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Abed v. Western Dental Services, Inc.

Court of Appeal of California, First Appellate District, Division One

May 23, 2018, Opinion Filed



 [**245]  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 [***2]  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.

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 [*732]  assistant. [***3]  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.

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23 Cal. App. 5th 726 *; 233 Cal. Rptr. 3d 242 **; 2018 Cal. App. LEXIS 475 ***; 2018 WL 2328418

ADA ABED, Plaintiff and Appellant, v. WESTERN DENTAL SERVICES, INC., Defendant and Respondent.


Prior History:  [***1] Superior Court of Napa County, No. 26-67269, Rodney G. Stone, Judge.


Dental, discriminatory, hire, facie, pregnant, externship, externs, pregnancy, triable, candidates, animus, filled, intentionally, nondiscriminatory, failure-to-hire, website, defeat, purse

Labor & Employment Law, Gender & Sex Discrimination, Scope & Definitions, Parental Rights & Pregnancy, Evidence, Burdens of Proof, Burden Shifting, Employment Practices, Adverse Employment Actions, Discharges & Failures to Hire, Civil Procedure, Summary Judgment, Movant Persuasion & Proof, Judgments, Entitlement as Matter of Law, Nonmovant Persuasion & Proof, Appeals, Summary Judgment Review, Standards of Review, Entitlement as Matter of Law, Appropriateness, Disparate Treatment, Burdens of Proof