Judge: Alison Mackenzie, Case: 22SMCV00023, Date: 2023-05-04 Tentative Ruling
Case Number: 22SMCV00023 Hearing Date: May 4, 2023 Dept: 207
Background
Plaintiff and Cross-Defendant Thrive Psychology Group, Inc.
(“Thrive”) brings this action against Linda Baggett (“Baggett”) stemming from
Baggett’s prior employment as a psychologist with Thrive, a therapy and
counseling practice focusing on women’s wellness. Thrive alleges Baggett
breached the terms of her employment agreement and improperly solicited its
clients to depart Thrive and instead seek treatment with Baggett at a private
practice she planned to start after resigning from Thrive. Baggett has filed a
Cross-Complaint against Thrive, alleging causes of action for wrongful
termination, retaliation, unfair competition, defamation, declaratory judgment,
and Labor Code violations concerning the payment of wages and reimbursements. Thrive
now moves for summary adjudication of Baggett’s fifth cause of action for
wrongful termination in violation of public policy and sixth cause of action
for retaliation under Labor Code 1102.5. Baggett opposes Thrive’s motion.
Legal Standard
Motions
for summary judgment are governed by Code Civ. Proc. § 437c, which allows a
party to “move for summary judgment in an action or proceeding if it is
contended that the action has no merit or that there is no defense to the
action or proceeding.” (C.C.P. § 437c(a)(1).) The function of a motion for
summary judgment or adjudication is to allow a determination as to whether an
opposing party cannot show evidentiary support for a pleading or claim and to
enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.) Code Civ. Proc. § 437c(c) “requires the trial judge to
grant summary judgment if all the evidence submitted, and ‘all inferences
reasonably deducible from the evidence’ and uncontradicted by other inferences
or evidence, show that there is no triable issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary
judgment is to delimit the scope of the issues; the function of the affidavits
or declarations is to disclose whether there is any triable issue of fact
within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima
(1991) 231 Cal.App.3d 367, 381-382.) Courts “liberally construe the evidence in
support of the party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.” (Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)
A party may move for summary adjudication as to one or more
causes of action, affirmative defenses, claims for damages, or issues of duty
if that party contends there is no merit to the cause of action, defense, or
claim for damages, or there is no duty owed. (See CCP §437c(f)(1).) “A motion
for summary adjudication shall be granted only if it completely disposes of a
cause of action, an affirmative defense, a claim for damages, or an issue of
duty.” (Ibid.) A party moving for summary
adjudication bears the burden of persuasion that there are no triable issues of
material facts. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
850.
When
moving for summary judgment or adjudication, “A defendant or cross-defendant has met
his or her burden of showing that a cause of action has no merit if the party
has shown that one or more elements of the cause of action, even if not
separately pleaded, cannot be established, or that there is a complete defense
to the cause of action. Once the defendant or cross-defendant has met that
burden, the burden shifts to the plaintiff or cross-complainant to show that a
triable issue of one or more material facts exists as to the cause of action or
a defense thereto. The plaintiff or cross-complainant shall not rely upon the
allegations or denials of its pleadings to show that a triable issue of
material fact exists but, instead, shall set forth the specific facts showing
that a triable issue of material fact exists as to the cause of action or a
defense thereto.” (C.C.P.
§
437c(p)(2).)
In analyzing motions for summary
adjudication, the court must “view the evidence in the light most favorable to
the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley v. Oakshade Town
Center (2005) 135 Cal.App.4th 289, 294; Dore v. Arnold Worldwide, Inc.
(2006) 39 Cal.4th 384, 389 (Courts “liberally construe the evidence in support
of the party opposing summary judgment and resolve doubts concerning the
evidence in favor of that party”).) A motion for summary adjudication must be
denied where the moving party's evidence does not prove all material facts,
even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164
Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v.
Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).
Analysis
1. Wrongful Termination
“The elements of a claim for
wrongful discharge in violation of public policy are (1) an employer-employee
relationship, (2) the employer terminated the plaintiff’s employment, (3) the
termination was substantially motivated by a violation of public policy, and
(4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229
Cal.App.4th 144, 154.)¿¿
A claim for wrongful discharge for retaliation is analyzed
within the three-step analytical framework adopted by the United States Supreme
Court in McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792, 802–804. (Arteaga v. Brink’s,
Inc. (2008) 163 Cal.App.4th 327, 356 [“In reviewing
the summary adjudication of the retaliation claim, we apply the burden-shifting
test from McDonnell Douglas”]; Husman v. Toyota Motor Credit Corp.
