Judge Armen Tamzarian, Case Number: 22STCV08394, Date: 2023-08-18 Tentative Ruling

Judge: Armen Tamzarian, Case: 22STCV08394, Date: 2023-08-18 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 22STCV08394 Hearing Date: August 18, 2023 Dept: 52

Defendant Dignity Community Care’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Defendant Dignity Community Care dba California Hospital Medical Center (Dignity) moves for summary judgment or, in the alternative, summary adjudication of all of plaintiff Boae Lee’s causes of action and her claim for punitive damages.

Requests for Judicial Notice

Defendant requests judicial notice of the complaint filed in another action, Jennifer Medvin v. Dignity Health, et al., No. 20STCV07382. Plaintiff requests judicial notice of two other documents from that action: (1) notice of settlement and (2) request for dismissal of the entire action. All three documents are court records whose existence and legal effects are subject to judicial notice under Evidence Code § 452(d). (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120.)

All three requests for judicial notice are granted.

Evidentiary Objections

Plaintiff makes 15 objections to defendant’s evidence. Objection Nos. 1-14 are overruled. Objection No. 15 is sustained.

Legal Standard

Summary judgment should be granted where no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (CCP § 437c(c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.) Courts use a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

For employment discrimination and retaliation claims, “California follows the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 … to determine whether there are triable issues of fact for resolution by a jury.” (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109.) First, “[i]f the employee successfully establishes [the] elements and thereby shows a prima facie case exists, the burden shifts to the employer to provide evidence that there was a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces evidence showing a legitimate reason for the adverse employment action, the presumption of retaliation drops out of the picture, and the burden shifts back to the employee to provide substantial responsive evidence that the employer’s proffered reasons were untrue or pretextual.” (Ibid., citations and internal quotes omitted.)

1st Cause of Action: Retaliation

Defendant is entitled to summary adjudication of this cause of action. The Fair Employment and Housing Act (FEHA) provides that it is unlawful for an employer to “discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under” FEHA. (Gov. Code, § 12940(h).) “The elements of a cause of action for retaliation in violation of section 12940, subdivision (h) are: ‘(1) the employee’s engagement in a protected activity ...; (2) retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation.’ ” (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1105.)

The undisputed facts establish plaintiff never engaged in protected activity. Her only purported protected activity was being sued by Jennifer Medvin for harassment based on sexual orientation (M. Ex. C) and testifying at her deposition in that lawsuit (Opp. Ex. A, Lee Depo., 105:3-15). Neither party has identified any authority on this issue.

The court has found federal authority going in opposite directions. “California courts often look to Title VII in interpreting the FEHA.” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040.) The Second Circuit has held “even involuntary participation in Title VII proceedings by an employee accused of sexual harassment qualifies as protected activity.” (Deravin v. Kerik (2d Cir. 2003) 335 F.3d 195, 204.) The 10th Circuit has relied on that authority. (Kelley v. City of Albuquerque (10th Cir. 2008) 542 F.3d 802, 813.)

The Seventh Circuit, however, concluded otherwise. “The provision regarding retaliation backs up this central thrust by protecting employees who invoke the statutory machinery for rectifying violations. We cannot find any hints in the case law, the legislative history, interpretations by government agencies, or scholarly commentary of any purpose of protecting employees whose resistance to charges of discrimination made by their coworkers provokes the employer’s ire.” (Twisdale v. Snow (7th Cir. 2003) 325 F.3d 950, 952.) “[T]he employer would be sitting on a razor’s edge if it could not discipline employees whose opposition to discrimination charges placed the employer in jeopardy of violating an employee's statutory rights.” (Ibid.) The court finds this analysis persuasive. The court therefore concludes plaintiff cannot establish a prima facie case of retaliation.

Assuming plaintiff’s participation and testimony in a FEHA suit against her constitutes protected activity, this cause of action would still fail. Defendant meets its burden of showing a legitimate reason for terminating plaintiff. Defendant presents evidence plaintiff had performance issues—or at least that defendant had reasons to believe that—before plaintiff engaged in any potential protected activity. “[I]f nondiscriminatory,” the employer’s “true reasons” for the adverse employment action “need not necessarily have been wise or correct.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 358 (Guz).) “‘[L]egitimate” reasons” are those “facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” (Ibid.) The “ultimate issue is whether [the] employer ‘honestly believed in the reasons it offers.’ ” (Ibid.)

