Amber Gorbett vs. Spireon, Inc.

Reply to Motion

Cal. Super. - 4th Dist.November 9, 2016

H S W N o C 0 J d O N W n 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 LAW OFFICES OF MARY E. LYNCH MARY E. LYNCH, Cal. Bar No. 172451 100 Spectrum Center Drive, Suite 420 Irvine, California 92612 Telephone: 949-398-7500 mary@marylynchlaw.com Attorneys for Defendant SPIREON, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER AMBER GORBETT, Plaintiff, SPIREON, INC., and DOES1-20, INCLUSIVE, Defendants. Case No. 30-2016-00885891 Assigned to: The Hon. Theodore Howard Dept.: C18 Complaint Filed: November 9, 2016 Trial Date: February 26, 2018 SPIREON,INC.’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES. Date: January 25,2018 Time: 1:30 p.m. Place: Dept. C18 Central Justice Center 700 Civic Center Drive West Santa Ana, CA 92701 Hearing Reservation No.: 72581690 [Filed Concurrently with Declaration ofMary E. Lynch; Objections to Additional Material Facts; and Objections to Plaintiff’s Evidence.] Spireon, Inc.’s Reply in Support ofMSJ/MSA O O 0 N N O N v n h r W N N O N N N N N N N N e m e m e m e m e e e m e m e m e e 0 N N O N W n B R W N = O o O V O N N N R W N D = O Table of Contents L INTRODUCTION .....ooiiiiiitiiiiieinenreieeesesssneeesessessesssesstssssssssstessessssssssstonssnsonsessessssssessessessenens 1 II ARGUMENT...esteraseseset sess asses st sas esas sae me esas b esas bass abe b babes asus nsansnsanesarnabanse 1 A. Gorbett Fails To Raise A Disputed Issue OfMaterial Fact Regarding Spireon’s Legitimate Reason for Her Layoff. ........couiinetsneersbeebssnes snesans 1 1. No adequate disputes as to the material facts regarding Gorbett’s pre-pregnancy performance iSSUES/MISIAKES. ......covrueivniiuiiinniiiiiieiceteees2 2. No adequate disputesas to material facts regarding Gorbett’s post-pregnancy performance ISSUES/MUSTAKES. .vevvveererrireereereeeenieisestessere see sreseesesaesassessessnesnssssesstessessessessessnsssessesassassassans 4 B. Gorbett Fails To Raise A Disputed Issue of Material Fact Establishing That Spireon’s Legitimate Reason For Her Layoff Was Pretext. ........cccooevvmiiinnnnncnniiiiicine, 4 1. Gorbett’s claim that she was wrongfully accused of making mistakes after she announced her pregnancy does notestablish that her inclusion in the layoffwas pretext and motivated by pregnancy diSCrimination. .........ocouiueisieisirmsinieinieeiiesessee esseresessssssessacseses 5 2. Gorbett’s early layoff date (two weeks before the remaining employees) and her exclusion from the spreadsheet identifying the laid-off employees does notestablish pretext because Spireon provided undisputed legitimate explanations. ...........coeoeereeininieiiininnincceen, 6 3. Gorbett’s claim that Spireon failed to follow its internal reduction in force procedure does not establish pretext or diSCrMINAtION .....cvueveviveeiririrerinteittntee sses6 4. Gorbett’s claim that Johnson’s subjective decision to terminate her instead of one of the two recruiters in the Human Resources Department does not establish pretext or ISCIIMINALION. 1. .eveveererierereereeete esterase se sae see e eres aestasbe reset satsre eres ness este bens esbeseanessensasassasasaasas 7 C. Gorbett Fails To Raise A Disputed Issue Of Material Fact In Support Of Her Failure to Reasonably Accommodate And Failure to Engage In The Interactive Process Claims............ 8 D. Gorbett Fails to Raise A Disputed Issue of Material Fact Establishing A Causal Link Between The Protected Activity And The Employer's ACHON. ........cccoevrviiniiniininniennnsnceeesiesesenenenene 8 E. Gorbett’s Declaration Conflicts With Her Prior Deposition Testimony And Therefore Cannot Be Relied On To Create a Disputed Issue of Material Fact...........ccocoouvievmnerenncnneiiniiinnennes 9 III. CONCLUSION ....oooiiiiiiittteeeecreeeereessseeee settee ssstsessesesessessssssssssssressesessnsaeaasssssssasssssntansssassasssssns 10 - 1 - Spireon,Inc.’s Reply in Support of MSI/MSA O o 0 N N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Table of Authorities Cases Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850 .......ccc.cceeuerreeireieereereneerseens erases benene 5 Archdale v. American Internat. Specialty Lines Ins. Co. (2007) 154 Cal.App. 4" 449, 473 .....oovvveeeeveevereene. 