Judge Bruce G. Iwasaki, Case 19STCV39139 2022-10-21 Tentative Ruling

This is an employment action. Heather Berry (Plaintiff or Berry) sues Antelope Valley Hospital (Defendant or Hospital) and Lawrence Wilson for (1) battery, (2) wrongful termination in violation of public policy, (3) whistleblower retaliation, (4) Fair Employment and Housing Act (FEHA) sex discrimination, (5) FEHA retaliation, (6) FEHA failure to prevent harassment and discrimination, and (7) failure to provide access to personnel file.

Berry alleges that Wilson, a doctor at the Hospital, backed her up against a bed and ran his hand up the sleeve of her shirt. She allegedly reported Wilson’s behavior but asserts that the Hospital conducted an improper investigation. Berry also claims that Wilson engaged in inappropriate practices that caused injuries to patients after delivering a baby and which exposed them to unnecessary and inappropriate physical contact with Wilson.

On a separate occasion, Berry noticed a foul smell from a cup of water she poured from the water dispenser in the break room. She tested the water with the urinalysis machine, a device for testing urine, and asserted that it resulted in “every testable item on the strip, including nitrates, proteins, leukocyte esterase, and blood.” She informed another nurse of the results and believed the machine was malfunctioning – in which case, she maintains, patients were needlessly prescribed antibiotics – or the water was truly contaminated. Plaintiff subsequently conducted additional tests with the machine using sterile water and tap water.

Berry then told other employees not to drink the water. She stated “it was testing positive,” and “we don’t know that there’s blood in the water.” Several days later, the Executive Director of Women, Infant, and Pediatric Services, Andrea Randenberg (Randenberg or Director) informed Plaintiff that the Department of Health was notified by one of the employee paramedics and that an investigation was underway. Randenberg stated that Plaintiff’s report caused a panic and that Plaintiff failed to properly report the incident to her supervisor. The Hospital terminated Plaintiff’s employment that day.

Defendant moves for summary judgment or adjudication of all claims. Plaintiff filed Opposition, and Defendant filed a Reply.

The Separate Statements of both parties are replete with deficiencies. Rather than tailor the facts for each issue, Defendant lumps all the facts into issue one and “incorporates” all these facts into all causes of action. This is unhelpful and does not focus the issues. For her part, Plaintiff’s citation to the evidence often includes omitted documents. For example, in disputing Statement of Fact 2, she cites to the “Depo. Of Wilson; 52-55; 124:8-11.” Yet only page 52 is provided. Furthermore, Plaintiff cites only to her own deposition in at least 21 of her additional disputed material facts, which is generally inadmissible hearsay. Indeed, much of the purported evidence in Plaintiff’s separate statement is based on multiple levels of hearsay. Berry did not submit a declaration in opposition to the motion. Berry’s obligation was to submit admissible evidence showing a triable issue of fact. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4^th 755, 761.) Failure to comply “may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(c).) Here, however, the Hospital failed to object to the inadmissible evidence. Instead, it disputed the evidence in a reply separate statement. Adding to the disorganized state of Berry’s opposition, several instances of Plaintiff’s purported disputed facts are unrelated to the proposition in Defendant’s statement of undisputed fact. Thus, they do not create an actual dispute.

The Hospital’s papers are also deficient. In its Reply to the Separate Statement, Defendant cites to documents without providing exhibit numbers or any other way to find them. Defendant’s excerpts from interrogatories are unlabeled. Both parties are admonished to comply with California Rules of Court, rule 3.1350.

Despite the poorly prepared papers, the Court reaches the merits. The Court denies the motion for summary judgment. However, the Court finds that the Hospital’s reason for terminating Berry’s contract was legitimate and non-discriminatory and Berry fails to show any pretext. Accordingly, the motion for summary adjudication is granted as to the FEHA claims for discrimination, retaliation, wrongful termination, and failure to prevent harassment and discrimination.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c,¿subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp.¿(1992) 7 Cal.App.4th 1110, 1119.)