(2017) 12 Cal.App.5th 1168, 1193 [“Like claims for discrimination, retaliation
claims are subject to the McDonnell Douglas burden-shifting analysis.”].)
Under the McDonnell Douglas framework, the plaintiff must first present
a prima facie case showing he or she engaged in some protected activity, was
fired, and the circumstances of that termination suggest a retaliatory motive.
This prima facie showing gives rise to a presumption of retaliation which the
defendant may rebut by articulating a legitimate, non-retaliatory reason for
the challenged action. If the defendant makes such a showing, the burden shifts
back to the plaintiff to produce substantial evidence showing (1) the
defendant’s stated reason for termination was untrue, pretextual, or not
credible; (2) evidence the defendant acted with retaliatory animus; or (3) some
combination of the two such that a reasonable trier of fact could conclude the
defendant engaged in intentional discrimination. (Ibid; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 111-112; Mamou
v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686; Hicks v. KNTV
Television, Inc. (2008) 160 Cal.App.4th 994.)
“Where the employee relies solely
on temporal proximity in response to the employer's evidence of a
nonretaliatory reason for termination, he or she does not create a triable
issue as to pretext, and summary judgment for the employer is proper.” (Arteaga,
supra, 163 Cal.App.4th at 357.) “Nor can the employee simply show the employer’s
decision was wrong, mistaken, or unwise. Rather, the employee must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its action that a reason able
factfinder could rationally find them ‘unworthy of credence.’” (Horn
v. Cushman & Wakefield Western (1999) 72 Cal.App.4th 798, 806-807
[internal quotations omitted].) To establish a non-retaliatory basis for
termination, an employer need not establish that its basis for termination was
factually correct, rather courts only require
that an employer honestly believed its reason for its actions, even if its
reason is foolish, trivial, or baseless. (Wills v. Superior Court
(2011) 195 Cal.App.4th 143, 172.)
Baggett’s cause of action for
wrongful discharge in violation of public policy is premised on the allegation
that Thrive terminated her employment because she was one of the signatories on
a November 5, 2021 letter sent by Thrive employees to Thrive management raising
complaints about working conditions and wages, and because her attorney sent
Thrive a letter on December 15, 2021, criticizing the conditions of Thrive’s
offboarding policy as illegal restraints on competition. Thrive argues that,
even if it is assumed Baggett can carry her burden of showing a prima facie
claim for wrongful discharge for retaliation, Thrive fired her on December 19,
2021 for legitimate, non-retaliatory reasons. Thrive states it fired Baggett because
it felt she had misrepresented her willingness to abide by the terms of the
offboarding policy and had breached her agreements with Thrive by accessing
Thrive’s confidential information in order to contact her patients and solicit
them to leave Thrive and follow her to a new private practice she was
establishing. (UMF No. 17.) The termination letter sent to Baggett states “This
letter serves to inform you that your employment at Thrive Psychology Group,
Inc. is terminated effective immediately. [¶] Company phone records and HIPAA
audit logs show what appears to be a violation of your ethical duties,
employment agreements, and legal obligations owed to Thrive Psychology Group,
Inc.” (Ex. 15 to Cooper Decl.)
Baggett’s arguments in opposition
primarily concern the merits of Thrive’s accusations as to her wrongful
conduct. For example, Baggett argues Thrive’s asserted bases for termination
are inconsistent with, or not supported by, the facts of this case. (Opp. at
12-13.) But the question is not whether Baggett actually breached any agreement
with Thrive, actually lied to Thrive, or actually solicited her patients to
leave Thrive, the question is whether Thrive had an honest belief that she had
done so. (See Wills, 195
Cal.App.4th at 172.) Thrive has submitted evidence that it terminated
Baggett’s employment on December 19, 2021, when it discovered she had called
all her patients without Thrive’s authorization and had not documented those
calls in its system. (UMF Nos. 13-17.)
