I respectfully dissent.
Because plaintiff Anne Trop presented direct evidence of discrimination (Trans World Airlines, Inc. v. Thurston (1985)469 U.S. 111, 121 [83 L.Ed.2d 523, 105 S.Ct. 613]), the "McDonnell Douglas" test (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817]; Guz v.Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 [100 Cal.Rptr.2d 352, 8 P.3d 1089]; see Morgan v. Regents ofUniversity of California (2000) 88 Cal.App.4th 52, 67-68 [105 Cal.Rptr.2d 652] [direct evidence is evidence which proves a fact without inference or presumption] (Morgan)) is not applicable. Evidence of the statements of Betty Thomas (Trop's supervisor at Tall Trees Productions) at Trop's termination, satisfied the direct evidence standard for statements disclosing a discriminatory bias against pregnant employees (Kennedy v.Schoenberg, Fisher Newman, Ltd. (7th Cir. 1998) 140 F.3d 716,724 (Kennedy); Geier v. Medtronic, Inc. (7th Cir. 1996)99 F.3d 238, 242 (Geier)).
According to Trop, after Thomas fired her, Thomas asked, "How could you possibly be my assistant and be pregnant? How did you think that ever was going to work?" When Trop said, "Women get pregnant every day," Thomas replied, "Well, that was never going to happen here. It would never happen here." For purposes of summary judgment consideration, the evidence of these statements discloses a discriminatory bias against pregnant employees that was "contemporaneous" with Trop's termination within the meaning of Kennedy, supra, 140 F.3d 716 and Geier, supra,99 F.3d 238. *Page 1151
Trop also submitted sufficient evidence to raise a triable issue of fact as to whether Thomas, at the time she decided to terminate Trop, knew Trop was pregnant. Thomas claims she decided to fire Trop at the beginning of November 2002. Her claim is supported by her own deposition testimony and declaration, and the declarations of Tony Peyrot (Tall Trees Productions's business manager) and Jenno Topping (a producer for Tall Trees Productions). Yet, despite this purported decision to fire Trop, Thomas allowed Trop to take a vacation that Thomas viewed as unusually long, at a time — the end of December 2002 and beginning of January 2003 — when Thomas claims she was particularly busy. Moreover, Thomas did not fire Trop in November. She fired her at the end of January 2003, nearly three months later. According to Thomas and Topping, Thomas's reasons for firing Trop included Trop's late return from her vacation, something that took place after Thomas claims she had already decided to fire Trop in November. Thus, the evidence of when Thomas decided to fire Trop is equivocal.
According to Trop, she told Thomas in October 2002 that she was trying to get pregnant. She also said that in December 2002, she suggested to Thomas that she was pregnant. Such evidence reasonably supports the conclusion that Thomas knew in October that Trop was trying to become pregnant and that she knew in December that Trop was pregnant, or at least that Trop believed she was pregnant. The suggestion may be subject to dispute, but at the summary judgment stage, all inferences should be viewed in favor of the party against whom the summary judgment motion is made. (Crouse v. Brobeck, Phleger Harrison (1998)67 Cal.App.4th 1509, 1520 [80 Cal.Rptr.2d 94].)
Defendants did not conclusively establish that Thomas decided to fire Trop in November 2002 and that she did not learn of Trop's pregnancy until after Trop's termination. Accordingly, the resolution of these facts is a matter for the finder of fact at trial. (Iverson v. Muroc Unified School Dist. (1995)32 Cal.App.4th 218, 222-223 [38 Cal.Rptr.2d 35].)
Trop also raised a triable issue of fact as to whether the alleged reasons for her termination were pretexts for the termination. As noted above, defendants claim that Thomas decided to fire Trop at the beginning of November 2002. Yet according to Thomas and Topping, one of Thomas's reasons for firing Trop — Trop's late return from her vacation — occurred in January 2003. Also, even if Thomas's statements at Trop's termination are not direct evidence of discrimination, they constitute evidence of a "discriminatory animus" against pregnant employees and establish pretext. (Morgan, supra, 88 Cal.App.4th at p. 75.) *Page 1152
Trop's case may not appear strong. Nevertheless, I believe she has submitted enough evidence to have her case tried by a finder of fact — judge or jury.
Appellant's petition for review by the Supreme Court was denied August 24, 2005. *Page 1153