Jennifer Medvin filed her administrative complaint against Dignity, Lee, and Rebecca Siason, Lee’s supervisor, on January 29, 2020. (M. Ex. C, p. BOAEL…0200.) Medvin filed the civil action against Dignity and Lee on February 20, 2020. (Id., p. BOAEL…0195-0196.) Medvin dismissed that action on September 4, 2020. (Opp. RJN, Ex. 2.)

Defendant, meanwhile, presents evidence it had concerns about plaintiff’s performance as early as April 17, 2019. On that date, Dr. Matt Nalamlieng sent an email to Rebecca Siason saying he “just cancelled a case due to the incompetence of your charge nurse Bebe Lee.” (M. Ex. A, p. BOAEL…0011.) Nalamlieng further wrote, “[Y]ou need to acknowledge and recognize the fact that what she did was wrong and inappropriate and this needs to be addressed by both your and her supervisors.” (Ibid.)

On August 4, 2019, Lea Pascual sent an email to Gigi Cruz-Vicente and Rebecca Siason listing 12 performance issues by plaintiff. (M. Ex. A, p. BOAEL…0067.) On August 16, 2019, Maria Gloria Ni Barrios sent an email stating a patient “complained that [plaintiff] compared his father to a car.” (Id., p. BOAEL…0086.)

In plaintiff’s performance review dated August 29, 2019, her supervisor Siason gave her an overall rating of “Meets Expectations (Strong Performance)” (M. Ex. A, p. BOAEL…1121) but also indicated she “Needs Improvement” in three areas (id., pp. 1118-1119). In the “comments” section, Siason wrote, “Bebe is new to her role as evening surgery nurse shift manager. There have been a number of concerns expressed by the surgeons, anesthesia, and staff regarding the decisions she makes running the board. I have actively coached Bebe to consult with anesthesia to assist her in identifying the best case flow but this has not been actualized by Bebe. Bebe’s intentions are good but she continues to stumble in her decision making. This negatively impacts the patient and the providers. Bebe needs to turnaround this performance by consulting with anesthesia to help guide her in better decision making. Hopefully, this will allow her to develop the acumen needed to fulfill her role and then utilize anesthesia as consultative.” (Id., p. 1121.)

Plaintiff’s personnel file also includes a note (which does not identify its author) stating that on November 27, 2019, “Judy Iles RN and Bebe Lee RN did not appropriately store the sponges in the sponge bags as they should have, instead they left them on top of the basin. I addressed my concerns regarding the proper technique, unfortunately it appeared that both registered nurses ignored and did not follow protocol.” (Id., p. BOAEL…0166.)

Defendant also shows documented performance issues during and after Medvin’s lawsuit. On August 28, 2020, defendant put plaintiff on a performance improvement plan (PIP). (Siasion Decl., ¶ 5; M. Ex. A, pp. BOAEL…1077-1081.) In it, defendant wrote, “It has become increasingly evident that you have not been performing at the level of what is expected of someone in your role.” (Id., p. 1077.) The PIP further states, “You must demonstrate immediate and sustained improvement in the areas outlined below,” followed by six specific areas of improvement. (Id., pp. 1077-1079.)

Plaintiff’s “abbreviated performance review” dated August 28, 2020, evaluates plaintiff on only two categories and provides an overall rating. (Siason Decl., ¶ 4; M. Ex. A, pp. BOAEL…1123-1125.) Siason concluded plaintiff “Needs Improvement” in both categories and overall. (Ibid.) In the “comments” section, Siason wrote, “Bebe continues to struggle in her role as the evening Nurse Shift Manager. To assist her in the following areas needing improvement- clinical policies and procedures, workforce diversity management, patient/customer focus, managing people/projects/tasks, conflict management, and decision making /critical thinking- a performance Improvement plan has been developed. [¶] We will meet monthly over the next three months.” (Id., p. 1125.)

On July 15, 2021, defendant terminated plaintiff. (UMF No. 26; M. Ex. A, p. BOAEL…1090.) The termination letter states, “After deliberate analysis of your progress in meeting the expectations established in your PIP, and after careful consideration of your performance in your position as a Nurse Shift Manager, the decision has been made to end your employment.” (Ibid.) The ultimate adverse job action thus occurred about 10 months after Medvin dismissed her action against Dignity and plaintiff.

