Abed v. W. Dental Servs., Inc.

On her first day, Abed met with Dr. Andrew Rivamonte, D.D.S., the managing dentist of the Napa office. According to Abed, Dr. Rivamonte said she should "look at [the externship] as a four- to six-week working interview" and try to learn as much as possible. Dr. Rivamonte testified that he intended to convey to externs "that what they were doing was very, very important, and like the history of all these other externs, that they eventually applied [to] and [were] hired by Western Dental, so [he] wanted to put out there that historically these externs have been hired." Dr. Rivamonte testified that "[a] majority of externs have been hired ... after their externships," and he could not recall any extern other than Abed who did not obtain a permanent position there.

During her externship, Abed was supervised by Sabrina Strickling, a registered dental assistant. As the floor supervisor, Strickling was responsible for scheduling, ordering supplies, ensuring dentists had assistance and rooms

If the plaintiff establishes a prima facie case, creating a "presumption of discrimination," the burden shifts to the employer to provide " 'a legitimate, nondiscriminatory reason for the challenged action.' " ( Serri, supra , 226 Cal.App.4th at pp. 860-861, 172 Cal.Rptr.3d 732 .) Under the third step of the McDonnell Douglas framework, "the 'plaintiff must [then] ... have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.' " ( Serri , at p. 861, 172 Cal.Rptr.3d 732 .) The employer's burden to provide a legitimate nondiscriminatory reason is one of production, not persuasion, and the employer " ' "need not persuade the court that it was

2. The standards governing Western Dental's motion for summary judgment and our review of the trial court's ruling.

The standard for granting summary judgment is familiar. Summary judgment is appropriate if "there is no triable issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." ( Code Civ. Proc., § 437c, subd. (c).) For a defendant to meet its initial burden when moving for summary judgment, it must demonstrate " 'that a cause of action has no merit' " by showing either " 'that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to that cause of action.' " ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 , 849, 107 Cal.Rptr.2d 841 , 24 P.3d 493 , quoting

In evaluating a grant of summary judgment, we review the record de novo, "liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party." (

In its ruling, the trial court properly recognized that Abed's failure to apply for a dental assistant position did not automatically defeat her FEHA claim. But the court nonetheless concluded that Abed failed to establish a prima facie case of pregnancy discrimination because she could not establish that filing an application would have been futile under the futile-gesture doctrine. This doctrine was announced by the United States Supreme Court in Teamsters . In that case, class claims alleged that the employer "had engaged in a pattern or practice of discriminating against minorities in hiring ... line drivers," and the plaintiffs, who were incumbent employees, sought "an opportunity to transfer to line-driver jobs with full company seniority for all purposes." ( Teamsters, supra , 431 U.S. at pp. 329-330, 97 S.Ct. 1843 .) In addressing appropriate remedies, the Court rejected the employer's contention "that a person who has not actually applied for a job can never be awarded seniority relief." ( Id. at p. 365, 97 S.Ct. 1843 .) It explained, "The effects of and the injuries suffered from discriminatory employment practices are not always confined to those who were expressly denied a requested employment opportunity. A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection. [¶] ... When 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." ( Id. at pp. 365-366, 97 S.Ct. 1843 .)

We disagree with the trial court that the survival of Abed's FEHA claim depended on the futile-gesture doctrine. The claim is not that it would have been futile for Abed to apply (even if it might have been) 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. This is a different, but also legitimate, reason for her not to have applied. And because the futile-gesture doctrine has little applicability here, we disagree with the court's determination that it mattered that Abed presented no evidence of a "consistently enforced discriminatory policy." ( Teamsters, supra , 431 U.S. at p. 365, 97 S.Ct. 1843 .) While Teamsters involved claims of pattern-or-practice discrimination and focused on the presence of a "consistently enforced discriminatory policy," the decision 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.

