ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JAMES WARE, Chief Judge.

I. INTRODUCTION

Nina Fu ("Plaintiff") brings this action in diversity against Walker Parking Consultants ("Defendant") alleging, inter alia, violations of California's Fair Employment and Housing Act ("FEHA"), California Government Code §§ 12940 et seq., and California's Pregnancy Disability Leave Law ("PDLL"), California Government Code § 12945. Plaintiff alleges that Defendant unlawfully discriminated against her on the basis of her pregnancy and unlawfully refused to reinstate her following her pregnancy disability leave, in violation of California law.

Presently before the Court is Defendant's Motion for Summary Judgment.1 The Court conducted a hearing on July 11, 2011. Based on the papers submitted to date and oral argument, the Court GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment.

II. BACKGROUND

A. Undisputed Facts

Plaintiff is a resident of Union City, California.2 Defendant is a Michigan corporation licensed to do business in the state of California. (Id. ¶ 2.) In December of 2007, Plaintiff began working in Defendant's San Francisco office in the position of Design Engineer III.3 In March of 2008, Defendant hired Sanaz Ghahani ("Ghahani") in its San Francisco office in the position of Design Engineer II. (Id. at 7-8; Id. at 3.)

On January 2, 2009 Plaintiff began her maternity leave, and Plaintiff gave birth on January 8, 2009. (Motion at 12; Opp'n at 7.) Prior to going on maternity leave, Plaintiff and Defendant agreed that she would return to work on May 18, 2009. (Id. at 10; Id.) On March 17, 2009, an employee of Defendant called Plaintiff to inform her that she was being laid off. (Id. at 14; Id. at 8.) In September of 2009, Defendant laid off Ghahani as well. (Id. at 15; Id. at 16.)

B. Procedural Background

On September 24, 2009, Plaintiff filed her Complaint in the Superior Court of the County of San Francisco.4 Plaintiff's Complaint alleges nine Causes of Action as follows: (1) Discharge and Discrimination in Compensation and the Terms, Conditions and Privileges of Employment Because of Pregnancy, Cal. Gov.Code §§ 12940(a) & 12926(p); (2) Unlawful Denial of Reasonable Accommodation for Conditions Related to Pregnancy, Cal. Gov.Code §§ 12945(a) & 12945(b); (3) Unlawful Retaliation, Cal. Gov.Code § 12940(h); (4) Failure to Take All Reasonable Steps Necessary to Prevent Discrimination from Occurring, Cal. Gov.Code § 12940(k); (5) Unlawful Denial of Leave Pursuant to the California Family Rights Act, Cal. Gov.Code § 12945.2; (6) Unlawful Denial of Leave Pursuant to the California Pregnancy Disability Leave Law, Cal. Gov.Code § 12945; (7) Wrongful Termination in Violation of Public Policy; (8) Intentional Infliction of Emotional Distress; (9) Failure to Engage in the Interactive Process, Cal. Gov.Code §§ 12940 et seq.5 Plaintiff's Complaint also prays for punitive damages. (Id., Prayer for Relief.) On October 23, 2009, Defendant removed the action to this Court on the grounds that diversity exists between the parties and the amount in controversy exceeds $75,000. (Removal Notice ¶¶ 4-11.)

Presently before the Court is Defendant's Motion for Summary Judgment.

III. STANDARDS

Summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The purpose of summary judgment "is to isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The moving party "always bears the initial responsibility of informing the district court of the basis for its motion. . . ." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (a) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (b) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it." Fed.R.Civ.P. 56(e).

When evaluating a motion for summary judgment, the court views the evidence through the prism of the evidentiary standard of proof that would pertain at trial. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court draws all reasonable inferences in favor of the nonmoving party, including questions of credibility and of the weight that particular evidence is accorded. See, e.g., Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). The court determines whether the non-moving party's "specific facts," coupled with disputed background or contextual facts, are such that a reasonable jury might return a verdict for the non-moving party. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.1987). In such a case, summary judgment is inappropriate. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. However, where a rational trier of fact could not find for the non-moving party based on the record as a whole, there is no "genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