The moving party has the initial burden of production to make¿a prima facie¿showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make¿a prima facie¿showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c,¿subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden by proving that for each cause of action alleged, plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc., § 437c(p)(2).)

Defendant argues that it cannot be held liable for the intentional tort of an independent contractor. Plaintiff attempts to dispute this by offering the testimony of Wilson, who indicates that there was a separate area at the Hospital for him to sleep overnight.

“At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work. [Citations.] Central to this rule of nonliability was the recognition that a person who hired an independent contractor had ‘“no right of control as to the mode of doing the work contracted for.’” [Citations.] The reasoning was that the work performed was the enterprise of the contractor, who, as a matter of business convenience, would be better able than the person employing the contractor to absorb accident losses incurred in the course of the contracted work. This could be done, for instance, by indirectly including the cost of safety precautions and insurance coverage in the contract price. [Citations.] [¶] Over time, the courts have, for policy reasons, created so many exceptions to this general rule of nonliability that ‘“‘the rule is now primarily important as a preamble to the catalog of its exceptions.’”’ (Privette v. Superior Court (1993) 5 Cal.4th 689, 693.)

Whether an employment relationship exists is generally a question of fact. (Taylor v. Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th 966, 993.) “‘This remains true “[w]here the evidence, though not in conflict, permits conflicting inferences.”…However, if neither the evidence nor inferences are in conflict, then the question of whether an employment relationship exists becomes a question of law … .’” (Ibid.)

The factors to consider in evaluating whether a worker is an employee or independent contractor include: “(1) whether there is a right to fire at will without cause; (2) whether the one performing services is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the services are to be performed; (7) the method of payment, whether by the time or by the job; (8) whether or not the work is a part of the regular business of the principal; (9) whether or not the parties believe they are creating an employer-employee relationship; (10) whether the classification of independent contractor is bona fide and not a subterfuge to avoid employee status; (11) the hiree’s degree of investment other than personal service in his or her own business and whether the hiree holds himself or herself out to be in business with an independent business license; (12) whether the hiree has employees; (13) the hiree’s opportunity for profit or loss depending on his or her managerial skill; and (14) whether the service rendered is an integral part of the alleged employer’s business. (JKH Enterprises, Inc., v. Dept. of Industrial Relations (2006) 142 Cal.App.4th 1046, 1064 n.14.)

Plaintiff does not allege any exceptions to this general rule but disputes whether Wilson was an independent contractor. Defendant offers only the testimony of Randenberg. (Defendant’s Undisputed Material Fact [DUMF] 5.)[1]

Given the disorganization and failure to label the deposition transcripts, the Court cannot locate the Randenberg Deposition. Assuming that Defendant is referring to the testimony in which the interviewer is asking the witness, “When you say ‘employer,’ [of Dr. Wilson] who are you referring to?” and the witness (presumably, Randenberg) answered, “He worked for a physician group. Dr. Ferry’s physician group, I believe,” then this is insufficient to establish that Wilson was an independent contractor. Apart the from the Hospital failing to identify evidence properly, and apart from the absence of any evidence that the deponent possessed personal knowledge upon which to base the statement, it is unclear that merely being part of a physician group means that Wilson was an independent contractor. Defendant offers no other evidence such as employment contracts, IRS tax forms, or a discussion of any of the factors delineated above.

Even assuming Wilson is an independent contractor, there are other theories of liability to hold the Hospital responsible such as, for example, ostensible agency. (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 502.) Without more, the Court does not find that Defendant has met its burden on the battery claim and summary adjudication is denied as to the first cause of action.

The Hospital contends that Berry improperly used the urinalysis machine and shared her alarming beliefs with other employees. It also argues that it had a legitimate, non-discriminatory reason to terminate Berry because she was unprofessional and failed to exercise proper judgment when she used a urinalysis machine to test water and told employees not to drink the water, creating understandable consternation. In response, Berry points to testimony by the Director that she told Berry, “I can’t trust you just like the other time,” in reference to Berry’s complaint about being touched by Wilson. In reply, the Hospital states that Berry fails to connect her termination to any evidence of discrimination based on gender or sex.