Plaintiff does not meet her ultimate burden of showing defendant’s stated reasons for terminating her were pretextual and its true reason was retaliation. “[A]n 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.” (Guz, supra, 24 Cal.4th at p. 361.) Plaintiff’s evidence “is too weak to sustain a reasoned inference in [her] favor.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 (Mamou).)

The opposition argues, “It is no coincidence that mere months after Plaintiff’s deposition, and weeks after settling the matter, Plaintiff was subjected to adverse employment actions in the form of unwarranted performance evaluation, discipline, and a performance improvement plan.” But plaintiff offers no evidence showing it was not a coincidence. Plaintiff presents no evidence other than that she did testify in a FEHA suit (against her) and was later fired. “Mere sequence is not enough.” (Chen v. County of Orange (2002) 96 Cal.App.4th 926, 931.) Plaintiff “showed nothing but sequence in a context where there were obviously good and legitimate reasons” for the adverse actions against her. (Ibid.)

Plaintiff does not establish a genuine dispute of material fact on this subject. She uses three strategies to attempt to dispute the facts in defendant’s separate statement. First, she disputes minutiae such as the specific dates of events. (E.g., UMF Nos. 10, 21, 27.) Second, she relies on testimony that she does not remember events—not that they never happened. (E.g., UMF Nos. 9, 10, 12, 18, 23.) Third, she attempts to dispute facts via evidence purportedly showing defendant’s concerns about her performance or others’ complaints about her performance were unfounded. (E.g., UMF Nos. 9, 11, 13, 20, 21, 26.)

Any such disputes do not rebut defendant’s evidence that it terminated her for legitimate reasons. At most, any disputes go to whether defendant’s nondiscriminatory reason for terminating her was “wise or correct.” (Guz, supra, 24 Cal.4th at p. 358.) Even assuming Siason and everyone else who criticized plaintiff’s job performance fabricated everything they said about plaintiff, plaintiff provides no evidence they did so because she participated in and testified in the lawsuit against her by Jennifer Medvin. And regardless of any pretext, which “is certainly a relevant issue,” it is not “a central or necessary issue.” (Mamou, supra, 165 Cal.App.4th at p. 715.) “The central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.” (Ibid.) Here, plaintiff presents insufficient evidence to support a reasoned inference that she was terminated in retaliation for any protected activity.

2nd Cause of Action: Disability Discrimination

Triable issues of material fact preclude summary adjudication of this cause of action. It is undisputed that plaintiff was on medical leave for an unspecified health condition from October 5, 2020, to May 3, 2021. (UMF No. 29.) Defendant does not dispute that plaintiff had a disability under FEHA.

In contrast with her first cause of action for retaliation, plaintiff has some evidence that would permit a trier of fact to infer defendant terminated her because of her disability. In January 2021, Siason exchanged emails with HR employees about plaintiff’s leave of absence. On January 12, 2021, Siason wrote, “It’s been over 10 days. Is she resigning or is this job abandonment?” (Opp. Ex. G.) An HR employee replied, “Her PCP has extended [her leave] for another 12 weeks … . Her job protected portion of the leave exhausts on 1/30/21. … Do you plan to post the position when it becomes unprotected?” (Ibid.) Siason replied, “We will post on 2/1.” (Ibid.)

This evidence suggests that, during plaintiff’s leave of absence for her disability, Siason was eager to replace her as soon as possible. Siason was the chief decisionmaker in terminating plaintiff. The timing of events was also much closer than in plaintiff’s retaliation claim. Defendant terminated plaintiff on July 15, 2021, about 75 days after she returned from her leave of absence.

Defendant argues its termination was not pretextual because Siason may have had the nondiscriminatory motive of ensuring plaintiff returned to work as scheduled or, if not, finding someone to fill her position. “While ‘pretext’ is certainly a relevant issue in a case of this kind, making it a central or necessary issue is not sound. The central issue is . . . whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.) Although plaintiff has insufficient evidence to raise a triable issue regarding retaliatory animus, she has enough evidence regarding discriminatory animus to survive summary judgment. The court cannot conclude that, as a matter of law, no reasonable factfinder could infer that disability discrimination was a substantial motivating factor for terminating plaintiff.