IV. DISCUSSION

Defendant moves for summary judgment as to all of Plaintiff's claims on the grounds that: (1) Plaintiff's cause of action for discrimination under the FEHA fails because she has no evidence of discriminatory intent or of pretext; (2) Plaintiff's cause of action for retaliation in violation of the FEHA fails because she has no evidence of pretext; (3) Plaintiff's cause of action for failure to prevent discrimination fails because she was not discriminated against; (4) Plaintiff's cause of action for failure to provide leave in violation of the PDLL fails because she was not disabled when she was laid off; (5) Plaintiff's cause of action for wrongful termination in violation of public policy fails because the claims on which it is predicated lack merit; (6) Plaintiff's cause of action for intentional infliction of emotional distress fails because the claims on which it is predicated lack merit; and (7) Plaintiff's claim for punitive damages fails because she has no evidence of malice, oppression or fraud. (Motion at 16-25.)

Plaintiff responds that: (1) her cause of action for discrimination survives, because she meets her prima facie burden and can show pretext; (2) her cause of action for unlawful retaliation survives for the same reasons that her first cause of action, for discrimination, survives; (3) her cause of action for failure to prevent discrimination survives for the same reasons that her first cause of action, for discrimination, survives; (4) her cause of action for failure to provide leave in violation of the PDLL survives because Defendant cannot prove by a preponderance of the evidence that the decision to lay her off was unrelated to her pregnancy disability leave; (5) her cause of action for wrongful termination in violation of public policy survives, because her previous FEHA claims survive; (6) her cause of action for intentional infliction of emotional distress survives, because her previous FEHA claims survive; and (7) her claim for punitive damages survives, because she has "ample evidence" that Defendant's actions were "malicious." (Opp'n at 12-22.) The Court considers each ground in turn.

A. Plaintiff's Claims for Discrimination Under the FEHA

Defendant contends that Plaintiff's claim that she was unlawfully discriminated against under the FEHA fails, on the grounds that she lacks direct evidence of discriminatory animus and cannot establish that the reasons provided by Defendant for her layoff are pretextual. (Motion at 16-22.) Plaintiff responds that she has both direct evidence of Defendant's discriminatory animus, and also evidence showing that the reasons provided by Defendant for her layoff are pretextual. (Opp'n at 12-18.)

1. Plaintiff's Direct Evidence

Plaintiff contends that she has direct evidence of Defendant's discriminatory animus, in the form of statements from employees of Defendant which show that they were "preoccupied with Plaintiff's protected status as a new mother" at the time they were discussing laying her off. (Opp'n at 12-13.) Defendant responds that Plaintiff has no direct evidence of discriminatory animus, because: (1) the statements in question merely address the timing of Plaintiff's layoff rather than its reason; and (2) the statements actually show that Plaintiff was treated more favorably than other employees, in that her layoff date was deferred.6

"The prohibition of sex discrimination in [the] FEHA encompasses . . . discrimination based on pregnancy." Scott v. WinCo Foods, Inc., No. 2:09-cv-01238-MCE, 2011 WL 846190, at *3 (E.D.Cal. Mar. 8, 2011) (citing Cal. Gov.Code § 12926(p)). When a plaintiff offers direct evidence of an employer's discriminatory motive, "a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.1998).7 "Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Id. at 1221 (citation omitted).

Here, Plaintiff offers the following as direct evidence of Defendant's discriminatory animus: (1) one of Defendant's employees stated that the "timing [of Plaintiff's layoff] is different from [that of others who were being laid off at the same time] due to her upcoming maternity leave";8 and (2) another of Defendant's employees stated that Defendant "planned on laying [Plaintiff] off shortly after she returned from her maternity leave," but she was "having second thoughts" because employees "will only see a new mommy being laid off while on leave," and stated that "the longer we postpone an action like this, the more likely something crops up in the meantime to make things more difficult for us."9 (Opp'n at 12-13.)

Upon review, the Court finds that Plaintiff offers no direct evidence of Defendant's discriminatory animus. The statements offered by Plaintiff do not indicate that discriminatory animus was responsible for Defendant's decision to lay Plaintiff off; rather, they merely refer to the timing of the layoff. To conclude that these statements constitute evidence that discriminatory animus was behind Defendant's decision to lay Plaintiff off would require an inference from the proposition that Plaintiff's maternity leave played a role in the timing of her layoff to the proposition that Plaintiff's status as a pregnant woman motivated Defendant's decision to lay her off. However, "direct evidence" of discriminatory motive is evidence which proves the fact of that discriminatory motive "without inference or presumption." Godwin, 150 F.3d at 1221 (emphasis added).