FEHA prohibits discrimination in compensation, terms, conditions, or privileges of employment based on membership in a protected class. (Gov. Code, § 12940, subd. (a).)

The employee must establish a prima facie case of unlawful discrimination or retaliation. (McDonnell Douglas Corporation v. Green (1973) 411 U.S. 792, 802; Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354 (Guz).) Upon such showing, the employer bears the burden of articulating a legitimate reason for taking the challenged adverse employment action. (Id.) Finally, the burden shifts back to the employee to demonstrate that the employer’s proffered legitimate reason is a pretext for discrimination or retaliation. (McDonnell Douglas Corporation, supra, 411 U.S. at p. 804.)

In a summary judgment motion, “[i]f the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing . . . [I]n the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff’s right to prevail on a particular issue. . . . In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion.” (Arteaga v. Brink’s Inc. (2008) 163 Cal.App.4th 327, 344 [citations and quotations omitted].)

To establish a prima facie case for discrimination under the FEHA, a plaintiff must show that “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz, supra, 24 Cal. 4th at 355.)

“A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. [Citation.] The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that one or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158.)

“The employee’s ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’ [Citation.]” (Featherstone, supra, 10 Cal.App.5th at p. 1159.) “To show that an employer’s reason for termination is pretextual, an employee ‘“cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.”’ [Citation.] To meet his or her burden, the employee ‘“must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’”’ and hence infer ‘“the employer did not act for [the asserted] nondiscriminatory reasons.”’ [Citations.]” (Ibid.) “[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.)

The Hospital argues that Plaintiff Berry cannot show either: (1) that she performed her duties competently, or (2) that the Hospital’s decision to terminate her reflected discrimination on the basis of her sex. The Court concludes that upon application of the three-step analysis, Berry fails to show that the Hospital’s reason for terminating her was a pretext for discrimination.

First, on Plaintiff’s relatively light burden of establishing a prima facie case, Plaintiff testified that she used the machine on numerous occasions, other nurses used it, and the lab did not object to her use. (PUMF 28, 56, 64.) Defendant does not provide evidence showing that use of the machine was outside the scope of Plaintiff’s responsibilities such as providing a list of job duties or the required technical certification to use the machine. Otherwise, Defendant does not dispute that Plaintiff was performing competently up until that event. (PUMF 33.) The Court finds that this is sufficient to meet Plaintiff’s burden on her prima facie case. Even if not, this presents a triable issue of fact.

As to the evidence of some other circumstance suggesting discriminatory motive, temporal proximity is sufficient or at least creates a triable issue. (Asmo v. Keane, Inc. (6th Cir. 2006) 471 F.3d 588, 598 [terminating employee within two months of learning she was pregnant]; DeBoer v. Musahi Auto Parts, Inc. (6th Cir. 2005) 124 F.App’x 387, 393.) Here, Plaintiff allegedly reported Wilson’s conduct (both the assault and his inappropriate delivery practices) in July or August 2018, and she was terminated in November. (PUMF 19,34, 38-40.)

For purposes of this analysis, the Court assumes Plaintiff has met her prima facie burden to show discrimination based on sex.

Next, Defendant states that its legitimate, non-discriminatory reasons for Plaintiff’s termination were “her unprofessionalism and lack of judgment in testing water with a urinalysis machine and then sharing her conclusions about finding blood in the water.” (See DUMF 18.) This is sufficient to meet Defendant’s burden. (Guz, supra, 24 Cal.4th at p. 358 [“‘legitimate reasons . . . are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination”].) Plaintiff seems to concede this by repeating the assertions in her own statements of undisputed facts and not denying that she undertook those actions. (PUMF 53, 54, 65, 67, 68, 69, 70.)