3rd Cause of Action: California Family Rights Act (CFRA)

Defendant is entitled to summary adjudication of this cause of action. CFRA requires employers “to grant a request by any employee” who meets certain criteria “to take up to a total of 12 workweeks in any 12-month period for family care and medical leave.” (Gov. Code, § 12945.2(a).) Again, it is undisputed that defendant permitted plaintiff to go on medical leave from October 2020 to May 2021. (UMF No. 29.) That was much longer than 12 workweeks. Defendant therefore could not have violated CFRA. Plaintiff’s opposition does not address this cause of action.

4th Cause of Action: Failure to Prevent Discrimination and Harassment

Triable issues of material fact preclude summary adjudication of this cause of action. FEHA requires an employer “to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940(k).) Defendant relies on authority that this claim cannot stand on its own without the underlying claims for FEHA violations. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1309; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.) This cause of action therefore survives along with plaintiff’s second cause of action for disability discrimination.

5th Cause of Action: Harassment

Defendant is entitled to summary adjudication of this cause of action. In contrast with discrimination, which concerns unequal terms and conditions of employment, “harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.)

Harassment occurs when the defendant subjects the plaintiff to “discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 951.) “Although annoying or ‘merely offensive’ comments in the workplace are not actionable, conduct that is severe or pervasive enough to create an objectively hostile or abusive work environment is unlawful.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.)

Defendant meets its burden of showing plaintiff has no evidence she was subjected to a hostile work environment in violation of FEHA. Plaintiff does not dispute defendant’s fact No. 34: “Plaintiff admits that nobody at [her workplace] made any harassing comments towards her for any physical or mental disability.” (UMF No. 34.)

Plaintiff’s opposition does not explicitly address this cause of action. She presents evidence only of trivial matters or, at most, mildly offensive conduct. FEHA is not “a civility code.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1061.) “[T]here is no recovery for harassment that is occasional, isolated, sporadic, or trivial.” (Ibid.)

In her separate statement of additional facts, plaintiff asserts, “Beginning in 2020, Ms. Siason began treating Plaintiff poorly, including shunning Plaintiff and avoiding speaking, including pleasantries when passing in the hallways and simply treating Plaintiff ‘bad[ly].’ ” (AMF No. 41.) Similarly, at her deposition, plaintiff testified Siason was “mean” to her because “[s]he did not have eye contact with me. She avoided having discussion with me. So I had a silent pressure every single day.” (Opp. Ex. A, Lee Depo., 35:19-24.)

No reasonable factfinder could conclude that conduct was severe and pervasive enough to create a hostile environment. Plaintiff’s evidence of harassment boils down to nothing more than her supervisor treating her coldly. Even assuming this evidence were sufficiently severe or pervasive, there is no evidence Siason treated plaintiff poorly because plaintiff participated and testified in Medwin’s lawsuit, because plaintiff had a disability, or because of any other basis protected under FEHA.

Punitive Damages

Triable issues of material fact preclude summary adjudication of plaintiff’s claim for punitive damages.

A. Malice, Oppression, or Fraud

Plaintiff presents sufficient evidence of malice or oppression. On summary adjudication, the plaintiff must present sufficient evidence for a triable issue under “the higher evidentiary standard” of “establishing malice, oppression or fraud by clear and convincing evidence.” (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.)

Evidence that an employer “intentionally discriminated against” an employee can suffice for malice. (Cloud v. Casey (1999) 76 Cal.App.4th 895, 911.) Evidence that an employer did so “then attempted to hide the illegal reason for their decision with a false explanation” can be found “base, contemptible or vile.” (Id. at p. 912.) As discussed with respect to the second cause of action, a reasonable factfinder could conclude defendant intentionally discriminated against plaintiff based on her disability and attempted to hide that discrimination with a false explanation for terminating plaintiff. Even considering the higher evidentiary standard for punitive damages, the court cannot say that, as a matter of law, no reasonable factfinder could conclude plaintiff’s evidence does not meet the clear and convincing standard. A reasonable factfinder could, after making credibility determinations and evaluating the weight of the evidence, find plaintiff’s evidence clear and convincing.

Defendant’s reliance on Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702 is misplaced. As a later decision explained, “There, the employer was forthright about its reason for terminating the plaintiff, but the reason was found improper because it would violate a significant public policy.” (Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 456 (Colucci).)

