Judge Daniel M. Crowley, Case Number: 20STCV30610, Date: 2023-11-21 Tentative Ruling

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Defendants Dignity Health dba St. Mary Medical Center Long Beach’s and Carolyn Caldwell’s motion for summary judgment is denied.

Defendants Dignity Health dba St. Mary Medical Center Long Beach (“SMMC”) and Carolyn Caldwell (“Caldwell”) (collectively, “Defendants”) move for summary judgment against Plaintiff Nancy Valla (“Valla”) (“Plaintiff”) on her first amended complaint (“FAC”) on the grounds there are no triable issues of material fact and Defendants are entitled to judgment as a matter of law. (Notice of Motion, pg. 2; C.C.P. 437c.)

In the alternative, Defendants move for summary adjudication on the 1st (retaliation in violation of Labor Code §1102.5) [Issue 1], 2nd (retaliation and discrimination in violation of Health & Safety Code §1278.5) [Issues 2 and 3], 3rd (retaliation in violation of FEHA, Gov. Code §12940(h)) [Issue 3], 4th (failure to engage in the interactive process in violation of FEHA, Gov. Code §12940(n)) [Issue 5], 5th (failure to accommodate disability in violation of FEHA, Gov. Code §12940(m)(1)) [Issue 6], 6th (disability discrimination in violation of FEHA, Gov. Code §12940(a)) [Issue 4], 7th (intentional infliction of emotional distress) [Issues 10, 11, and 12], 8th (failure to prevent discrimination in violation of FEHA, Gov. Code §12940(k)) [Issue 7], 9th (wrongful termination in violation of public policy) [Issue 9], and 10th (wrongful termination in violation of FEHA) [Issue 8] causes of action, and on Plaintiff’s prayer for punitive damages [Issue 13]. (Notice of Motion, pgs. 2-4; C.C.P. §437c(f).)

Plaintiff’s 11/7/2023 evidentiary objections to the Declaration of Caldwell are overruled as to Nos. 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 24, and 32 and sustained as to Nos. 3, 4, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, and 33.

Plaintiff’s 11/7/2023 evidentiary objections to the Declaration of Ardel G. Avelino (“Avelino”) are overruled as to Nos. 35, 36, 37, 38, 39, 40, 41, 43, 44, 45, and 51, and sustained as to Nos. 34, 42, 46, 47, 48, 49, 50, and 52.

Defendants’ 11/16/2023 evidentiary objections to the Declaration of ______[1] are overruled as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15,[2] 16, 17, 18, 19, 20, and 21.

Defendants’ 6/16/2023 request for judicial notice of Complaint before the Department of Fair Employment and Housing and Right to Sue letter, both dated March 20, 2020 (originally Exhibit “2” to Plaintiff’s January 7, 2021, Deposition) is granted. (D-RJN, Exh. 1.)

On August 12, 2020, Plaintiff filed her initial complaint in the instant action against Defendants. On December 5, 2022, Plaintiff filed the operative FAC against Defendants alleging ten causes of action for (1) retaliation in violation of Labor Code §1102.5; (2) retaliation and discrimination in violation of Health and Safety Code §1278.5; (3) retaliation in violation of FEHA, Government Code §12940(h); (4) failure to engage in the interactive process in violation of FEHA, Government Code §12940(n); (5) failure to accommodate disability in violation of FEHA, Government Code §12940(m)(1); (6) disability discrimination in violation of FEHA, Government Code §12940(a); (7) intentional infliction of emotional distress; (8) failure to prevent discrimination in violation of FEHA, Government Code §12940(k); (9) wrongful termination in violation of public policy; and (10) wrongful termination in violation of FEHA. (See FAC.)

On June 16, 2023, Defendants filed the instant motion for summary judgment, or alternatively summary adjudication of issues. (Notice of Motion, pgs. 2-4.) Plaintiff filed her opposition on November 7, 2023. Defendants filed their reply on November 16, 2023.

Plaintiff alleges she was employed by Defendants as a Chief Nurse Executive Office (“CNEO”) at SMMC from April 9, 2018, until May 21, 2019, located at or near 1050 Linden Avenue, Long Beach, California 90813. (FAC ¶12.) Plaintiff alleges prior to her employment she was the Chief Nursing Officer of the American Hospital in Dubai from 2014 to 2018. (FAC ¶12.)