The evidence before the Court
shows Thrive could have honestly believed from the circumstances that Baggett
had lied to it or had violated the confidentiality agreement she had signed
with Thrive. Baggett
informed Thrive she would accept the second of the two offboarding options
presented to her; that is, that she would continue to see the patients she saw
through Thrive based on a part-time employment agreement with Thrive, and
signed an agreement to that effect even though she had no intention of abiding
by that agreement. (UMF Nos. 7-11.) After giving Thrive the impression she
would continue treating Thrive clients as a part-time Thrive employee, she
waited until after close of business on Friday to begin calling her patients,
even though she knew she did not have Thrive’s approval to do so. (UMF No. 13.)
Those calls continued into Saturday. (UMF No. 13.) Baggett did not document
these calls in Thrive’s patient record system. (UMF No. 15.)
Baggett argues “The proximity of
the termination to Dr. Baggett’s complaints creates an irrefutable question of
fact for the jury.” (Opp. at 12.) But, as set forth above, temporal proximity
alone is insufficient to establish a triable issue of material fact as to
pretext. Baggett argues Thrive’s subsequent conduct toward her shows Thrive was
motivated by a retaliatory animus. (Opp. at 11.) She contends Thrive terminated
her without conducting an investigation, however, the evidence shows the Ruans
checked the phone and audit logs and patient files to confirm Baggett’s calling
her patients after hours prior to terminating her employment. (UMF Nos. 15-16.)
Baggett contends an email Thrive sent to Baggett’s patients after her termination
did not ethically terminate the relationship with clients, however, whether Thrive
complied with ethical guidelines in communicating with patients has no bearing
on whether Thrive had a retaliatory motive for firing her. On December 20,
2021, Thrive sent out a letter to its employees stating “Effective Dec 19th,
2021. Dr. Linda Baggett is no longer with Thrive. [¶] Unfortunately, it also
appears that Thrive may need to take legal action towards her in relation to her
departure. [¶] We are informing you directly, so that we can answer have any
questions or concerns you may have. Please do keep in mind that certain details
on this matter are confidential. [¶] If you are outreached by Linda or her
legal counsel, you are not obligated to speak with them if you do not wish.”
(Ex. 16 to Cooper Decl.) Baggett offers no explanation as to how this statement
demonstrates a retaliatory animus on the part of Thrive and the Court finds
Thrive’s reference to potential legal action further illustrates that Thrive
had an honest belief that Baggett had breached some obligation or policy toward
it. Baggett claims this letter was then followed by a more detailed letter
containing 11 pages of accusations against her, but this letter is not attached
as an exhibit to Baggett’s opposition and thus is not before the Court for
consideration in ruling on Thrive’s motion.
Baggett also argues a retaliatory
animus can be inferred from the fact that Thrive’s management considered the
December 15 letter from her attorney and November 5 joint letter to contain false
statements. (Opp. at 9.) Baggett cites no authority in support of this
argument, and the Court is not aware of any which suggests a retaliatory animus
can be inferred from the fact that an employer considered an employee’s
complaints to be untrue.
The Court finds Thrive has carried
its burden to put forth a legitimate, non-retaliatory basis for terminating
Baggett’s employment. Baggett has failed to carry the burden shifted to her to
establish the existence of a triable issue of material fact as to whether her
termination was motivated by a retaliatory animus or that Thrive’s stated
reasons for termination were merely pretextual. The Court thus GRANTS Thrive’s
motion for summary adjudication as to Baggett’s fifth cause of action for
wrongful termination in violation of public policy.
2. Retaliation
Thrive also moves for summary
adjudication on Baggett’s sixth cause of action for retaliation under Labor
Code § 1102.5(b). “The elements of a section 1102.5(b) retaliation cause of
action require that (1) the plaintiff establish a prima facie case of
retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation
for its acts, and (3) the plaintiff show this explanation is merely a pretext
for the retaliation. […] [A] prima facie case of retaliation […] must show (1)
she engaged in a protected activity, (2) her employer subjected her to an
adverse employment action, and (3) there is a causal link between the two.” (Patten
v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384
[internal citations omitted].)