2. Plaintiff's Evidence of Pretext

Defendant contends that, under a burden-shifting analysis, Plaintiff is unable to show that Defendant's proffered reasons for laying her off are pretextual. (Motion at 18-22.) Plaintiff responds that she has "a plethora of facts" showing that Defendant's proffered reasons for laying her off are pretextual. (Opp'n at 13-18.)

In evaluating circumstantial evidence of discrimination, courts use the burden-shifting analysis set forth by the Supreme Court. See Rudwall v. Blackrock, Inc., No. C-09-5176 TEH, 2011 WL 767965, at *5 (N.D.Cal. Feb. 28, 2011) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Under that analysis, a plaintiff must first make out a prima facie case by showing that: (1) she was a member of a protected class; (2) she was performing competently in the position she held; (3) she suffered an adverse employment action, such as termination; and (4) "some other circumstance suggests discriminatory motive." See id. (citing Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 355, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000)). The plaintiff's prima facie burden "is not onerous." Id. "Once a plaintiff has established a prima facie case, the burden shifts to the employer to produce some evidence that it had legitimate, nondiscriminatory reasons for the employment decision." Jackson v. Simon Property Group, Inc., No. C-10-2521 JCS, 795 F.Supp.2d 949, 959, 2011 WL 2446299, at *9 (N.D.Cal. June 17, 2011) (citation omitted). In this context, "legitimate" reasons proffered by an employer are "reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination." Guz, 24 Cal.4th at 358, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (emphasis in original). If the reasons proffered by an employer are nondiscriminatory, they "need not necessarily have been wise or correct." Id. Once an employer produces such evidence, a plaintiff "can survive summary judgment only by providing `significant, substantial evidence of pretext.'" Jackson, 795 F.Supp.2d at 959, 2011 WL 2446299, at *9 (quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983)).

Here, Defendant concedes that Plaintiff can establish the first three elements of a prima facie case. (Motion at 16.) Thus, the Court only considers the fourth element, namely, whether Plaintiff can show that "some other circumstance suggests discriminatory motive." See Rudwall, 2011 WL 767965, at *5.

To make out her prima facie case that she was discriminated against because she was pregnant, Plaintiff offers evidence showing: (1) that she was the only pregnant employee Defendant employed in San Francisco during the relevant time period; and (2) that Defendant chose to lay off Plaintiff rather than Ghahani (who was not pregnant), even though Plaintiff was senior to Ghahani.10 Because a plaintiff's prima facie burden "is not onerous," this suffices to make out a prima facie case. See Rudwall, 2011 WL 767965, at *5.

Once Plaintiff has established her prima facie case, the burden shifts to Defendant "to produce some evidence that it had legitimate, nondiscriminatory reasons for the employment decision." See Jackson, 795 F.Supp.2d at 959, 2011 WL 2446299, at *9. Here, Defendant offers the following evidence that it had legitimate, nondiscriminatory reasons for its decision to lay off Plaintiff:

Based on this evidence, the Court finds that Defendant satisfies its burden to produce evidence of legitimate, nondiscriminatory reasons for its decision to lay off Plaintiff. Those reasons consist of: (1) the impact of the economic downturn on Defendant; and (2) Defendant's belief that it should retain Ghahani rather than Plaintiff because Ghahani was more skilled in the use of Revit.

Because Defendant has produced evidence that it had legitimate, nondiscriminatory reasons for laying off Plaintiff, the burden shifts back to Plaintiff to provide "significant, substantial evidence of pretext." Steckl, 703 F.2d at 393. Plaintiff "can survive summary judgment only by providing" such significant, substantial evidence. Jackson, 795 F.Supp.2d at 959, 2011 WL 2446299, at *9. Here, Plaintiff concedes that Defendant experienced "an impact from the recent economic troubles." (Opp'n at 15.) Thus, Plaintiff's contention that Defendant's explanation is pretextual centers on Defendant's claim that it decided to lay off Plaintiff rather than Ghahani because Ghahani was more skilled in the use of Revit.20 Here, Plaintiff offers the following evidence that Defendant's proffered reasons are pretextual:

