Reversing summary judgment against a Wells Fargo employee’s unlawful termination claim under the California Family Rights Act (CFRA), a divided Ninth Circuit in an unpublished opinion found triable issues on whether her termination was really due to a business slowdown as asserted by Wells Fargo or was because she took protected leave after her baby was born. Summary judgment was affirmed against her failure-to-promote claim. Judge Bybee dissented in part and would have affirmed summary judgment against the discriminatory termination claim as well (Garcia v. Wells Fargo Bank, NA, June 20, 2018, per curiam, unpublished).
The employee, who worked for Wells Fargo, applied to be promoted to a “Loan Doc Specialist” position but, according to her, was passed over because of her pregnancy. She also claimed that while Wells Fargo granted her request to take additional CFRA leave after her baby was born, the bank unlawfully terminated her because she took protected leave. For its part, the bank claimed that her position was eliminated because business had slowed down.
Failure-to-promote claims fail. Affirming summary judgment in part, the Ninth Circuit first addressed the discriminatory non-promotion claim. The employee acknowledged that the individual who was selected for the position was more qualified but claimed there was direct evidence of discriminatory animus on the part of the area manager, who allegedly said she “cannot afford to promote a pregnant woman because she would take time off work.”
To the appeals court, this was not enough to support her claim. Though the area manager who allegedly made the discriminatory comment supervised the two individuals who made the hiring decision for the position, both provided sworn statements that they had no knowledge that the area manager had made any statements concerning the employee’s pregnancy. Because there was no evidence supporting a rational inference that the area manager’s statement influenced the hiring decision, the failure-to-promote claim failed as a matter of law.
Termination claims revived. On the other hand, the appeals court found triable issues on whether the proffered reason for eliminating the employee’s position was pretextual. Wells Fargo’s evidence consisted primarily of a “Business Case” dated three days before her termination, which stated that a “slowing in the market” resulted in a “position elimination of the HMC Jr.” However, as pointed out by the employee, Wells Fargo offered little to substantiate this bare assertion of a market slowdown. The Business Case referred to six other branches in referring to a difficult market, but three of those were well outside of the area served by the employee’s branch (two were in Hawaii) and Wells Fargo provided no data to support that there was an actual change in market conditions at any of its branches.
On the other hand, the employee offered evidence suggesting there wasn’t a business slowdown at her branch. She testified that two weeks after she was granted additional CFRA leave, two other employees came to her house and took her laptop and keys, explaining that a “new HMC was going to be sitting at [the employee’s] desk.” Though the evidence on both sides of the question was limited, the question of which side was more persuasive was for the jury.
Partial dissent. Judge Bybee would have affirmed summary judgment against the discriminatory termination claim, finding that Wells Fargo’s explanation for eliminating the employee’s position was well supported by an internal document explaining that her “HMC Jr.” position could only exist if there was an “HMC” willing to have a supporting person and split commissions. The HMC with whom the employee was paired declared that her loan processing business began to decline around the middle of 2014 and by October she determined she “no longer had enough business to support a HMC Jr.” Because no other HMC wished to take the employee on, her position was eliminated. In Judge Bybee’s view, the employee’s evidence failed to suggest that this reason for her termination was unworthy of credence.
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