The three-part framework of McDonnell
Douglas does not apply to retaliation claims under section 1102.5. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712 [“we now clarify that
section 1102.6, and not McDonnell Douglas, supplies the applicable framework
for litigating and adjudicating section 1102.5 whistleblower claims”].) Section
1102.6 “places the burden on the
plaintiff to establish, by a preponderance of the evidence, that retaliation
for an employee’s protected activities was a contributing factor in a contested
employment action. The plaintiff need not satisfy McDonnell Douglas
in order to discharge this burden. Once the plaintiff has made the required
showing, the burden shifts to the employer to demonstrate, by clear and
convincing evidence, that it would have taken the action in question for
legitimate, independent reasons even had the plaintiff not engaged in protected
activity.” (Id. at 718.) A plaintiff asserting a
claim under section 1102.5 thus does not need to show an employer’s stated
reason for termination was pretextual, rather a plaintiff only must show by a
preponderance of the evidence that retaliation for protected activity was a
contributing factor in the termination of his or her employment.
Thrive has
carried its burden in moving for summary adjudication by presenting evidence
that Baggett cannot carry her burden to show retaliation was a contributing
factor in her termination by a preponderance of the evidence. As discussed above
in the context of Baggett’s wrongful termination claim, the preponderance of
the evidence before the Court does not suggest retaliation was a factor in the
termination of her employment with Thrive. Courts have recognized “Circumstantial evidence such as proximity in time between
protected activity and alleged retaliation may establish a causal link” between
the two. (Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384,
394.) However, the Court finds proximity alone to be insufficient to create a triable
issue of material fact as to whether Baggett can carry her burden to show a
causal connection between the alleged protected activity and her termination.
While Baggett’s employment was
terminated just days after her attorney sent the December 15, 2021, letter to
Thrive, a significant intervening event occurred between the sending of this
letter and her termination: Baggett’s calling of her patients after hours on
Friday, December 17, and into Saturday, December 18. The timing of Baggett’s
phone calls to her patients makes it unreasonable to draw an inference that Thrive
fired Baggett in retaliation for the December 15 letter as opposed to her
unauthorized phone calls. Baggett does not dispute that she agreed on more than
one occasion to be bound by option 2 of the offboarding policy, and that she
“understood that the news of my departure was supposed to come from the company
and not me; that I was not supposed to discuss that with them on my own.” (UMF
Nos. 8-10, 13; Ex. 1 to Crosman Decl. at 231:5-8.) In essence, Baggett thus
does not dispute that she took actions contrary to Thrive policy after the
December 15 letter was sent and immediately before her termination. It is also
undisputed that Thrive discovered Baggett’s telephone calls on December 19 and
immediately terminated her employment that same day. On such facts, the Court
does not find a triable issue of material fact exists as to whether the
preponderance of the evidence shows a causal connection between the alleged
protected conduct and Baggett’s termination.
The Court further finds Thrive has
made a sufficient showing that it would have terminated Baggett anyway even if
the November and December letters had never been sent. The Court in Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367 found an employer had
satisfied its burden on summary judgment in showing it would have taken the
action in question for legitimate, independent reasons even had the plaintiff
not engaged in protected activity. There, the employer claimed it fired the
plaintiff for insubordination and not because of any protected activity. The
Court noted the plaintiff “never disputed the alleged acts of disrespectful and
insubordinate conduct” asserted by the defendant. (Id. at 385.) The
Court reasoned “Considering these and other facts in the record, we conclude
that the County's undisputed evidence would require a reasonable fact finder to
find it ‘highly probable’ that the County's decision to release Vatalaro from
probation would have occurred for legitimate, independent reasons even if
Vatalaro had not complained about working on low-level assignments.” (Id.
at 386.) Baggett similarly here does not dispute that Thrive’s policy
prohibited her from contacting her patients on her own to inform them of her
departure, or that she acted in contravention of this policy by doing exactly
that after hours and on the weekend. The Court finds this undisputed evidence
would require a reasonable fact finder to find it highly probable that Thrive
would have terminated her employment even if she had not signed the November
2021 letter or had her attorney send the December 2021 letter.
Thrive’s motion for summary
adjudication as to Baggett’s sixth cause of action for retaliation under Labor
Code § 1102.5 is GRANTED.
Conclusion
Thrive’s motion for summary adjudication is GRANTED.