In Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, an internet company in financial difficulty hired a new chief executive officer who brought in a turn-around specialist. Upper management was dissatisfied with the marketing group in the small business unit, for which the plaintiff performed direct marketing services. When consolidation of units, including plaintiff's, was planned, the turn-around specialist was asked to list employees to be retained. The CEO had told the chief financial officer that the plaintiff, who was pregnant, had poor attendance and used the term "'checked out'" to refer to her poor attendance and attitude. (Id. at p. 1093.) Plaintiff was terminated with others not retained in the restructuring. The employer took the position that plaintiff's position had been eliminated. Kelly sued for employment discrimination based on pregnancy. In opposition to summary adjudication, she presented evidence of very high performance evaluations. Her former manager said he had included her in the list for retention in the restructuring because her knowledge and skills made her the "only person capable of managing" the reduced group. (Kelly, supra, 135 Cal.App.4th at p. 1094.) In a conversation with the manager about this recommendation, the CEO repeated his comments that plaintiff had mentally "'checked out'" and questioned whether she was really doing her job. (Id. at p. 1093.) The manager responded that this criticism was untrue and defended plaintiff's commitment, hard work and singular ability to assume the manager role. (Ibid.) Another member of the senior management team also strongly recommended plaintiff's retention, saying that she was extremely competent and a tremendous asset to the defendant. (Id. at p. 1095.) In response, the CEO repeated his comment that plaintiff had "'checked out.'" (Ibid.) There was evidence that the turn-around specialist took over plaintiff's position, despite the defendant's claim that the position had been eliminated. (Ibid.) Plaintiff met with the CEO to discuss why she had been terminated. The CEO lied and said that she had not been on her former manager's retention list. (Id. at p. 1096.) He said her position had been eliminated. The Court of Appeal in Kelly concluded that the evidence submitted by plaintiff raised triable issues of material fact precluding summary adjudication. (Kelly, supra, 135 Cal.App.4th at p. 1101.) There was sufficient evidence that the reasons proffered by the defendant were pretextual. Plaintiff had a record of excellence attested to by two high executives and both of these executives strongly recommended plaintiff's retention. The court also relied on the statements made by the CEO that plaintiff had "'checked out: '" "This reaction and terminology are not, as the trial court suggested, unamenable to signifying a discriminatory animus. Indeed, in at least one instance when he used the phrase concerning plaintiff, the CEO also referred in some fashion to her pregnancy. Moreover, even if the language be deemed nondiscriminatory in isolation, there is no doubt that the CEO's manifest attitude toward plaintiff's retention was bluntly negative, in vivid contrast to the views and assessments of those executives who worked with her." (Id. at p. 1099.) The Kelly court concluded that the evidence that defendant's reasons were pretextual also supported an inference that the actual reason for her termination was discrimination based on plaintiff's pregnancy. It found direct evidence of discriminatory intent in the CEO's statements that plaintiff had "'checked out.'" (Kelly, supra, 135 Cal.App.4th at p. 1101.) The court reasoned: "Under the circumstances, that plaintiff was about seven months pregnant and was expected to take her allotted three months' pregnancy leave, the CEO's 'checked out' comments could reasonably be understood as referring to some combination of plaintiff's commitment to take the leave, and a temporary diversion of her attention attendant to her condition. In other words, the CEO could be seen as saying that plaintiff's pregnancy and upcoming leave disqualified her for retention. And of course a senior manager testified that the CEO directly connected his 'checked out' remarks to plaintiff's pregnancy." (Ibid.) The court rejected the defendant's arguments that the CEO's remarks were too vague or neutral to raise an inference of discriminatory animus or that they were merely "stray" remarks. (Ibid.)