The burden then shifts back to Plaintiff to show evidence of pretext for sexual discrimination. She has failed to do so. Plaintiff argues that Director Randenberg repeatedly stated that she cannot trust Plaintiff because of “the other time,” presumably referencing her complaint about Wilson. She asserts this constitutes circumstantial or indirect evidence. However, “‘[c]ircumstantial evidence of “‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate” on an improper basis.’” (Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834.)

Berry fails to indicate how Randenberg’s statement alone implicates sexual discrimination. It is too attenuated for Berry to argue that Randenberg “held a great deal of animosity toward Plaintiff and blamed her for having reported sexual harassment by Defendant Wilson.” Berry offers no evidence why Randenberg would harbor animosity toward Berry specifically, especially based upon her sex. Accordingly, Plaintiff fails to meet her burden and judgment is granted on this cause of action.

Fifth cause of action - retaliation under the Fair Employment and Housing Act

Defendant Hospital concedes that Plaintiff meets her prima facie burden, i.e., that she reported Wilson’s improper conduct, she was terminated, and a causal link exists. However, it reiterates that she cannot establish pretext in light of its non-discriminatory reasons for terminating her employment. Plaintiff contends that the Hospital engaged in pretext by stating that it terminated her for not reporting her concerns to management. She also argues temporal proximity between her report of Wilson’s conduct and her termination. To that point, Defendant states that five months is too long to show a connection between the report and the termination.

Similar to discrimination, courts employ a burden-shifting approach to analyze claims of retaliation under the FEHA. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) The plaintiff has the initial burden to establish a prima facie case by showing (1) he or she engaged in protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. (Ibid.) Once the employee establishes the prima facie case, the burden shifts to the employer, who must present a legitimate, nonretaliatory reason for the adverse employment action. (Ibid.) If the employer carries this burden, the “presumption of retaliation ‘drops out of the picture,’ and the burden shifts back to the employee to prove intentional retaliation.” (Ibid.)

In the third step of the analysis, the employee “then bears the burden of persuasion with respect to all elements of the cause of the action, including the existence and causal role of discriminatory or retaliatory animus.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal. App. 4th 686, 715.) The plaintiff must demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action. (Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834 (Batarse).) Circumstantial evidence “must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate” on an improper basis. (Ibid.)

While pretext is relevant, courts should focus on the central issue, which is whether the overall evidence supports a reasoned inference that the adverse action was the product of retaliatory animus. (Light v. Dept. of Parks & Recreation (2017) 14 Cal.App.5th 75, 94; Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1226, n.5.)

The Court incorporates its analysis above and reaches the third step of the analysis, in which Plaintiff bears the burden to show pretext. Again, she has failed to provide any evidence.

“[T]emporal proximity, although sufficient to shift the burden to the employer to articulate a nondiscriminatory reason for the adverse employment action, does not, without more, suffice also to satisfy the secondary burden borne by the employee to show a triable issue of fact on whether the employer’s articulated reason was untrue and pretextual.” (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112.)

Plaintiff also spends substantial time discussing that Defendant failed to properly conduct a proper investigation into her complaints about Wilson. She contends that Defendant did not initiate an investigation for at least six weeks after her initial complaint, and that Wilson and other relevant witnesses were never interviewed. (PUMF 47, 49, 51.) Again, Plaintiff’s argument that the investigation was insufficient may relate to a “causal connection between her protected activity and the adverse employment action.” (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1188 [reversing summary judgment because of inadequate investigation to correct the alleged retaliation].) But this does not address Defendant’s legitimate, non-discriminatory reason. Nor does it show that her termination was the “product of discriminatory or retaliatory animus.” (Joaquin v. City of Los Angeles, supra, 202 Cal.App.4th at p. 1226, n.5.)

