Abed v. W. Dental Servs., Inc.

• Decision Date: 23 May 2018
• Docket Number: A150933
• Citation: 23 Cal.App.5th 726,233 Cal.Rptr.3d 242
• Court: California Court of Appeals Court of Appeals
• Parties: Ada ABED, Plaintiff and Appellant, v. WESTERN DENTAL SERVICES, INC., Defendant and Respondent.

23 Cal.App.5th 726

233 Cal.Rptr.3d 242

Ada ABED, Plaintiff and Appellant,

v.WESTERN DENTAL SERVICES, INC., Defendant and Respondent.

A150933

Court of Appeal, First District, Division 1, California.

Filed May 23, 2018

Certified for Partial Publication.^*

Counsel for Plaintiff and Appellant: Michael von Loewenfeldt, Kerr & Wagstaffe LLP, Gary E. Moss, Law Offices of Moss & Hough, Mary Patricia Hough, Law Offices of Moss & Hough, San Francisco.

Counsel for Defendant and Respondent: Gregory G. Iskander, Littler Mendelson, P.C., Walnut Creek, Christina L. Piechocki, Littler Mendelson, P.C.

Humes, P.J.

This case asks whether a potential employer can be held liable under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq. ) for thwarting a pregnant woman from applying for a job by falsely telling her that no position is available. In the published portion of our decision, we conclude it can.

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.

I. 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 assistant. If the regional manager approved her request, an open requisition would be created and a solicitation for applications would be posted on Western Dental's website.

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 obtain her certificate, she was required to complete 180 hours in an unpaid externship with a dental office. The following spring, she successfully applied for an externship in Western Dental's office in Napa, the city where she wanted to live. She began the externship on May 18, 2015. At the time, she was pregnant, which she did not disclose to anyone at Western Dental.

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 were properly set up, and managing the flow of cases. Strickling sometimes met with job candidates, but "[h]er role in the interview process [was] limited to answering the candidates' questions about the position and explaining office operations." According to Dr. Rivamonte, Strickling "[did] not have the authority to hire, fire, or discipline, nor [did] she make any recommendations related to hiring."

Abed performed several duties as an extern, including taking x-rays, providing chairside assistance, sterilizing instruments, and cleaning exam rooms. Strickling filled out three evaluations of Abed during her externship. Abed consistently received high marks, and on the final evaluation, Strickling graded her "above average" in all categories. Dr. Rivamonte characterized Abed as "on par with all the other externs [he] ever had at the office."

C. The Discovery of Abed's Pregnancy.

At some point during her externship, Abed hung her purse in the employee break room. The purse was "about halfway" open, and it contained a bottle of prenatal vitamins

. While Strickling was with another employee in the break room, she saw "[t]he vitamins ... sticking out of the purse." Strickling asked, "Oh, whose prenatal vitamins are those?," and the other employee indicated the purse was Abed's. Strickling responded, "Oh, she must be pregnant."

Sometime later, Strickling and a different dental assistant, Mirella DeHaro, were talking in the break room. DeHaro testified that Strickling said she thought Abed might be pregnant because of the prenatal vitamins

in her purse. Strickling then asked whether DeHaro knew that Abed was pregnant, and DeHaro said no. DeHaro indicated that Strickling then "said something to the effect that if [Abed] were pregnant, it would not be convenient for the office." Strickling could not recall the specifics of this conversation, except she confirmed telling DeHaro that she thought Abed was pregnant.

Abed also overheard a conversation about her pregnancy between Strickling and DeHaro.¹ Abed was standing outside the break room when she "heard [her] name come out of [Strickling's] mouth, and [she] heard pregnant in the same sentence." Abed heard DeHaro say she did not know whether Abed was pregnant. According to Abed, Strickling responded, "[W]ell, if she's pregnant, I don't want to hire her." Abed and DeHaro later exchanged text messages about what Abed had overheard, in which DeHaro apparently confirmed that Strickling had said she did not want to hire Abed because of her pregnancy. Based on a screenshot of one of these messages, it appears Abed overheard the conversation on May 28, 2015.

D. Abed Is Told There Is No Open Position for a Dental Assistant, but Another Extern Is Hired Shortly After Abed's Externship Ends.

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...