy until after the firing.” (Id. at p. 1150.)

The dissent: every link in that chain was for a jury. Justice Mosk would have reversed on three independent grounds. Direct evidence: Thomas’s statements at the termination meeting — “How could you possibly be my assistant and be pregnant?” and, in response to “Women get pregnant every day,” “Well, that was never going to happen here. It would never happen here” — “disclose[] a discriminatory bias against pregnant employees that was ‘contemporaneous’ with Trop’s termination” under the very Kennedy/Geier standard the majority invoked, making McDonnell Douglas inapplicable. (Trop, supra, 129 Cal.App.4th at p. 1150 (dis. opn. of Mosk, J.).) Knowledge: Trop told Thomas in October she was trying to conceive and suggested in December that she was pregnant; that evidence “reasonably supports the conclusion” that Thomas knew — “or at least that Trop believed she was pregnant” — and at summary judgment all inferences run against the moving party. (Id. at p. 1151.) Timing and pretext: the claimed November decision was “equivocal”: Thomas nonetheless approved an unusually long vacation at her busiest time, did not fire Trop for nearly three months, and then cited as a firing reason the late vacation return — an event that postdated the decision she claimed to have already made. (Ibid.) Even if not direct evidence, the termination-meeting statements “constitute evidence of a ‘discriminatory animus’ against pregnant employees and establish pretext.” (Ibid., citing Morgan, supra, 88 Cal.App.4th at p. 75.) The dissent closed with candor: “Trop’s case may not appear strong. Nevertheless, I believe she has submitted enough evidence to have her case tried by a finder of fact — judge or jury.” (Id. at p. 1152 (dis. opn. of Mosk, J.).)

Significance

Trop is the California authority most often cited for the proposition that employer knowledge is part of the pregnancy-discrimination prima facie case where the pregnancy is neither apparent nor disclosed. By adopting Geraci, the court gave FEHA defendants a threshold, element-negating path to summary judgment that does not depend on proving a legitimate reason at all: no knowledge, no inference of causation, no case. (Trop, supra, 129 Cal.App.4th at pp. 1145–1146.) The corollary matters just as much for plaintiffs: secrecy has a litigation price. A plaintiff who confides only in sworn-to-secrecy friends, and whose confidants uniformly deny disclosure, cannot reach a jury on “sheer speculation” that someone broke a promise. (Id. at pp. 1145–1146.)

The decision is equally important — and most contested — for its treatment of the direct-evidence path around McDonnell Douglas. The framework is a tool for proving discrimination circumstantially; a decisionmaker’s admission makes it unnecessary. (Trop, supra, 129 Cal.App.4th at pp. 1144–1145.) But Trop’s majority, borrowing the Seventh Circuit’s temporal-and-causal filter, classified even “Not while you are working for me” — said to a pregnant employee musing about having a baby — as too casual, too remote, and too disconnected from the termination process to qualify. (Id. at p. 1148.) Justice Mosk’s dissent shows how thin the line is: the same federal standard, applied to the same record, yielded direct evidence “contemporaneous” with the discharge. (Id. at p. 1150 (dis. opn. of Mosk, J.).) That restrictive attitude toward remark evidence foreshadowed the debate the Supreme Court would take up five years later in Reid v. Google, Inc. (2010) 50 Cal.4th 512, which addressed the “stray remarks” doctrine on summary judgment; practitioners citing Trop’s remarks analysis today must read it alongside Reid. Finally, the opinion’s alternative holding is a workmanlike model of the employer’s second-step showing — “competent, credible, and admissible evidence” of facially creditable reasons, anchored by a replacement search that predated the protected status (id. at p. 1149) — and its footnote 1 preserves, without deciding, the distinct theory that firing a woman for trying to become pregnant is itself actionable. (Id. at p. 1137, fn. 1, citing Kocak v. Community Health Partners of Ohio, Inc. (6th Cir. 2005) 400 F.3d 466, 470.)

Key quotes

“An employee cannot make out a prima facie case of discrimination based on pregnancy under FEHA in the absence of evidence the employer knew the employee was pregnant.” (Trop, supra, 129 Cal.App.4th at p. 1145.)

“Trop’s statement to Thomas at the December 2002 Christmas party (‘It looks like I get to have one of these,’ referring to a baby) is so ambiguous as to be insufficient, as a matter of law, to establish that Thomas knew Trop was pregnant.” (Trop, supra, 129 Cal.App.4th at p. 1146.)

“Trop’s case may not appear strong. Nevertheless, I believe she has submitted enough evidence to have her case tried by a finder of fact — judge or jury.” (Trop, supra, 129 Cal.App.4th at p. 1152 (dis. opn. of Mosk, J.).)

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Practice pointer

Open questions

Trop expressly left open the potential-pregnancy theory: the court acknowledged that “[a] cause of action may be based upon an adverse employment action directed at a woman who is trying to become pregnant,” but held the issue “is not before this court” because it was unpleaded — so whether FEHA reaches discrimination against employees attempting to conceive remained undecided in California. (Trop, supra, 129 Cal.App.4th at p. 1137, fn. 1.) The opinion also does not resolve how much disclosure is enough: it holds a “sort of a positive” home test confided to friends, plus an oblique party remark, insufficient “as a matter of law” (id. at p. 1146), but the majority-dissent split over the October “Trying” exchange and the December remark shows the line between ambiguity and inferable knowledge is anything but fixed. (Id. at p. 1151 (dis. opn. of Mosk, J.).) Nor does the majority address the dissent’s structural point — that an employer’s “decision date” defense is only as good as its internal consistency with the reasons later given (ibid.) — a theory that remains available to plaintiffs distinguishing Trop. Finally, because the majority resolved the direct-evidence question by importing Kennedy and Geier wholesale, the opinion invites the question later litigated statewide: how far California may go in discounting discriminatory remarks at the summary judgment stage, the subject the Supreme Court reached in Reid v. Google, Inc. (2010) 50 Cal.4th 512.