Plaintiff also argues that Defendant provides shifting reasons and that should show that its decision to terminate Plaintiff was pretext.[2] “[I]n an appropriate case, an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions.” (Guz, supra, 24 Cal.4th at p. 363.) Plaintiff asserts that Defendant stated it terminated her for “[1] bizarre behavior in using hospital equipment for an unintended purpose and then disseminating the results to colleagues . . . [2] Plaintiff failed to follow proper reporting guidelines by not reporting any alleged concerns she had with the drinking water or urinalysis machine . . . [3] rather than take her concerns about the water and urinalysis machine to management, Plaintiff caused panic and worry to several employees and non-employees who were told by Plaintiff, without any scientific basis or justification, that there was blood in the water they were drinking.”

Contrary to Plaintiff’s view, these are separate, independent bases for termination and are not necessarily “shifting, contradictory, implausible, uninformed, or factually baseless.” Plaintiff may have been terminated for any one of those reasons or for all those reasons, which are not mutually exclusive. Apart from the failure to follow proper reporting guidelines, Plaintiff does not dispute that she used hospital equipment for other than its intended purpose and told numerous people – without adequate basis – that the water they were drinking was contaminated with blood. (PUMF 53, 65.) Thus, Plaintiff fails to meet her burden to show that the proffered reasons were merely pretext and summary adjudication is granted on this cause of action.

Defendant argues that Labor Code section 1102.5 does not apply because Plaintiff failed to disclose any information to a government agency or anyone at the Hospital with authority to correct any violation of a local, state, or federal rule or regulation. Again, it argues that it terminated Plaintiff for her bizarre behavior in using hospital equipment for an unintended purpose and then disseminating the results to colleagues. Plaintiff opposes and argues that she raised concerns about working conditions, patient health and safety, and the possibility that the Hospital’s patients were unnecessarily being prescribed medical treatments. In addition, she reported it to her supervisor and the Director, who had authority over her. Defendant counters by arguing that Plaintiff never informed anyone of her concerns of misdiagnosing patients with urinary tract infections.

Under Labor Code section 1102.5, subdivision (b), protected activity is defined as “disclosing information, or [when] the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.”

The California Supreme Court recently clarified that the correct framework to analyze retaliation claims under Labor Code section 1102.5 is under section 1102.6. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712 (Lawson).) That is, plaintiff must show “by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor” to an adverse employment action. (Id. at p. 707.) Once plaintiff meets that burden, the employer has the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Labor Code section 1102.5. (Id. at p. 712; Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 379-380.) Thus, the employer “must do more than show it had a legitimate, nondiscriminatory reason for the adverse employment action.” (Vatalaro v. County of Sacramento, supra, 79 Cal.App.5th at p. 383.) In addition, “the employee need not ‘show that the employer's nonretaliatory reason was pretextual.’ (Ibid.)

As a threshold matter, it appears that Berry may be asserting two protected activities: her report that the urinalysis machine was malfunctioning and thus, patients in the Hospital were improperly being prescribed antibiotics; and that she reported blood in the water. (PUMF 60, 65.) On the second activity of reporting blood in the water, Plaintiff contends that she complied with the bloodborne pathogen policy of the hospital. However, Berry fails to offer evidence that she ever reported this concern to her supervisor or another employee with authority over her. The only evidence Berry offers is that she told another nurse, Ms. Cerda, who testified that she had no control over Berry. Plaintiff’s Separate Statement of Facts only state that she complied with the policy, but this the Hospital disputes. (See PUMF 26, 79.) In fact, Plaintiff only asserts that she informed other employees of the blood, which would not be protected under the statute. (PUMF 65.)

Wholly apart from Plaintiff failing to disclose the presence of blood to someone with authority, the Court is also dubious that such a report constitutes a protected activity under Labor Code section 1102.5. The statute states that the employee must have reasonable cause to believe that the information discloses a violation of law. The Court of Appeal recently considered whether “reasonable cause to believe” is equivalent to “reasonably believe.” (Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 380 [discussing that a person may have “‘reasonable cause to believe’ that something is true, even if she does not in fact believe it to be true].) That court ultimately declined to rule on that question. However, this Court is skeptical as to whether Plaintiff had reasonable cause to believe (or even reasonably believed) that there was blood in the water based on a test result from a machine that is designed to test urine. (See Azizollahi Decl., Ex. H., Depo. of Flora Cera, pp. 42:15-43:9 [Plaintiff’s supervisor had no concerns of blood because the urinalysis machine was not designed to test water].)