B. Officer, Director, or Managing Agent

Defendant does not meet its burden of showing plaintiff cannot prove that any officer, director, or managing agent of the corporation was involved in, authorized, or ratified any misconduct. “An employer shall not be liable for” punitive damages “based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294(b).)

“In order to demonstrate that an employee is a true managing agent under section 3294, subdivision (b), a plaintiff seeking punitive damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporation’s business.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 577 (White).) “The scope of a corporate employee’s discretion and authority under our test is … a question of fact for decision on a case-by-case basis.” (Id. at p. 567.)

Defendant does not meet its initial burden of providing evidence that none of the people involved in terminating plaintiff were managing agents. A defendant “cannot satisfy its initial burden of production of evidence by making a conclusory statement of law, whether directly or through a declaration of one of its employees.” (Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 372 (Davis).) In Davis, an employee “stated in his declaration: ‘As a Kiewit employee, I have never had substantial discretionary authority over decisions that ultimately determine Kiewit’s corporate policy. I do not write or recommend implementation of any human resources policies and procedures.” (Id. at p. 371.) The court concluded that “simply restating the applicable legal standard under White for the determination of whether [someone] was its managing agent” does “not satisfy its initial burden of production.” (Id. at p. 372.)

Here, defendant relies on equivalent evidence of conclusory statements by Rebecca Siason, Keith Spencer Jr., and Yvette Barrios. UMF No. 43 asserts, “Neither Rebecca Siason, Keith Spencer Jr., nor Yvette Barrios were at the time, or are presently, officers, directors, or managing agents of Dignity Community Care, because their job duties do not include drafting, revising, or having input on policies that affect the Dignity Community Care entity as a whole, or a substantial portion thereof.”

In her declaration, Siason states, “I am not, and have never been, an officer, director, or managing agent of Dignity Community Care. [I do not exercise] any authority over decisions that ultimately determined corporate policy for Dignity Community Care. My job duties as the Nursing Director do not include drafting, revising, or having input on policies that affect the Dignity Community Care entity, or a substantial portion thereof. My authority is limited to California Hospital Medical Center and in enforcing corporate policies at the local hospital level.” (Siason Decl., ¶ 10.)

In her declaration, Barrios states, “Nobody in the Human Resources Department at California Hospital Medical Center is an officer, director, or managing agent of Dignity Community Care. My job duties as the HR Director do not include drafting, revising, or having input on policies that affect the Dignity Community Care entity, or a substantial portion thereof. … My authority and the authority of employees in my department is limited to California Hospital Medical Center and in enforcing corporate policies at the local hospital lever.” (Barrios Decl., ¶ 4.)

Keith Spencer Jr., meanwhile, states only, “I am not, and have never been, an officer, director or managing agent of Dignity Community Care.” (Spencer Decl., ¶ 6.)

These declarations do no more than restate the applicable legal standard and deny that it applies.

Defendant argues, “Dignity Community Care is a very large organization with many hospitals and tens of thousands of employees. None of these individuals have any authority to make decisions that determine corporate (i.e., Dignity Community Care) policy.” (Motion, p. 19.) Defendant offers no evidence supporting those assertions. Even if it had, California courts have held that someone with authority over relatively little of a corporation’s business can be a managing agent. For example, in Colucci, the court held there was substantial evidence to support a finding that “a district manager, responsible for managing nine retail stores and 100 employees” at T-Mobile was a managing agent. (Colucci, supra, 48 Cal.App.5th at p. 452.) The court reached that conclusion even though “[t]here are hundreds of T-Mobile retail stores in California.” (Id. at p. 447.) The court reasoned the district manager “had substantial discretionary authority over daily store operations, which led to the ad hoc formulation of policy,” and his “decisions affected company policy over a significant aspect of T-Mobile’s business.” (Id. at p. 452.)

On this record, there is a triable issue of fact as to whether Siason, Barrios, or Spencer were managing agents.

Disposition

Defendant Dignity Community Care dba California Hospital Medical Center’s motion for summary adjudication of plaintiff Boae Lee’s first, third, and fifth causes of action is granted. Defendant’s motion for summary adjudication of plaintiff’s second and fourth causes of action and plaintiff’s claim for punitive damages is denied.