9 Arteaga v. Brink’s, Inc. (2008) 163 Cal.App. 4327, 341veerssensessenses7,9 Guz v. Bechtel Nat., Inc. (2000) 24 Cal. 4™ 317, 363 .......oooeerevereeeeeereeeeeessseesssesssssssse sess ssssssssses esses sesesesses 2,7 Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App. 4" 215, 225........eveerverererreerseeessessesssessassssssssssasssssssssssnsens 4 Jogani v. Jogani (2006) (2006) 141 Cal.APP.Ath 158, 177 weuuveeeveeereereeeeeseeeseressesesesesssssessssssssessssssessessssseses 9 King v. United Parcel Service, Inc. (2007) 152 Cal.App. 4™ 426, 433 .....oveeeieereeeeieseereeesesesessaessesesssessenas4 Morgan v. Regents ofUniversity ofCalifornia (2000) 88 Cal.APP. 4" 52, 75 ....oevrvemevvenrreerrieeesssessssisssssnssenns 8 Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, T74......ccooerveririreiecesereieteeeneesretereee see esssnsnens 5 Wilson v. County of Orange (2008) 169 Cal.App.4th 1185, 1192.....cccoiiriiiiniiiininciicesisnceessesens 8 - iii- Spireon, Inc.’s Reply in Support of MSJ/MSA N O 0 0 N N A w n h s L D N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION In an effort to avoid summary judgment, Plaintiff’s opposition relies on inadmissible, conflicting, and often non-supportive, unrelated evidence in an attemptto establish “disputed” facts. However, after scrutinizing Gorbett’s evidentiary cites, and discarding the inadmissible, unrelated and non-supportive evidence, Gorbett does not properly “dispute” any of the material facts supporting Spireon’s motion; she does not establish that Spireon’s legitimate reason for her layoff was pretext, she does not establish that Spireon intentionally discriminated against her due to her pregnancy, and she does not establish a causal link between her request for leave and layoff. Ms. Regina Johnson selected Gorbett for layoff because her duties and responsibilities were the easiest to absorb by the remaining members of the department and because Gorbett had performance problems, including a lack ofattention to detail. Gorbett cannot dispute that her direct and indirect supervisors expressed concerns about her lack of attention to detail both before and after announcing her pregnancy. Gorbett has not and cannot properly dispute these facts. Instead, Gorbett’s evidentiary citations either completely fail to dispute the referenced fact or only dispute semantics and minutiae ofthe referenced fact by arguing things such as she did not have “major issues” or did not receive “documented” oral reprimands. Similarto her failed attempts to dispute the material facts supporting Spireon’s motion, Gorbett’s “additionalfacts” rely on inadmissible, conflicting and non-supportive evidence. In fact, much of Gorbett’s declaration conflicts with her previous deposition testimony and therefore must be disregarded. Thus, because Gorbett fails to meet the evidentiary standard necessary to defeat Spireon’s motion, Spireon respectfully requests the Court to grant the motion in its entirety. II. ARGUMENT A. Gorbett Fails To RaiseA Disputed Issue OfMaterial Fact Regarding Spireon’s Legitimate Reason for Her Layoff. Gorbett does not dispute that in June 2016, Spireon’s new CEO ordered each department head to reduce their budget by eleven percent (11%) and that in order to comply with this directive, Johnson had to layoff one person from the Human Resources Department. SSUF No. 42. Moreover, nothing in Gorbett’s opposition adequately disputes that Johnson selected Gorbett for layoff based on a legitimate reason - because her job duties were the easiest to absorb by the remaining members of the department. Gorbett’s opposition fails to challenge Johnson’s conclusion regarding the absorption of her duties and, instead, focuses on the factual issues regarding her performance issues. However, Gorbett’s opposition fails to adequately dispute any material fact relating to her performance issues. - 1 - Spireon, Inc.”s Reply in Support of MSJ/MSA [ V I O O 0 N N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In herattempt to dispute the material facts regarding her performance, Gorbett’s evidentiary cites argue semantics and minutia, not material contradictions of the facts. Guz v. Bechtel Nat., Inc. (2000) 24 Cal. 4™ 317, 363. For example, Gorbett argues that she “performed her work without major issues until she informed Defendant of her pregnancy” (Opp. Pg 2, lines 3-4); that she did not receive any write-ups during her entire employment. . .” (Opp. Pg. 2, line 4); and that she “never received any documented oral reprimandsfor her alleged mistakes . . .” (Opp. Pg. 2, lines 5-6). However, Gorbett’s argument that she did not make mistakes serious enough to warrant termination and/or that no one told her she would be terminated for her mistakes is irrelevant, yet untrue.’ Spireon did not terminate Gorbett for performanceissues, but did consider her performance issues in selecting her for layoff. Asset forth below, Gorbett cannot dispute that she exhibited a lack of attention to detail and that Spireon addressed this issue before and after she announced her pregnancy. 1. No adequate disputes as to material facts regarding Gorbett’s pre-preghancy performance issues/mistakes. Gorbett does not adequately dispute that her lack of attention to detail was discussed before she announced her pregnancy. In fact, Gorbett testified as follows: “Q: So it [Gorbett’s mistake] wasa serious enough offensethat they had terminated a temp for it? A: Yes. Q: But Regina [Johnson] told you no, they were going to allow you to continue to work, correct? A: Yes. Q: Did she say anything else to you? A: She said to make efforts to be more detail oriented so it doesn't happen again. Q: So both Tammy and Regina had toldyou thatyou needed to make efforts to be more detail orientedprior to your announcingyourpregnancy, right? A: Yes.” Gorbett’s Depo, 102:9-11; SSUF Nos. 8 and 9. Leong’s December21, 2015, email to Lang-Tanaka also confirms Spireon’s concerns regarding Gorbett’s performance pre-pregnancy: “Not sure if this will help to focus Amber on what our expectations are. ..” SSUF No. 14. Theonly reasonable assumption that can be made from Leong’s email is that, as of December 21, 2015, Gorbett was not focused on Spireon’s expectations for her position. Gorbett has not adequately disputed the material facts establishing that, prior to announcing her pregnancy, Johnson and Lang-Tanaka pointed out the following mistakes: ! Interestingly, in a message exchange with Kristen Parrinello, which was produced by Gorbett, she stated that Spireon threatened to terminate her on the same day Ms. Parrinello went out on leave, which was March 23, 2016, before Gorbett announced her pregnancy to Johnson and Leong. SSUF No. 16; Parrinello’s Decl. 4, submitted with Spireon’s evidence supporting its Motion. , Spireon, Inc.’s Reply in Support of MSI/MSA S H O W N O O 0 3 O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 * Gorbett sent a terminated employee’s exit package, including confidential information,to the wrong employee. Because of her mistake, the employee hired legal counsel and Spireon and the employee reached a settlement. Spireon terminated a temporary employee who made the same mistake. SSUF No. 9. * Ms. Lang-Tanaka pointed out mistakes Gorbett made in an offer letter. SSUF No. 10 * Gorbett made errors in Spireon’s EEOC report by forgetting to include any ofthe Arizona employees. SSUF No. 11. (Gorbett’s evidentiary cites incorrectly state this occurred after she announced her pregnancy; however, Spireon’s evidence confirms it occurred Dec. 2015) * Johnson told Lang-Tanaka of an error she believed Gorbett made in a report that was sent to Spireon’s ten CEO. SSUF No. 15. Although Gorbett’s opposition claims to “dispute” these facts, Gorbett eitherfails to cite admissible and applicable evidence to support such alleged “disputes” or cites evidence that disputes semantics or minutiae of the fact, not actual material contradictions. For example, Gorbett disputes Spireon’s SSUF No. 8 by stating she was never “counseled” about her attention to detail, but was only “informed” that she needed to pay attention to detail. However, as stated above, Gorbett admits that prior to announcing her pregnancy, both her direct and indirect supervisors told her she needed to make efforts to be more “detail oriented.” Gorbett’s “dispute” of Spireon’s SSUF No. 9 is completely non-responsive to the fact identified. In her evidentiary cite, Gorbett states, “[w]hile Plaintiff did make some mistakes due to the lack of training, none of Plaintiff's mistakes were serious enough to warrant her termination.” Although the seriousness of her mistakes is irrelevant, this statement directly conflicts with Gorbett’s testimony that a temporary employee was terminated for making the exact same mistake she made, i.e., sending an exit package with confidential information to the wrong employee. Moreover, Gorbett’s mistake was sending something to the wrong employee - not a topic that necessitated training. Gorbett further disputes this fact by stating that she performed her work without “major issue” until she informed Defendant of her pregnancy. Again,this is simply not true. Gorbett testified to making the four mistakes identified above before informing Spireon of her pregnancy. Pursuant to Gorbett’s sworn testimony,at least one of the mistakes warranted termination. Finally, Gorbett’s evidentiary citation states that she never received any documented oral reprimands for