There are similar concerns with Plaintiff having reasonable cause or reasonably believe the urinalysis machine was malfunctioning considering that she was testing different samples of only water in the machine. (PUMF 56, 62 [testing sterile water, tap water, and water from “soiled utility room”].)

Nevertheless, assuming arguendo that Plaintiff properly reported that she was concerned with the urinalysis machine’s malfunction and that there was blood in the water cooler, the Court proceeds to the analysis.

First, Plaintiff must show that her report of her concern that the urinalysis machine was broken was a “contributing factor” to her termination. The Court finds that Plaintiff has met this burden. She produces e-mails from Randenberg that indicates she informed Plaintiff it was “inappropriate to start/spread gossip and incite fear of contaminated water–esp. to an outside agency.” (PUMF 84.) While this can be interpreted to mean that Plaintiff was spreading rumors, it could also suggest Defendant was concerned of Plaintiff’s reports to outside agencies and took adverse action against her because of the alleged report. Furthermore, temporal proximity also satisfies Plaintiff’s burden. (Jaekel v. Aytu Bioscience, Inc. (N.D.Cal. Aug. 10, 2022, No. 20-cv-00340-TSH) 2022 U.S.Dist.Lexis 142987, *10-11.) The events are muddled because Plaintiff used the urinalysis machine, reported the findings, and was subsequently terminated for using the machine. Given that all these events happened in a span of three days, Plaintiff has shown, by a preponderance of evidence, that her reporting was a contributing factor of her termination.

The burden now shifts to Defendant to show, by clear and convincing evidence, that it would have terminated Plaintiff for legitimate, independent reasons, even if Plaintiff did not report her concerns. Even under this standard, the Court is persuaded that Defendant has met this burden. As mentioned, Defendant provides several reasons for terminating Plaintiff, all of which are legitimate and independent: she caused panic by improperly spreading information for which she was unqualified to interpret, using the urinalysis machine to improperly test for water, and failing to report her concerns to proper management. Each of these reasons show that, even if Plaintiff did not report her concerns that the urinalysis machine was malfunctioning or that there was blood in the water, Defendant still would have terminated her. Accordingly, summary adjudication is granted on this cause of action.

Second cause of action - wrongful termination in violation of public policy

Defendant argues this claim fails with her retaliation and discrimination causes of action. Plaintiff primarily re-argues her retaliation claims and the application of Health and Safety Code section 1278.5 and Labor Code section 6310. Defendant replies that these statutes only create a rebuttable presumption and that there are independent reasons for termination.

Plaintiff’s wrongful termination claim is rooted in her discrimination and retaliation claims. Because the Court grants summary adjudication on those claims, her wrongful termination claim necessarily fails.

Health and Safety Code section 1278.5 protects Hospital whistleblower employees from discrimination or retaliation. If the discriminatory action occurs within 120 days of the employee filing the grievance or complaint, “[t]here shall be a rebuttable presumption that discriminatory action was taken.” (Health & Saf. Code, § 1278.5, subd. (d)(1), italics added.) Based upon the analysis above, the Court finds that the presumption has been rebutted.

Similarly, Labor Code section 6310 protects employees from discharge if they made a complaint on the employer to governmental agencies with statutory responsibility over employee safety or health. As a federal court has noted, “‘no parallel statute exists setting forth the respective parties’ burdens for a whistleblower retaliation claim brought pursuant to section 6310, subdivision (b).’” (Rodriguez v. Laboratory Corp. of America (C.D.Cal. Aug. 25, 2022, No. CV 21-00399-MWF (JCx)) 2022 U.S.Dist.Lexis 184659, *17-18.) Thus, the three-step burden shifting framework under McDonnell Douglas framework applies and again, the above analysis is incorporated here. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [because the FEHA claim fails, the wrongful termination claim also fails].) Thus, summary adjudication is granted on this cause of action.

