O'Quinn v. CHI Mgmt.

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BRIANNA O'QUINN, Plaintiff and Appellant, v. CHI MANAGEMENT, INC. et al., Defendants and Respondents

F083461

California Court of Appeals, Fifth District

March 28, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Stanislaus County No. CV-19-000699. Sonny S. Sandhu, Judge.

Aegis Law Firm, Kashif Haque and Ali S. Carlsen for Plaintiff and Appellant.

Klinedinst PC, Lindsey N. Casillas, Robert M. Shaughnessy and Raja A. Hafed for Defendants and Respondents.

OPINION

FRANSON, ACTING P. J.

Plaintiff sued defendants, alleging they were her employers, they violated various provisions of the California Fair Employment and Housing Act (FEHA; Gov. Code § 12900 et seq.),^[1] and they wrongfully terminated her employment in violation of public policy. She alleged she was demoted for complaining of sexual harassment, and her employment was terminated after she disclosed she was pregnant and needed time off due to a threatened miscarriage. Defendant, CHI Management, Inc. (CHIMI), moved for summary judgment or summary adjudication of each cause of action alleged. Defendant, Community Hospice, Inc. (Hospice) separately moved for summary judgment on the ground it was not plaintiff's employer; alternatively, it joined in CHIMI's motion.

The trial court granted CHIMI's motion for summary judgment; it granted summary judgment in favor of Hospice on the basis of its joinder in that motion. It declined to rule on Hospice's separate motion.

We conclude summary judgment on CHIMI's motion must be reversed, because triable issues of material fact remain as to four of plaintiff's causes of action. Further, Hospice's separate motion did not establish it is entitled to judgment as a matter of law. We therefore reverse the summary judgment and the order grant ing defendants' joint motion, with instructions to enter a new order granting summary adjudication only of plaintiff's third, fourth, and fifth causes of action.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed a complaint against CHIMI and Hospice alleging causes of action arising out of her employment with defendants and the termination of that employment. She alleged causes of action for (1) discrimination based on sex and pregnancy; (2) discrimination based on disability; (3) failure to reasonably accommodate her disability; (4) failure to engage in the interactive process in order to accommodate her disability; (5) retaliation; (6) failure to prevent discrimination and retaliation; and (7) wrongful termination in violation of public policy. CHIMI filed a motion for summary judgment, challenging plaintiff's ability to establish each cause of action. Hospice filed its own motion for summary judgment, asserting it could not be held liable on the causes of action alleged because it was not plaintiff's employer. Additionally, Hospice joined in CHIMI's motion.

The moving papers presented the following facts. Hospice is a nonprofit organization that provides medical, nursing, emotional, spiritual, and educational support to persons coping with grief or a life-threatening illness. CHIMI is a nonprofit organization that operates a chain of local thrift stores that support Hospice. In late 2013, plaintiff began working at one of the thrift stores as a retail clerk. In July 2014, plaintiff was hired as assistant manager of the Oakdale thrift store. She performed well and her supervisor, Donnette Reel, encouraged her to apply for a store manager position when one became available. In September 2016, plaintiff was promoted to manager of the Manteca store. Her supervisor was John Renner.

While plaintiff was the store manager, the Manteca store was not profitable. It was cluttered, unorganized, and dirty; plaintiff seemed unable to build comradery and lead her team. After being counseled about these problems, plaintiff was given a written performance correction notice in July 2017, which advised her of these problems and included a performance improvement plan. Concerns about plaintiff's performance continued, and she was given a final written performance correction notice on October 12, 2017. The problems remained and, on December 14, 2017, plaintiff was demoted to senior retail clerk at the Oakdale store. Subsequently, Reel, the Oakdale store manager, took on the day-to-day management of the Manteca store, while the Oakdale assistant manager, Jennifer Rauch, engaged in the day-to-day management of the Oakdale store where plaintiff was working.