her alleged mistakes. Again, Gorbett’s statement, although irrelevant, argues semantics over substance. Simply because she did not receive a documented oral reprimand does not mean that she did not make a mistake or that Spireon did not raise the issue with her. Gorbett’s “dispute” of Spireon’s SSUF No. 10 similarly focuses on semantics over substance. Gorbett “disputes” this fact by pointing out that she did not state that there was a mistake in the verbiage of the letter. However, when asked if she made mistakes in this - 3 - Spireon, Inc.’s Reply in Support ofMSJ/MSA O O © 0 N N O o w n ~ ~ W w W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 particular employee’s offerletter, Gorbett testified, I think there was something because she was a sales associate, and I don't think I included the correct verbiagefor her.” Gorbett’s Depo 97:3-7. 2. No adequate disputes as to material facts regarding Gorbett’s post-pregnancy performance issues/mistakes. Gorbett has not and cannot dispute that after announcing her pregnancy in the March/April 2016, timeframe, she continued to make mistakes and continued show a lack ofattention to detail. Although Gorbett claims Johnson incorrectly accused her of making certain mistakes, she cannot dispute that she did, in fact, make several mistakes after announcing her pregnancy. For example, on April 28, 2016, Lang-Tanaka asked Plaintiff to initiate a Personal Action form; two months later Lang-Tanaka had to remind Gorbett to initiate the form. Whenaskedifthe failure to timelyinitiate this form was her mistake, Gorbett testified, “its possible.” Gorbett’s Depo, 210:4-14 & SSUF No. 21. On May 19, 2016, Leong discovered that Gorbett failed to properly enter an employee’s 401k loan information. When asked aboutthis issue, Gorbett testified, *“/w]hen the loan was given to him, I missed the initial email. Somebody recognized that it wasn't happening. It may have been him, and then I tried tofind ifI had received the email. And I didfind out that it was my mistake that I missed it.” Gorbett’s Depo, 218:3-22 & SSUF No. 23. Finally, on June 21, 2016, Gorbett sent a personnel action form regarding a salary adjustment to the wrong person. When questioned about this issue, Gorbett testified, “that was my mistake.” Gorbett’s Depo, 212:8-15 & SSUF No. 25. In response to the June 21, 2016, mistake, Johnson scolded Gorbett, pointing out that they have “re- work” to do because she failed to pay “attention to detail. . .” SSUF No. 26. Even Gorbett herself recognized that she lacked attention to detail. In May 2016, Lang- Tanaka asked Gorbett to prepare a list of strengths and weaknesses; Gorbett identified “catching errors without stepping away” and “detail orientation” as two of her weaknesses. Gorbett’s Depo 101:7-12; 190:19-21; SSUF No. 24. B. Gorbett Fails To Raise A Disputed Issue ofMaterial Fact Establishing That Spireon’s Legitimate Reason For Her Layoff Was Pretext. Once an employer satisfiesits initial burden of proving the legitimacy ofits reason for termination,the discharged employee seeking to avoid summary judgment must present specific and substantial responsive evidence that the employer's evidence wasin fact insufficient or that there is a triable issue of fact material to the employer's motive. King v. United Parcel Service, Inc. (2007) 152 Cal.App. 4" 426, 433,citing Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App. 4" 215, 225. In other words, Gorbett must produce substantial responsive evidence showing that Spireon’s legitimate reason for including her in the layoft was pretextual and that a discriminatory reason -4 - Spireon, Inc.’s Reply in Support of MSJ/MSA O O 0 N N O N n n R W N o N o N o N o N o N o N N [\ ®] - - - - p t - p t - - - c o ~ ~ A N w n + S W w N o - o O No ) 0 ~ A N w h H S W w N o p- t o S more likely motivated Spireon or that it’s explanation is unworthy of credence.” King, supra, 152 Cal.App. 4™ at 433. Asset for the below, Gorbett’s evidence does not meetthis standard. Although a court mustliberally construe a plaintiff's opposition, the evidence “remains subjected to careful scrutiny.” Id. A court can find a triable issue of material fact “if, and only if, the evidence would allow a reasonabletrier offact to find the underlying fact in favor ofthe party opposing the motion in accordance with the applicable standard of proof.” Id., citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. A plaintiff's subjective beliefs in an employment discrimination case do not create a genuine issue offact; nor do a plaintiff’s uncorroborated and self-serving declarations. Id. A plaintiff's evidence must relate to the motivation of the decision makers to prove, by nonspeculative admissible evidence, an actual causal link between prohibited motivation and termination. Id. at 433-434,citing Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, 774. Asset forth below, after careful scrutiny, Gorbett’s evidence ofalleged “pretext” does not meet the above evidentiary standard.” 