Defendant contends that Plaintiff cannot show actionable harassment or discrimination on which this claim depends. Plaintiff argues that employers have obligations to conduct reasonable investigations into harassing conduct.

Plaintiff’s opposition fails to address the threshold issue. “There cannot be a claim for failure to take reasonable steps necessary to prevent sex discrimination under section 12940, subdivision (k) if actionable sex discrimination has not been found.” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1318.) Because the Court grants summary judgment on the retaliation claim, this claim also fails.

As to sexual harassment, Plaintiff did not plead a separate cause of action for sexual harassment. She also failed to allege “sufficiently severe or pervasive [conduct] so as to alter the conditions of employment and create an abusive work environment” that is required to sustain a claim for sexual harassment. (Id. at p. 1313.) “A party cannot successfully resist summary judgment on a theory not pleaded. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) Plaintiff’s cited cases all involve a plaintiff separately alleging a claim for sexual harassment. (Hathaway v. Runyon (9th Cir. 1997) 132 F.3d 1214, 1216; Fuller v. City of Oakland (9th Cir. 1995) 47 F.3d 1522, 1525; Ogden v. Wax Works, Inc. (8th Cir. 2000) 214 F.3d 999, 1002.) Thus, summary judgment is granted on this cause of action.

Defendant argues that Plaintiff is not an employee, so she is not entitled to records. Plaintiff argues that a “special relationship” arises if an employer lends another employee to another employer. She also states that the Hospital has exercised considerable direction and control over her employment, and she has worked there for an extensive period. Defendant responds that the “borrowed servant” doctrine only applies to torts.

Labor Code section 1198.5, subdivision (a) states that “every current and former employee” has the “right to inspect and receive a copy” of her personnel records. (See also Lab. Code, § 226, subd. (b).)

“In the context of an individual who is employed by a temporary agency and assigned to work on the premises of the agency’s client, we believe the purpose of FEHA to safeguard an employee’s right to hold employment without experiencing discrimination is best served by applying the traditional labor law doctrine of ‘dual employers,’ holding both the agency and the client are employers and considering harassment by an employee of the client coworker harassment rather than harassment by a third party.” (Mathieu v. Norell Corp., supra, 115 Cal.App.4th at p. 1183.)

Defendant provides no legal authority for its proposition that the borrowed servant doctrine only applies to tort claims.

Furthermore, even if the doctrine did not apply, Defendant still fails to provide sufficient evidence that Plaintiff is not an employee. Defendant asserts that “Plaintiff is a traveler nurse who was placed by her staffing agency, Emerald Health Services, at AVH under an assignment contract for a specific term.” (DUMF 2.) In support, the Hospital provides the testimony of Plaintiff, who merely states that she is a travel nurse. As with Wilson working in a physician group, being a travel nurse does not inform the Court whether Plaintiff is an independent contractor. As to the “Traveler Assignment Confirmation Form” that Defendant submits, it is illegible. Defendant fails to meet its initial burden and summary adjudication is denied as to this cause of action.

Defendant contends that it conducted an adequate investigation into Wilson’s alleged battery and that there is no evidence of retaliation or discrimination. Plaintiff argues that the Hospital, through Randenberg, ratified Wilson’s conduct by conducting an inadequate investigation. Defendant replied that Plaintiff was not subject to additional harassment after her report of the alleged battery, and she resumed her regular duties.

Under Civil Code section 3294, subdivision (a), punitive damages may be awarded if the plaintiff proves by clear and convincing evidence that the defendant is guilty of fraud, oppression or malice.

For employers, there are three situations in which liability may be imposed: “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless [1] 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 [2] ratified the wrongful conduct for which the damages are awarded or [3] 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, subd. (b).)