Plaintiff alleges on or around May 15, 2018, Plaintiff was alerted that several of the c-section trays that were supposed to be sterile were opened to reveal dirty instruments covered in what appeared to be blood. (FAC ¶14.) Plaintiff alleges she notified Caldwell, the President and Chief Executive Officer at SMMC and Plaintiff’s supervisor, on or around May 21, 2018, that there was a massive backlog due to the need to re-sterilize all of the instruments. (FAC ¶14.) Plaintiff alleges the next day, three more trays with dirty instruments were discovered, none of which contained signatures or initials on the paper inside to indicate who approved them. (FAC ¶14.)

Plaintiff alleges several months later, the problem persisted. (FAC ¶15.) Plaintiff alleges on or around January 3, 2019, she was notified that almost all the instruments were coming out of the sterilizer with rust spots and brown patches on them, causing the Sterile Processing Department to have to open all trays to check for stains. (FAC ¶15.) Plaintiff alleges in a group conversation with Caldwell and Chief Operating Officer Bonnie Panlasigui (“Panlasigui”), Plaintiff emphasized that they knew about the sterilization filter issue for months. (FAC ¶15.) Plaintiff alleges Panlasigui claimed that this was the first time she was hearing of the issue. (FAC ¶15.) Plaintiff alleges she pointed out that it was brought up during several safety huddles and needed to be fixed as soon as possible. (FAC ¶15.)

Plaintiff alleges because the sterilization problem caused the hospital to divert cases, both Caldwell and Panlasigui pushed Plaintiff to end the diversion as soon as possible. (FAC ¶16.) Plaintiff alleges even though Plaintiff was still receiving reports of contaminated instruments, Caldwell ignored Plaintiff’s concerns in order to preserve the reputation of the hospital and ease the impatience of the physicians. (FAC ¶16.) Plaintiff alleges she stressed that instrument quality was imperative for patient safety and worked tirelessly to end the diversion, but the hospital was still operating with about half of the necessary trays by the end of the month. (FAC ¶16.) Plaintiff alleges she approached Panlasigui to discuss her frustrations and was later sent an angry text telling her she was not allowed to approach Panlasigui like that again and needs to be flexible given how old their building is. (FAC ¶16.)

Plaintiff alleges the sterilization problems continued throughout the end of February, when another machine failed due to overdue preventative maintenance. Plaintiff discovered the issue on or around February 25, 2019, and reported it to Caldwell, emphasizing the fragile state of their sterilization department and imploring the hospital to adopt a better plan. (FAC ¶17.) Plaintiff alleges Caldwell admitted that these issues are the result of years of neglect. (FAC ¶17.)

Plaintiff alleges on or around March 2, 2019, Plaintiff was alerted by a co-worker that there had been an incident located at the Medical Center’s parking structure and that her assistance would be needed. (FAC ¶18.) Plaintiff alleges when she arrived, she found that a woman, Daphne Stewart (“Stewart”), had leapt from the eighth floor of the parking structure to the ground level. (FAC ¶18.) Plaintiff alleges this was not the first time such an incident had taken place. (FAC ¶19.) Plaintiff alleges in or around 2013, a man had leapt off the parking structure, which is the tallest publicly accessible building in Long Beach, to his death. (FAC ¶19.) Plaintiff alleges following the 2013 incident, SMMC had been fined $50,000 and encouraged to create a mechanism to deter future suicide attempts. (FAC ¶19.) Plaintiff alleges however, no such mechanism was put in place. (FAC ¶19.)

Plaintiff alleges while at the scene of the 2019 incident, Plaintiff learned through a co-worker that a cardiologist who worked at SMMC had discovered Stewart’s body and determined that she had a faint pulse. (FAC ¶20.) Plaintiff alleges though the cardiologist alerted SMMC’s emergency department, nothing was done by emergency services to help Stewart. (FAC ¶20.) Plaintiff alleges SMMC’s Emergency Director, Pam Fair (“Fair”), erroneously believed that the hospital only had a duty to render emergency services to injured persons within 250 feet of hospital facilities, under the Emergency Medical Treatment and Active Labor Act (“EMTALA”). (FAC ¶20.) Plaintiff alleges however, the law states that hospitals are required to render these services to injured persons within 250 yards of hospital facilities, not 250 feet. (FAC ¶20.) Plaintiff alleges Stewart was within 250 yards of SMMC’s facilities when she jumped from the parking structure but received no assistance from SMMC’s emergency services and eventually succumbed to her injuries. (FAC ¶20.)