In short, we conclude that summary adjudication of the FEHA claim was not justified on the basis that Abed's failure to apply for a position meant she was unable to establish a prima facie case of pregnancy discrimination under the McDonnell Douglas framework. Although Western Dental claims that Abed's failure to apply also constituted a legitimate nondiscriminatory reason for not hiring her, we need not address this argument. It does not matter whether we conceptualize the evidence as creating a prima facie case of discrimination to which Western Dental failed to respond with a legitimate nondiscriminatory reason or as demonstrating that the company's proffered reason was pretextual. As we now turn to explain, Abed satisfied her responsive burden either way by raising triable issues as to whether Western Dental intentionally discriminated against her.

Plaintiff Ada Abed sued Western Dental Services, Inc. (Western Dental), alleging two claims, including one for being denied a job on account of pregnancy in violation of the FEHA. Western Dental moved for summary adjudication of the claim, and the trial court ruled in the company's favor on the basis that it was undisputed that Abed had not submitted an application. After resolving the other claim in Western Dental's favor, the court entered a final judgment dismissing the case.

On appeal, Abed contends that the trial court wrongly dismissed her FEHA claim. We agree. Even though Abed never applied for a job, she raised triable issues of material fact as to whether Western Dental intentionally discriminated against her by falsely telling her that no position was available. Accordingly, we reverse in part and reinstate the FEHA claim.

FACTUAL AND PROCEDURAL BACKGROUND

A. Western Dental's Process for Hiring Dental Assistants.

Western Dental operates dental offices and clinics throughout California, including one in Napa. The company accepts student externs from schools that have dental assistant programs. Externs 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.

When Western Dental posted a job opening for a dental assistant on its website, it did so for one of two reasons. One reason was to advertise actual open positions that needed to be filled. Elvira Quintana was the manager of Western Dental's Napa office, and she testified that she was required to request and obtain the regional manager's approval to fill a need for a dental

The other reason Western Dental would post a job opening was to create a pool of applicants for positions that, while not currently open, might open in the future. According to a manager in Western Dental's corporate recruiting office, who testified as the person most knowledgeable about the company's recruitment of dental assistants, these types of postings were known as "evergreens," and they generated a list of candidates that could be tapped into quickly if a position opened.

In March 2015, an open requisition for a dental assistant in the Napa office was approved, and a solicitation for applications was publicly posted. The recruiting manager testified that she could not tell whether this solicitation, which was on Western Dental's website throughout the relevant time period, was originally posted as an evergreen. Quintana, however, 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.

B. Abed's Externship at Western Dental.

Abed began a dental assistant program at Carrington College in July 2014. To

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. About a day later, Strickling and Abed met in Quintana's office, and Strickling told Abed what Quintana had said. Quintana, however, could not recall ever telling Strickling to inform Abed that there was no position available in Napa.

According to Abed, a few days before this meeting she had asked Strickling whether there were any openings for dental assistants in the Napa office. Strickling said she was not sure and would check. Strickling confirmed that sometime before she talked to Quintana about Abed, Abed had said she wanted to work in the Napa office, although Strickling could not remember the details of the discussion. Quintana could not recall whether Strickling asked about an opening for Abed.

Abed testified that during the meeting in Quintana's office, Strickling reported there were no openings in Napa but said that "maybe [Abed] would want to check Fairfield or Vacaville." Strickling offered to call to see if those offices were hiring, but Abed did not follow up because she wanted to live in Napa. Abed explained, "My doctor is-my OB was in Napa. I needed to be local to Napa, which [was] the whole reason [for] doing my externship in Napa."

Abed did not apply for a position in the Napa office because Strickling had told her there were no openings for a dental assistant there. But before her externship was over, Abed learned that an opening in the Napa office was posted on Western Dental's website. When asked why, if she was "told there were no positions available and [she] saw a position posted on the website, ... [she] didn't ... go talk to anyone about it," Abed responded, "Why didn't I talk to somebody? Because I'm not the type of person to confront anybody about anything. I [would] much rather just like just chill, just be gone."