1. Gorbett’s claim that she was wrongfully accused ofmaking mistakes after she announced her pregnancy does nol establish that her inclusion in the layoffwas pretext and motivated by pregnancy discrimination. Gorbett’s pretext argument focuses on her claim that prior to announcing her pregnancy, she performed her work without “major” issues, yet after announcing her pregnancy, her work was “nitpicked” and she was accused of mistakes she did not make. However, the undisputed facts establish Gorbett did have performance issues prior to announcing her pregnancy and performance issues after announcing her pregnancy. See Section Al & 2, above. Moreover, much of Gorbett’s evidence relating to Leong’s alleged conductis speculative. For example, Gorbett’s declaration states that Leong, who was not the decision maker in her layoff, began trying to get her to commit || mistakes by giving her erroneous instructions. Gorbett Decl., 16. Notwithstanding Gorbett’s lack of factual support for this statement, this is nothing more than Gorbett’s speculation. In fact, in her deposition, Gorbett testified she “speculated” that Leong accused herofthings behind closed doors (SSUF No. 34) and “felt” like Leong was trying to make her look bad. Gorbett’s speculation and subjective beliefs regarding a non-decision maker’s conduct do not establish pretext. Even Gorbett’s allegations against Johnsonfail to establish a causal link between her layoff and an alleged discriminatory motive. Initially, Gorbett admits that Johnson never made a negative comment about her pregnancy or her need for a leave of absence. SSUF No. 28 & 29; Gorbett'’s 2 As a result, Gorbett’s 1%, 2™, 5"6™ and 7" causes of action fail. Because Plaintiff cannot establish a pretextual termination, she cannot establish her 3" or 4™ cause of action. Spireon, Inc.’s Reply in Support of MSJ/MSA O O 0 N N A n w B A W y N O N O N O N N N N N N m m e m e e e s e s e s e m e e 0 ~ N O N t h B R W N = D O V v N N N s x W N - - O o Depo, 87:2-11. Moreover, Gorbett does not adequately dispute that after announcing her pregnancy Johnson and Lang-Tanaka correctly pointed out multiple mistakesthat she admits making, including her failure to timely initiate a Personnel Action Form, forwarding an email without reading it, failing to properly enter an employee’s 401k loan, and sending a salary adjustment form to the wrong employee. (SSUF Nos. 21, 22, 23, 25). Finally, Gorbett admits that on one ofthe three occasions when Johnson allegedly incorrectly blamed her for a mistake, Johnson also blamed Lang- Tanaka, a non-pregnant employee. SSUF No. 38; Gorbett’s Depo, 116:1-6. 2. Gorbett’s early layoffdate (two weeks before the remaining employees) and her exclusion from the spreadsheet identifying the laid-offemployees does not establish pretext because Spireon provided undisputed legitimate explanations. Gorbett argues that because she was laid off on July 14, 2016, two weeks before the remaining employees, her inclusion in the reduction in force constituted pretext for discrimination. However, Spireon provided a legitimate, nondiscriminatory explanation for her early release date - Johnson did not think it was fair to have Gorbett, as a Human Resources Analyst, perform the administrative work necessary to support the layoff and then include herin it. SSUF No. 49. In her deposition, Gorbett confirmed that as a member of the Human Resources Department, she would haveassisted in the layoff and admitted that she assisted with previous layoffs. Gorbett Depo, 159:10-160:2. Lang-Tanaka also testified that the Human Resources Department provided “end to end” support for the August 2016 layoff. SSUFNo 50. Finally, Gorbett testified that a Spireon employee confirmed this was the reason forher earlier layoff date, “Bonnie told me that someone gave her a reason that Regina said she didn't want me to do all the administrative work,just to be let go myself.” Gorbett’s Depo, 159, 13-15 & SSUF No. 49. Gorbett’s alleged “dispute” of this fact is based on nothing more than speculation and argument, not admissible evidence. Gorbett also points to her exclusion from the spreadsheet listing the employees who were included in the layoff as evidence of pretext. Again, Gorbett presented no evidence disputing Spireon’s legitimate explanation for her omission - the spreadsheet was prepared by the Human Resources Department after Gorbett’s layoff date. The undisputed facts establish that the non- management members of the department were not informed of the impending reduction in force, and did not begin the work necessary to implement and support the reduction in force until immediately after Gorbett’s termination. SSUF No. 49. Leong, as Spireon’s PMK,confirmed that Human Resources created the spreadsheet after Gorbett’s layoff. Leong's Depo, 155:25-156:18. 