Facts

Pacific Gas and Electric Co. (PG&E) employed plaintiff Susan Henderson since 1983. Her job duties included responsibilities related to payroll, timekeeping, and reporting, along with many other duties unrelated to timekeeping. In November 2005, PG&E began an investigation related to Henderson and alleged misconduct pertaining to her time records. In early 2006, Henderson was placed on full medical disability. While on disability leave, PG&E terminated Henderson's employment. A PG&E fact-finding committee determined that the termination was warranted.

The plaintiff filed a complaint for wrongful termination in which she alleged disability discrimination, gender discrimination, and retaliation.

PLAINTIFF'S CONTENTIONS:
Henderson contended that she was wrongfully terminated based on disability discrimination, gender discrimination, and in retaliation for filing a disability claim.

The facts according to the plaintiff are as follows: Henderson was employed by PG&E for 23 years. PG&E began an investigation regarding an allegation that Henderson failed to clock out after leaving work on three occasions. The allegation was started after a female co-worker complained to plaintiff's supervisor that plaintiff was not required to request time off as early as the female co-worker. After being placed on full medical disability, PG&E terminated Henderson's employment based on a determination that she had been absent without permission, had received $460 in unearned pay, and had falsified time records. While the fact-finding committee determined that plaintiff behaved inappropriately, the union never examined or investigated claims that male employees were not reprimanded or terminated for worse conduct.

DEFENDANT'S CONTENTIONS:
PG&E contended it had a legitimate, non-discriminatory, and non-retaliatory reason for the termination decision, specifically the plaintiff's falsification of time records and receiving unearned pay.

PG&E further contended that it did not fail to make reasonable accommodations related to plaintiff's disability, because she was placed on full disability in accordance with the treating physician's evaluation that plaintiff was "unable to work." It also contended that its male employees did not receive preferential treatment, and that it did not retaliate against plaintiff.

The facts according to the defense are as follows: In November 2005, PG&E learned of alleged wrongdoing by plaintiff when a female co-worker complained to plaintiff's supervisor that plaintiff was absent without permission on several occasions and falsified her time records. PG&E immediately commenced an investigation into the alleged wrongdoing.

In early 2006, while the investigation was pending, the plaintiff reported to work and presented a doctor's note placing her on full disability for carpal tunnel syndrome, which indicated she was unable to work. While on disability leave, PG&E terminated the plaintiff's employment after the investigation resulted in a determination that plaintiff had received unearned pay and falsified her time records.

After plaintiff's union filed a grievance on her behalf, a fact-finding committee, which included representatives of PG&E and of plaintiff's union, unanimously determined that plaintiff's discharge was appropriate because: "The grievant, as a timekeeper, should have been intimately aware of the importance of accurate time reporting. The three incidents, considered together, indicate a pattern of inappropriate behavior which warranted the discharge."

Settlement Discussions

The plaintiff made no settlement demand prior to the MSC, at which time she made a demand in the high six figures plus reinstatement of benefits. Settlement discussions ensued but no settlement was reached.

Result

Summary judgment was granted in favor of PG&E.

Other Information

According to plaintiff's counsel: PG&E filed for summary judgment in support of its contention that it had legitimate, nondiscriminatory, and non-retaliatory reasons for the termination. Henderson's opposition and supporting documents were due on Sept. 8, 2008. Without counsel's knowledge, consent, or authority, counsel's long time law clerk, who was to be hired as an associate at the firm in November 2008 once she passed the bar, removed the file and took it with her out of state on an Alaskan cruise with the intention of filing the opposition and supporting documents. The law clerk managed to only file plaintiff's memorandum of points and authorities in opposition and plaintiff's opposition to defendant's separate statement through a service, but was unable to file any supporting documents. Counsel was unsure whether any or all of the supporting documents had been filed, so he filed a declaration to that effect, requested a short extension of time, and attached a witness' statements that had recently been obtained by plaintiff's investigator. On Sept. 15, 2008, when the law clerk returned with the file, counsel caused all the supporting documents to be filed and served. On Sept. 22, 2008, the court denied counsel's request for the extension of time, struck the late filed papers, and granted the summary judgment motion, "on the ground that no timely opposition was filed to dispute the Defendants' evidence..." The court determined that the ex parte declaration did not set forth the requisite good cause needed to continue the motion. The court did not consider the evidence presented by Henderson that similarly situated male employees had not been terminated for similar conduct. The court also refused to allow three to four depositions to proceed that were crucial to plaintiff establishing pretext to oppose defendant's motion for summary judgment. According to defense counsel: At plaintiff's deposition, PG&E learned for the first time that in November 2005, the plaintiff shredded and recreated her 2005 annual timecard, omitting vital information from the recreated timecard in the process. This conduct violated PG&E's published company policies. PG&E moved for summary judgment contending it had legitimate, nondiscriminatory, and nonretaliatory reasons for the termination based upon its findings of misconduct by plaintiff, said reasons having been justified and bolstered by plaintiff's own deposition testimony. Despite numerous continuances of the trial date and discovery cutoff, and despite a continuance of the hearing on PG&E's motion for summary judgment to allow plaintiff to conduct further discovery, the plaintiff failed to file a timely opposition to the motion, and failed to seek relief prior to the date the opposition was due. The court denied plaintiff's ex parte application for a continuance of the hearing date as untimely based on a finding that any neglect in failing to timely oppose the motion was not excusable. The court struck plaintiff's late-filed opposition papers, and granted summary judgment on the merits. Henderson's motion for new trial and a motion seeking relief pursuant to Code of Civil Procedure section 473 (for failure to timely file the supporting documents to her opposition to the motion for summary judgment) were denied. A notice of intent to appeal was filed on May 29, 2009. FILING DATE: March 23, 2007.