23 Cal. App. 5th 726
Cal. Ct. App. 5th2018Background
- Abed completed an unpaid externship at Western Dental’s Napa office while pregnant (undisclosed). She received positive evaluations and expressed interest in a permanent dental assistant position in Napa.
- During the externship staff discovered prenatal vitamins in Abed’s purse; coworkers (Strickling, DeHaro) discussed her pregnancy and made comments suggesting pregnancy would be "inconvenient" and that they would not hire her if pregnant.
- About two weeks after discovery, Abed was told by her supervisor (Strickling) that there were no open dental assistant positions in Napa; Western Dental’s records show an open requisition was posted for Napa during that period and an extern was hired into that role soon after Abed’s externship ended.
- Abed never submitted a formal application for the Napa position and did not pursue other offices; she sued for pregnancy discrimination under FEHA §12940(a) and invasion of privacy. The trial court granted summary judgment for Western Dental, concluding Abed had not applied and failed to show futility.
- The Court of Appeal reversed as to the FEHA claim, holding triable issues existed whether Western Dental intentionally discouraged Abed from applying by falsely telling her no position was available; the invasion-of-privacy dismissal was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to submit an application bars a FEHA failure-to-hire claim | Abed: Not required where employer lied that no vacancy existed and thereby caused non‑application | Western Dental: Because Abed never applied, she cannot establish a prima facie failure-to-hire claim | Court: Non-application does not automatically bar the FEHA claim; employer lies that deter application can support a claim |
| Applicability of McDonnell Douglas burden-shifting | Abed: McDonnell Douglas is an evidentiary tool; prima facie elements are flexible and need not include an application where employer’s conduct deterred it | Western Dental: Traditional prima facie elements (including application) apply; futile‑gesture doctrine not shown | Court: McDonnell Douglas remains the framework but elements can vary; here evidence creates triable issues without formal application |
| Whether discriminatory remarks by a non-decisionmaker can create triable issue | Abed: Supervisor’s discriminatory comments and her role in telling Abed there was no opening are sufficient to infer intentional discrimination | Western Dental: Strickling lacked hiring authority; no evidence decisionmakers knew of pregnancy or animus | Court: A significant participant’s discriminatory animus (even if not ultimate decisionmaker) can raise an inference of discriminatory hiring conduct when that person effectuated the deterring misrepresentation |
| Whether summary judgment was appropriate | Abed: Evidence (false statement about vacancy; posted requisition; quick hire of another extern; comments about pregnancy) creates triable issues of discriminatory intent | Western Dental: Evidence shows no application, and other explanations (lack of interest, alternative positions) justify summary adjudication | Court: Reversed in part — triable issues exist; summary adjudication improper on FEHA claim |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (framework for burden‑shifting in discrimination cases)
- Teamsters v. United States, 431 U.S. 324 (1977) (employer practices can deter applications; non‑applicants may be victims of discrimination)
- Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317 (2000) (discussing McDonnell Douglas in FEHA context)
- Serri v. Santa Clara University, 226 Cal.App.4th 830 (2014) (summary judgment standards and application of McDonnell Douglas to FEHA claims)
- EEOC v. Metal Service Co., 892 F.2d 341 (3d Cir. 1990) (failure to formally apply does not bar claim if plaintiff reasonably conveyed interest or was deterred)
- Paxton v. Union Nat. Bank, 688 F.2d 552 (8th Cir. 1982) (applicant deterred by employer’s failure to post vacancy could make prima facie case)
- Rodgers v. Peninsular Steel Co., 542 F.Supp. 1215 (N.D. Ohio 1982) (non‑informed non‑applicant who was improperly not notified attains presumption of applicant)
- Curran v. Portland School Committee, 435 F.Supp. 1063 (D. Me. 1977) (failure to apply does not preclude relief where discrimination made application impossible)