Abed completed her externship on June 20, 2015. Abed testified, and Strickling agreed, that on Abed's last day Strickling indicated that Abed should contact the Napa office to see if she could get a position there "after she had her baby." As it turned out, Abed never applied for a dental position anywhere. She explained, "I [came] to like the front office more, which is what I do now. So every job I would apply for, it would be the front office. [¶] Although I do have my back knowledge, so I always kind of tell them I can be a floater, from the front to the back, but I want the front."

Once a defendant satisfies its initial burden, "the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto." ( Code Civ. Proc., § 437c, subd. (p)(2).) In the context of an employer's motion for summary adjudication of a discrimination claim, this means "the burden shifts to the [plaintiff] to 'demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.' " ( Serri, supra , 226 Cal.App.4th at p. 861, 172 Cal.Rptr.3d 732 , italics omitted; see also Caldwell, supra , 41 Cal.App.4th at p. 203, 48 Cal.Rptr.2d 448 [plaintiff must "produce[ ] admissible evidence which raises a triable issue of fact material to the defendant's showing" to avoid summary judgment].) Thus, "by applying McDonnell Douglas 's shifting burdens of production in the context of a motion for summary judgment, 'the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.' " ( Caldwell , at pp. 202-203, 48 Cal.Rptr.2d 448 , quoting Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248 , 255, fn. 8, 101 S.Ct. 1089 , 67 L.Ed.2d 207 .)

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. (See Guz, supra , 24 Cal.4th at p. 355, 100 Cal.Rptr.2d 352 , 8 P.3d 1089 .) But, as we discuss further below, the elements of a prima facie case under McDonnell Douglas can vary depending on the plaintiff's allegations, and the plaintiff need not establish any particular element so long as he or she ultimately presents enough evidence to support an inference that an employment decision was discriminatory. Thus, even when a defendant employer has presented evidence undermining a usual prima facie element, a plaintiff can still defeat summary judgment by presenting evidence that establishes a prima facie case in a different way or otherwise creates

C. There Are Triable Issues as to Whether Western Dental Intentionally Discriminated Against Abed by Falsely Telling Her That No Job Was Available.

Western Dental contends that it was entitled to summary adjudication of the FEHA claim because, as both parties agree, Abed did not apply for a dental assistant position. We are not persuaded. Although Western Dental negated an element of the prima facie case that often applies in failure-to-hire claims, this was not a typical failure-to-hire claim. Abed was not required to show that she submitted an application to prevail because she raised triable issues as to whether Western Dental intentionally discriminated against her because she was pregnant by falsely telling her no position was available and thereby causing her not to apply for one.

1. Abed's FEHA claim is not defeated by her failure to apply for a dental assistant position.

We begin by rejecting Western Dental's argument that Abed's claim "fails as a matter of law" because Abed never applied for a dental assistant position. "The prima facie case under McDonnell Douglas ... is an evidentiary standard, not a pleading requirement." ( Swierkiewicz v. Sorema N.A. (2002) 534 U.S. 506 , 510, 122 S.Ct. 992 , 152 L.Ed.2d 1 .) Its purpose is "to eliminate at the outset the most patently meritless claims" ( Guz, supra , 24 Cal.4th at p. 354, 100 Cal.Rptr.2d 352 , 8 P.3d 1089 ), and "[a] plaintiff's burden in making a prima facie case of discrimination is not intended to be 'onerous.' " ( Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297 , 322, 115 Cal.Rptr.3d 453 .) Thus, "[t]he importance of McDonnell Douglas 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." ( Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735 , 1750, 52 Cal.Rptr.2d 620 , some italics omitted, citing Teamsters v. United States (1977) 431 U.S. 324 , 358, 97 S.Ct. 1843 , 52 L.Ed.2d 396 ( Teamsters ).) "Moreover, the precise requirements of a prima facie case

Similarly, in Curran v. Portland Super. Sch. Committee., etc. (D.Me. 1977) 435 F.Supp. 1063 ( Curran ), an employer did not give notice of a job opening to the plaintiff or its other qualified female employees but instead "privately offered the position to a male whose qualifications were inferior to [the] plaintiff's." ( Id. at p. 1070.) The district court concluded that the plaintiff had established a prima facie case of discrimination despite not applying for the position, because under Teamsters the "failure of an incumbent employee to formally apply for a job does not constitute a per se barrier to relief," and the plaintiff alleged that her employer's discriminatory practices "made it impossible for her to apply." ( Curran , at p. 1072.)