Plaintiff alleges immediately following her discovery of SMMC’s negligent role in Stewart’s death, Plaintiff began to experience severe emotional and psychological distress. (FAC ¶21.) Plaintiff alleges she was experiencing nightmares, sleeplessness, and trouble focusing. (FAC ¶21.) Plaintiff alleges she was constantly haunted by dreams of Stewart and found herself obsessively returning to the scene of the incident. (FAC ¶21.) Plaintiff alleges she was particularly disturbed by the cardiologist’s report that Stewart had a pulse when he discovered Stewart, and nothing was done by SMMC to render her necessary aid. (FAC ¶21.)

Plaintiff alleges on or around March 4, 2019, the Monday after Stewart’s death, Plaintiff alerted her team that she was having a hard time grappling with the incident and would be seeking help through the Employee Assistance Program (“EAP.”) (FAC ¶22.) Plaintiff alleges these issues eventually began to impact Plaintiff’s ability to sleep and function in her daily life, as she became prone to feelings of helplessness and anxiety. (FAC ¶22.)

Plaintiff alleges on or around March 5, 2019, Plaintiff met with Caldwell to discuss the emotional trauma she was experiencing in the aftermath of Stewart’s death. (FAC ¶23.) Plaintiff alleges she conveyed to Caldwell that she was particularly shaken about the possibility that Stewart could have been saved if SMMC’s emergency services had helped her sooner and followed the EMTALA guidelines accordingly. (FAC ¶23.) Plaintiff alleges after listening to Plaintiff’s distress over this incident, Caldwell brazenly compared Stewart to a dog on the side of the highway that had been hit by a car and was most likely dead even though it was still moving a little bit. (FAC ¶23.) Plaintiff alleges this shocking statement took an enormous emotional toll on her. (FAC ¶23.)

Plaintiff alleges shortly after her meeting with Caldwell, she became extremely emotional, began crying, experiencing headaches, and had difficulty concentrating during meetings with staff members. (FAC ¶24.) Plaintiff alleges this occurred in no fewer than five office meetings, including three with Caldwell present. (FAC ¶24.)

Plaintiff alleges on or around March 7, 2019, she was approved by EAP for eight in-person sessions with a psychotherapist. (FAC ¶25.) Plaintiff alleges she alerted Caldwell, as well as human resources at SMMC, that she would need to leave work early to attend her sessions. (FAC ¶25.)

Plaintiff alleges on or around March 7, 2019, the same day that she was approved for EAP therapy sessions, she felt morally compelled to address and remedy the safety issue concerning SMMC’s parking structure. (FAC ¶26.) Plaintiff alleges she met with many members of SMMC’s leadership team, including Caldwell and Panlasigui, and strongly encouraged them to take action and construct a barrier to prevent future incidents. (FAC ¶26.) Plaintiff alleges her efforts were dismissed and disregarded. (FAC ¶26.) Plaintiff alleges she was laughed at by Panlasigui and told that constructing a barrier was impossible, too costly, and would lead to further questioning which would make SMMC look guilty. (FAC ¶26.) Plaintiff alleges she became visibly shaken at the meeting. (FAC ¶26.) Plaintiff alleges despite the resistance, she implored the leadership team to at least research the possibility of constructing a barrier that would fit within SMMC’s budget and even offered to pay for the barrier herself. (FAC ¶26.)

Plaintiff alleges on or around March 13, 2019, while in Caldwell’s office for conference call with Panlasigui, Plaintiff again inquired about the possibility of building a safety barrier for the parking structure and again offered to pay for the barrier herself. (FAC ¶27.) Plaintiff alleges Panlasigui ignored Plaintiff and began the conference call without responding to her inquiries and concerns. (FAC ¶27.)

Plaintiff alleges on or around March 14, 2019, Plaintiff asked Panlasigui how research was going concerning the possibility of constructing safety barrier for the parking structure. (FAC ¶28.) Plaintiff alleges Panlasigui told Plaintiff that it probably would not be funded because of budget constraints. (FAC ¶28.) Plaintiff alleges she again offered to pay for the barrier herself. (FAC ¶28.) Plaintiff alleges Panlasigui again ignored Plaintiff’s comments and did not respond. (FAC ¶28.)

Plaintiff alleges on or around March 19, 2019, during a meeting with Medical Center staff, Plaintiff again recommended the construction of a safety barrier for the parking structure. (FAC ¶29.) Plaintiff alleges her concerns were again dismissed and ignored. (FAC ¶29.)