3. Gorbett’s claim that Spireon failed to follow its internal reduction in force procedure does not establish pretext or discrimination. Gorbett attempts to dispute Spireon’s legitimate reason forher layoff and argue pretext by Spireon, Inc.’s Reply in Support of MSJ/MSA O O 0 N N n n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pointing to its failure to follow the Severance Process Flow procedure for the August 2016 reduction in force. Spireon’s Severance Process Flow procedures set forth several internal steps in preparing for a reduction in force, including preparing a Business Justification Documentation form, preparing a Ranking Worksheet, and considering affected employees for current open positions. In support of her pretext argument, Gorbett points out that Spireon failed to follow this procedure for the August 2016 reduction in force. However, Gorbett does not connect Spireon’s failure to follow this internal procedure to pregnancy discrimination. In fact, as Gorbett points out, Spireon did not follow this procedure for the entire August 2016 reduction in force. The undisputed facts establish that the reduction in force included a total of forty-six employees company-wide. Thus, Spireon treated all forty-six (46) employees the same. Arteaga v. Brink's, Inc. (2008) 163 Cal.App. 4™ 327, 341 (Discrimination occurs when the employertreats some people less favorably than others because of their protected classification) Spireon’s failure to follow its internal Severance Process Flow for all forty-six employees does not constituted evidence of pretext or discrimination. See also Guz Bechtel Nat., Inc. (2000) 24 Cal.4™ 317, 365-365 (Failure to follow its internal procedures regarding reduction in force was not enough to establish evidence ofintentional discrimination.) 4, Gorbett’s claim that Johnson's subjective decision to terminate her instead ofone of the two recruiters in the Human Resources Department does not establish pretext or discrimination. Gorbett argues that Johnson’s decision to include her in the layoff was not based on objective criteria and terminating her over one ofthe two recruiters shows pretext because Spireon was on a hiring freeze and therefore, the recruiters had nothing to do. Gorbett’s argumentis factually and legally incorrect. Factually,it is undisputed that Johnson based her decision on objective criteria - whose job duties could most easily be absorbed by the remaining members and who had performance issues. After analyzing these criteria, Johnson selected Gorbett. SSUF No. 4 and 44. Legally, Johnson's selection of Gorbett instead of one of the two recruiters does not establish pretext unless there is some indication of pregnancy discrimination. It is not enough for Gorbett to arguethat the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated Johnson’s decision, not whether her decision was * The only other employee at Gorbett’s level in the organizational chart was Kristen Parrinello. Parrinello, who is supervised by Leong and Johnson, took a pregnancy leave of absence from 3/23/16 to 6/16/16. SSUF No. 16. Thus,it begs the question, why would Johnson exhibit discriminatory animus towards Gorbett but not Parrinello? Gorbett tries to make a comparison to an alleged pregnant employee who Spireon allegedly terminated a few months prior to Gorbett. However, Gorbett admits that the employee did not work in Human Resources,that she does not know why employee was laid off, and does not know who made the decision to lay her off. Thus, the evidence supporting this “comparison” is hearsay, lacks foundation, lacks personal knowledge,is speculative and therefore inadmissible. Z Spireon, Inc.’s Reply in Support of MSJ/MSA w n A r W N O o 0 N N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 wise, shrewd, prudent, or competent. Gorbett must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the reasons offered by Johnson for the employment