In attempting to distinguish Rodgers and Curran , Western Dental focuses on the failure by both of the employers in those cases to publicize the openings not only to the plaintiffs but also to others in the plaintiffs' protected classes. Western Dental argues that it publicly posted the Napa dental assistant position, and Abed "offer[ed] no evidence that pregnant women were prevented from applying in any manner." But Abed was already an extern

Abed presented significant evidence that Western Dental acted with "discriminatory animus" by telling her there was no opening for a dental assistant in the Napa office. ( Serri, supra , 226 Cal.App.4th at p. 862, 172 Cal.Rptr.3d 732 .) Strickling made several remarks suggesting she did not want Abed to work in Napa because she was pregnant. DeHaro testified that Strickling told her "something to the effect that if [Abed] were pregnant, it would not be convenient for the office," and, according to Abed, Strickling told DeHaro, "[W]ell, if [Abed is] pregnant, I don't want to hire her." On Abed's last day, Strickling told Abed to contact the Napa office after she had her baby to see if she could get a job there, permitting the inference that Abed would not be considered for a position while she was pregnant. In addition, it is undisputed that Strickling told Abed there were no dental assistant positions available in the Napa office, and Abed presented evidence that Strickling's representation was false. This evidence included that there was an open requisition for such a position, the position was publicly posted, and the position was filled shortly after Abed finished her externship. Indeed, there was evidence that Quintana was accepting applications for the position while Abed was still working there. As a whole, this evidence satisfied Abed's burden of demonstrating triable issues as to whether Western Dental intentionally discriminated against her by discouraging her from applying to become a dental assistant.

Western Dental contends that even if Strickling's comments were discriminatory, Abed "has not presented any evidence whatsoever that anyone with hiring authority was aware of her pregnancy at the time of her externship or that [the company] had any discriminatory animus towards pregnant candidates." To avoid summary judgment, however, a plaintiff "need not demonstrate that every individual who participated in the failure to hire him [or her] shared discriminatory animus." ( DeJung v. Superior Court (2008) 169 Cal.App.4th 533 , 551, 87 Cal.Rptr.3d 99 .) Rather, "showing that a significant

Western Dental also argues that some evidence demonstrates Abed did not apply for a dental assistant position because she was not interested in one, not because she was discouraged from doing so. It points to her acknowledgment that before her externship was over she learned a position in the Napa office was posted online, her failure to apply for positions in other Western Dental offices, and her failure to ever apply to become a dental assistant at any company. This evidence may create a dispute about Abed's reasons for not applying to the Napa office, but it does not conclusively establish that she would have not applied for the position had she been truthfully told one was available. She told Strickling she wanted a job in the Napa office, asked whether there was a dental assistant position available, and specifically testified that she did not apply for a job with Western Dental because she "was told there [were] no openings." If Western Dental falsely and for discriminatory reasons misrepresented that there was no dental assistant position available in the Napa office, it is hardly surprising that Abed did not seek a job there once she discovered she had been lied to. Nor can Western Dental escape liability for past discriminatory acts merely because Abed did not demonstrate an ongoing interest in becoming a dental assistant by applying for similar positions, including in offices that were inconveniently located. We recognize 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. But Abed has presented enough evidence to entitle her to a trial on her FEHA claim.

DISPOSITION

The judgment is reversed in part as to Abed's claim for pregnancy discrimination under the FEHA and affirmed in part as to her claim for invasion of privacy. The case is remanded for further proceedings consistent with this opinion. Abed is awarded her costs on appeal.

We concur:

Margulies, J.

Banke, J.