Upon review, the Court finds that this does not amount to "significant, substantive evidence" that Defendant's proffered reasons for laying off Plaintiff rather than Ghahani are pretextual. Viewed in the light most favorable to the non-moving party, Plaintiff's evidence goes only to the extent to which Defendant was using Revit.25 In regard to that evidence, first, the Court finds that Plaintiff misstates the evidence when she contends that it shows that "Revit was fairly unimportant to [Defendant's] operations" up to the point at which Plaintiff was laid off.26 In fact, the evidence cited by Plaintiff does not show that Revit was unimportant to Defendant, but only that Defendant was still in the early stages of implementing Revit.27 Second, this evidence does not show that Defendant's proffered reasons for laying off Plaintiff rather than Ghahani were discriminatory.28 In the absence of any evidence whatsoever that discrimination was the true cause of Defendant's decision to lay off Plaintiff, summary judgment is appropriate. See Guz, 24 Cal.4th at 361, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (stating that "an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory").

Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's First Cause of Action for unlawful discrimination under the FEHA.29

B. Plaintiff's Claim for Failure to Provide Leave Under the PDLL

Defendant contends that Plaintiff was not on PDLL-covered leave at the time of her layoff, which means that she was not protected by the statute at the time she was laid off. (Motion at 23.) Plaintiff responds that she and Defendant agreed that she would be reinstated to work on May 18, 2009, but she was terminated on March 17, 2009, which means that she was protected by the PDLL at the time of her layoff. (Opp'n at 18-21.)

California's Pregnancy Disability Leave Law30 makes it unlawful for an employer to refuse to allow a female employee disabled by pregnancy, childbirth, or related medical conditions to take a leave for a reasonable period of time not to exceed four months and thereafter return to work. Cal. Gov.Code § 12945(a). Upon granting a pregnancy disability leave, an employer "shall guarantee to reinstate the employee to the same position, or . . . to a comparable position." 2 Cal.Code Regs. § 7291.9(a). California law defines "pregnancy disability leave" as "any leave, whether paid or unpaid, taken by an employee, for any period(s) up to a total of four months during which she is disabled by pregnancy." Id. § 7291.2(o). A woman is "disabled by pregnancy" if, in the opinion of her health care provider, she is unable because of pregnancy to work at all or is unable to perform any one or more of the essential functions of her job or to perform those functions without undue risk to herself, the successful completion of her pregnancy, or to other persons. Id. § 7291.2(g). It is unlawful for any employer to refuse to honor a guarantee of reinstatement unless the refusal is justified by certain specified defenses, including the defense that "the employee would not otherwise have been employed in her position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking a pregnancy disability leave." Id. §§ 7291.9(a) & (c)(1)(A). Such a defense must be proved by the employer by a preponderance of the evidence. Id. § 7291.9(c)(1).

Here, Defendant offers the following evidence in support of its contention that Plaintiff was not on pregnancy disability leave, and thus was not covered by the PDLL, on March 17, 2009,31 the date on which she was laid off:

In response, Plaintiff offers evidence that she and Defendant "agreed that May 18, 2009 would be the date of Plaintiff's reinstatement" from leave.33

In light of the parties' conflicting evidence, the Court finds that there are material issues of fact regarding whether Plaintiff was covered by the PDLL at the time she was laid off. Defendant's reliance on De Costa v. NorthStar Risk Management is misplaced. See Reply at 11-12 (discussing De Costa, No. A118718, 2008 WL 4329288 (Cal.Ct.App. Sept. 23, 2008)). The plaintiff in De Costa took a leave which "exceeded the four-month maximum dictated by [the PDLL]," which, the court found, "disqualifie[d] her under the plain language of the statute." Id. at *10. Here, on either Plaintiff's or Defendant's account, Plaintiff was laid off less than four months after she began her leave. It is true that the De Costa court stated that the plaintiff's argument in that case "confuse[d] maternity leave with the disability leave protected by" the PDLL. Id. at *11. However, because the opinion in De Costa was unpublished, the Court declines to rely on it as having precedential value.

Accordingly, the Court DENIES Defendant's Motion for Summary Judgment as to Plaintiff's Sixth Cause of Action under the PDLL.34

V. CONCLUSION

The Court GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment as follows:

On September 19, 2011 at 10 a.m., the parties shall appear for a Preliminary Pretrial Conference. On or before September 9, 2011, the parties shall submit a Joint Preliminary Pretrial Conference Statement including, inter alia, a good faith proposed schedule for trial.