decision that a reasonabletrier of fact could rationally find the reasons not credible, and thereby infer the employer did not act for the stated nondiscriminatory purpose. Morgan v. Regents ofUniversity ofCalifornia (2000) 88 Cal.App. 4" 52, 75. Here, Gorbett submits no evidence supporting her argument that because Spireon allegedly implemented a hiring freeze until August 2016, the recruiters have “no work to do.” C. Gorbett Fails To RaiseA Disputed Issue OfMaterial Fact In Support OfHer Failure to Reasonably Accommodate And Failure to Engage In The Interactive Process Claims. The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA,(2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability. Wilson v. County of Orange (2008) 169 Cal.App.4th 1185, 1192. Gorbett has not only failed to establish she had a disability, she failed to establish she was qualified to perform the position. Gorbett argues she was qualified because “she did not receive any write-ups and performed her job well.” See Opp., pg 9:21-22. However, Spireon’s undisputed facts establish that Gorbett was not performing her job well due to her numerous mistakes and lack of attention to detail. SSUF Nos. 7-15, 21-27. Moreover, Gorbett failed to present admissible evidence establishing that a reasonable accommodation actually existed. To prevail on a claim for failure to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred. Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1019 (An employee should be able to identify a specific, available reasonable accommodation through the litigation process, and particularly by the time the parties have conducted discovery and reached the summary judgment stage.) Gorbett’s opposition does not identify an available reasonable accommodation. Gorbett does not dispute that at the time of her layoff, there were no open positions in Spireon’s Human Resources Department. SSUF 43. Nor does Gorbett identify any other available position for which she was qualified. In fact, Gorbett argues that Spireon had a hiring freeze in place through August 2016. Because she failed to identify an available reasonable accommodation, both her failure to engage in the interaction process and failure to reasonably accommodate claims fail. D. Gorbett Fails to Raise A Disputed Issue ofMaterial Fact EstablishingA Causal Link Between Her ProtectedActivity And The Adverse EmploymentAction. Defense counsel withdraws the argument relating to Gorbett’s Fifth Cause of action for -8 - Spireon, Inc.’s Reply in Support of MSJ/MSA O O 0 N N O N n n B W N e N o N N N o N o N o N N N o N o - - - p t - [S - - - - - 0 N O N L n B l W N = O O N S N N R W = O Retaliation and requestfor leave not constituting “protected activity” and apologizes to Gorbett and the Court for the oversight ofthe recently enacted FEHA regulations. Notwithstanding, Gorbett has not identified a disputed material fact establishing a causal link between the protected activity and her layoff. Instead, the undisputed facts establish that Johnson made the decision to include Gorbett in the reduction in force in the end ofJune (SSUF Nos. 42 & 43; Johnson Depo, 110:19-23), yet Gorbett did not request her leave until July 12, 2016. SSUF No. 45. Notwithstanding and even assuming Johnson knew about Gorbett’s requested leave of absence, other than the timing, there is no evidence connecting her request for a leave and her layoff. Gorbett’s performance issues, one of the criteria used to select her for layoff, undisputedly existed prior to Gorbett’s protected activity,i.e. her requested leave. Thus, further attenuating any causal link. See Arteaga v. Brink’s,Inc., 163 Cal.App. 4™at 353-354 (Temporal proximity aloneis not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination. This is especially true where the employer raised questions about the employee's performance before he engaged in protected activity, and the subsequent termination related to those performance issues.) E. Gorbett’s Declaration Conflicts With Her Prior Deposition TestimonyAnd Therefore Cannot Be Relied On To Create a Disputed Issue ofMaterial Fact. In opposing a motion for summary judgment, a plaintiff may not create a disputed issue of fact by contradicting his or her deposition testimony with a declaration. Jogani v. Jogani (2006) (2006) 141 Cal.App.4th 158, 177; Archdale v. American Internat. Specialty Lines Ins. Co. (2007) 154 Cal.App. 4™ 449, 473 (A party's self-serving declarations contradicting credible discovery admissions and purporting to impeach her own prior sworn testimony should be disregarded.) Here, in