Plaintiff was scheduled to begin working at the Oakdale store as a senior retail clerk on Monday, December 18, 2017. Each day that week, plaintiff punched in late, left early, took an extended lunch, or did not work at all. She then had two weeks off for a scheduled vacation. She was to return to work on Sunday, January 7, 2018.

On January 6, 2018, plaintiff texted Reel, informing Reel that she (plaintiff) was pregnant. On January 8, 2018, plaintiff told Rauch, that she was pregnant; plaintiff asked that she not be required to lift heavy items. Rauch complied with this request.

On January 7 and 8, 2018, plaintiff arrived late for her shift; she was not scheduled to work January 9 and 10. On January 11 and 12, she was scheduled to work, but did not. On January 13, 2018, Reel gave plaintiff a written performance correction notice describing her absences and tardiness; it established a goal that plaintiff "have no further instances of absenteeism, tardiness and she is to work her entire scheduled shift over the next 6 months." The notice also stated: "Any further tardiness beyond 15 minutes, or failure to work her entire scheduled shift over the next 6 months will result in termination of employment, unless the time off is protected under law." On January 13, 2018, when Reel met with plaintiff and gave her the performance correction notice, Reel asked what was going on or if there was anything she could do to help; plaintiff responded that there was nothing Reel could do to help her.

Plaintiff did not work her scheduled shifts on January 14, 15, 16, 19, or 20, 2018. At that time, defendants' "ATTENDANCE AND ABSENTEEISM" policy provided that employees were expected to be punctual and regular in attendance; if sick or unable to report, they were required to make direct contact with their supervisor, and this notification "should occur at least two hours before the beginning of the workday or earlier, if possible."

On January 14, 2018, plaintiff called in 40 minutes after her shift started to say she would not be at work. On January 15, 2018, plaintiff texted Rauch an hour and a half before her scheduled shift, stating she was at Kaiser with her son and included a photo of an apparently injured toe. Rauch texted back, asking if plaintiff was still going to come in for her shift, but received no reply. On January 16, 2018, prior to her shift, plaintiff texted Rauch, "I won't be in today _ I'll be at the Dr. I'll have a note."

On January 19 and 20, 2018, plaintiff did not work and did not contact anyone at CHIMI to inform them that she would not work her scheduled shifts. On January 20, after plaintiff's shift was over, she texted Rauch, stating: "Sorry I have been so sick it's just horrible. Not sure if it's the flu or just pregnancy. But I can barely get out of bed. I have an appt. To see my Dr. On Wednesday. And will let you know what he says." Plaintiff did not work on Sunday, January 21, 2018. In the evening of that day, plaintiff sent an e-mail to Rauch, stating that, shortly after sending her January 20 text, she rushed herself to the emergency room "for heavy bleeding and clots"; she stated the doctor called it a threatened miscarriage and "ordered me to stay home and take things very easy until I go to my o.b. appt on Wednesday the 24th where hopefully I will find out more. I will keep you posted."

On January 22, 2018, Renner, Jennifer Dunn, CHIMI's director of human resources, and DeSha McLeod, president and chief executive officer of both CHIMI and Hospice, decided to terminate plaintiff's employment; in an e-mail that indicates it was sent at 9:47 that morning, Dunn advised plaintiff she had abandoned her job due to failing to work her shifts and failing to contact anyone to say she would be out. The policy manual provided that "[absenteeism for more than two consecutive days without notification (no call/no show) will be considered a voluntary resignation." Rauch did not have access to her work e-mails except while at work, and did not see plaintiff's January 21 e-mail until around noon on Monday, January 22, 2018. She forwarded it to Renner and Dunn at 12:10 p.m. that day.

The trial court allowed Hospice to join in CHIMI's motion for summary judgment, then granted the motion of both defendants in its entirety. It did not address the merits of Hospice's separate motion. The trial court entered judgment in defendants' favor and plaintiff appeals.

DISCUSSION

I. STANDARD OF REVIEW

Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) "Since summary judgment involves pure matters of law, we review a grant of summary judgment de novo. [Citations.] In undertaking our independent review of the evidence submitted, we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue." (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)

We consider all the...