“The issue commonly arises where the employer or its managing agent is charged with failing to intercede in a known pattern of workplace abuse, or failing to investigate or discipline the errant employee once such misconduct became known.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 726.)

Ratification may be shown by circumstantial, or direct, proof of corporate agents’ adopting or approving employees’ actions, such as employers’ failing to fully investigate or discipline, after being informed of employees' wrongful actions. (Roberts v. Ford Aerospace and Communications Corp. (1990) 224 Cal.App.3d 793, 801.)

Here, Defendant does not contest Plaintiff’s assertion that Randenberg is a “managing agent.” (PUMF 92.) Defendant’s contention goes to the merits that it properly investigated Plaintiff’s complaint of Wilson’s conduct and found it to be unsubstantiated. (DUMF 9.) Defendant purports to support this fact with “AVH Investigatory File of Dr. Lawrence Wilson.” This document was not provided to the Court.

Even assuming this statement is true, Plaintiff opposes it by providing her own evidence that certain witnesses were not interviewed. Notably, she asserts that the Hospital never interviewed Wilson. (PUMF 47.) In his deposition, Wilson testified that he only discussed the investigation on his last day of work in September 2018 and was merely informed that the investigation was unsubstantiated. This was the first time he heard of the investigation. (PUMF 49.) Plaintiff also alleges that she informed Sarah Baldwin and Melissa Mac of the incident, but they were never interviewed. (PUMF 7, 36.) Defendant disputes this but concedes that Baldwin was never interviewed because she never responded to the request by the investigator, Marie Reed of Human Resources. (Kim Decl., Ex. 5, Reed Depo., p. 82:16-21.)[3] Defendant fails to indicate why Mac was never contacted. There is also evidence that the investigation was cursorily done, with hand-written notes and a very brief report. (Azizollahi Decl., Ex. 7 [August 2018, two-sentence, hand-written report that investigation was unsubstantiated]; Ex. 13 [hand-written notes]; but see Ex. 12 and 14 [detailed, two-page written report of a preliminary investigation].)

In any event, the Court does not find that the evidence provided by Defendant establishes that the investigation was adequate.[4] Failure to interview the person claimed to have committed the battery could lead a jury to conclude that the investigation was not especially thorough. Thus, it becomes a triable issue of fact on whether the investigation amounts to a ratification of Wilson’s conduct to hold the Hospital liable for exemplary damages. Accordingly, summary adjudication is denied for exemplary damages on the First Cause of action. (Because of the summary adjudication disposing of the FEHA claims, the issue of exemplary damages is moot as to them.

Summary judgment is denied. Summary adjudication is granted on all causes of action except battery, access to personnel records, and request for punitive damages. That is, the second, third, fourth, fifth, and sixth causes of action are summarily adjudicated against Plaintiff Berry and in favor of Defendant Hospital.

[1] The Court refers to the Separate Statement throughout as opposed to the individual evidence because, as earlier noted, Defendant provided the supporting evidence as separate attachments in different documents. For example, it filed a standalone “Evidence in Support” document consisting of 73 pages. In addition, it attached deposition transcripts as part of its Separate Statement without labeling each deposition or by exhibit number. This is improper under California Rules of Court, rule 3.1350(d)(3), requiring that citation to the evidence reference the “exhibit, title, page, and line numbers.”

[2] Plaintiff’s opposition does not make the “shifting reasons” argument under the heading for FEHA retaliation; rather, it is under the general heading of “Statement of Facts.” Because Plaintiff submitted a disorganized brief, the Court is forced to guess which claimed fact applies to which cause of action. For example, in that same “shifting” argument, Plaintiff also incorporates facts as to the urinalysis machine and patient safety, which should have been directed at the whistleblower retaliation and wrongful termination claims instead.

[3] The rest of the deposition suggests that Baldwin failed to respond to Reed’s subsequent invitations to interview, but because Defendant failed to provide the rest of the transcript, the Court cannot infer that this occurred.

[4] The detailed, two-page preliminary reports were actually provided by Plaintiff, not Defendant.

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