addition to submitting inadmissible evidence and evidence that does not properly dispute the material facts, Plaintiff attempts to create a disputed issue of fact by submitting a declaration that contradicts her prior deposition testimony. Due to these contradictions, the majority of Plaintiff’s declaration must be stricken and/or otherwise not considered. See also Defendant’s Objections/Motion to Strike Plaintiff’s Evidence and Defendant’s Opposition to Plaintiff's Additional Disputed Facts. For example, Paragraph 9 of Gorbett’s declaration states, “none ofmy alleged mistakes were serious enough to warrant my termination.” Similarly, Paragraph 10 states, “I performed my work without major issue until I informed Defendant ofmy pregnancy.” Setting aside the semantics of how many and the type of “issues” she had prior to announcing her pregnancy,this statement directly conflicts with Gorbett’s testimony regarding the “major” mistake she made in December Spireon, Inc.’s Reply in Support of MSI/MSA 0 N N O N w n R A W N O o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2015, by sending exit paperwork, which included confidential information, to the wrong employee. SSUF No. 9. Gorbett testified in her deposition that her mistake was serious enough that Spireon terminated a temporary employee for the exact same mistake. Gorbett’s Depo, 102:9-11. Numerous statements in Paragraph 21 of her declaration also conflict with Gorbett’s previous deposition testimony regarding Lang-Tanaka. For example, Paragraph 21 states, “Tanaka also stated, something to the effect of, ‘if people did not get pregnant, we would not be short- staffed.” However, in her deposition, Gorbett confirmed that the only two people who treated her negatively after announcing her pregnancy were Leong and Johnson. Gorbett’s Depo, 106:3-13. More importantly, when asked whether Lang-Tanaka made any negative comments about Gorbett’s pregnancy, Gorbett said “no” and when asked whether Lang-Tanaka made any negative comments about her impending leave of absence, Gorbett testified that she simply said they would be “short - staffed during open enrollment.” Gorbett’s Depo, 87:25-88:19. Paragraph 21 ofher declaration further states, “Tanaka asked me to start creating and updating manuals to document my job duties. I asked Tanaka if I was being terminated and was reassured that I was not.” However, in her deposition, Gorbett testified that when she asked Tanaka why Johnson wanted her to create and update manuals so early before her leave and whether she needed to worry about her job, Tanaka, “did something to the effect ofa shrug or an I don't know. Something like that.” Gorbett’s Depo, 140:15-24. Due to the conflicts between her declaration and her prior deposition testimony, Gorbett’s declaration cannot be relied on to create a disputed issue of material fact must be disregarded. See Spireon’s Objections to Plaintiff’s evidence; Opposition to Additional Statement of Disputed Facts. III. CONCLUSION Gorbett has failed to present admissible evidence substantiating her pregnancy and disability related claims. Based on the arguments set forth above, Spireon respectfully requests the Court grantits Motion for Summary Judgment in its entirely or, in the alternative grant it Motion for Summary Adjudication ofIssues. Dated: January 19, 2018 LAW OFFICES OF MARY E. LYNCH on x " MARY E.LYNCH Attorney for Defendant SPIREON, INC. - 10- Spireon, Inc.’s Reply in Support ofMSI/MSA O O 0 N N n n B R A W N N N N N N N N N N m m m m e m e m e m e m e m e d 0 N N A A L n B A W N = , O O R N S N D W N = E © PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange; | am overthe age of eighteen years old and not a party to the within entitled action; by business address is 100 Spectrum Center Drive, Suite 420, Irvine, California 92618 On January 19, 2018, I served the following document described as SPIREON, INC.’S REPLYIN SUPPORT OFITS MOTIONFOR SUMMARYJUDGMENT OR, IN THEALTERNATIVE, SUMMARY ADJUDICATION OFISSUES on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes and/or packages address as follows: AEGIS Law Firm, PC Samuel A. Wong, Esq. Kevin H. Sun, Esq. 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 BY OVERNIGHT DELIVERY: I enclosed the documents on the date shown below in an envelope or package provided by overnight delivery carrier and addressed to the persons at the addresses set forth above. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Executed on January 19, 2018 at Irvine, California > MARY E. LYNCH -iv- Spireon, Inc.’s Reply in Support ofMSJ/MSA