Plaintiff alleges on or around March 19, 2019, Plaintiff had another meeting with Caldwell regarding her continued emotional and psychological distress. (FAC ¶30.) Plaintiff alleges after listening to her concerns, Caldwell callously responded to her that her condition would go away soon and there was nothing they could do. (FAC ¶30.) Plaintiff alleges when she confided that she had begun seeking additional assistance from her priest to navigate her emotional wellbeing, Caldwell told her that it was too bad that she had to use a man to talk to God and that Caldwell’s religion allowed her to speak directly to God. (FAC ¶30.) Plaintiff alleges she felt hopeless, anxious, and depressed. (FAC ¶30.)

Plaintiff alleges on or around March 20, 2019, Plaintiff spoke with Caldwell again concerning her continued emotional and psychological distress. (FAC ¶31.) Plaintiff alleges she confided in Caldwell that she had been spontaneously crying and did not think she could attend an upcoming work function. (FAC ¶31.) Plaintiff alleges in response, Caldwell unsympathetically told Plaintiff that her absence would be noticed and that again she would be getting over her feelings soon. (FAC ¶31.)

Plaintiff alleges on or around March 22, 2019, Plaintiff spoke with Caldwell again and conveyed that she was having extreme emotional and psychological distress. (FAC ¶32.) Plaintiff alleges in response, Caldwell told Plaintiff to push her feelings aside like nurses and doctors do and instructed her not to focus on her feelings so much. (FAC ¶32.) Plaintiff alleges at a SMMC staff celebration later that day, she was forced to push her feeling aside and take pictures with her team members. (FAC ¶32.) Plaintiff alleges during the celebration, Caldwell told Plaintiff that it was good for Plaintiff to be happy. (FAC ¶32.)

Plaintiff alleges in or around March of 2019, following conversations concerning her emotional and psychological condition and persistent efforts to construct a safety barrier for SMMC’s parking structure, Plaintiff was forced by Defendants on multiple occasions to cancel her EAP psychotherapy sessions and instead attend mandatory, unexpected meetings that Caldwell described as “very important.” (FAC ¶33.) Plaintiff alleges she was routinely met with resistance from Defendants, who would get upset with her when she tried to skip these meetings to seek professional help for her mental health. (FAC ¶33.) Plaintiff alleges these meetings were not “very important.” (FAC ¶33.) Plaintiff alleges her required attendance at these meetings in lieu of her medical treatment was done intentionally by Defendants in retaliation for and discrimination against Plaintiff for her medical disability and her efforts concerning the safety barrier. (FAC ¶33.)

Plaintiff alleges on or around March 29, 2019, at a meeting with Caldwell and other SMMC leadership, she conveyed that she was still experiencing severe emotional and psychological distress. (FAC ¶34.) Plaintiff alleges she told Defendants that she needed to attend her EAP sessions but that she was unable to due to these “very important” meetings. (FAC ¶34.) Plaintiff alleges in response, Defendants told Plaintiff to schedule her EAP sessions for other dates. (FAC ¶34.)

Plaintiff alleges on or around April 1st and April 8th of 2019, Caldwell explicitly told Plaintiff that she would need to reschedule her EAP sessions, even after being made aware of her continued emotional and psychological issues. (FAC ¶35.) Plaintiff alleges on or around April 15, 2019, Plaintiff was forced again to miss another EAP session due to a “very important” meeting. (FAC ¶36.)

Plaintiff alleges on or around April 25, 2019, Plaintiff informed Caldwell and Human Resources that she was not improving, could not concentrate at work and was still spontaneously crying during the workday. (FAC ¶37.) Plaintiff alleges eventually, she was forced to cancel all remaining meetings with her EAP therapist because Defendants failed to accommodate her medical needs, even as her condition continued to worsen. (FAC ¶37.)

Plaintiff alleges on or around May 7, 2019, Caldwell demanded that Plaintiff give a presentation at an executive committee meeting, despite Plaintiff feeling very sick. (FAC ¶38.) Plaintiff alleges after the meeting, several attendees advised Plaintiff that she should take time off. (FAC ¶38.)

Plaintiff alleges on or around May 9, 2019, Plaintiff was alerted by a biomedical technician that several of the hospital’s anesthesia machines were two years past their end-of-life date. (FAC ¶39.) Plaintiff alleges she immediately emailed Caldwell as well as Avelino, the Medical Center’s Senior Operations Director, and Ms. Rellar, the Quality, Risk, and Patient Safety Officer, to alert them that continued use of the machines would present a high risk for patients. (FAC ¶39.) Plaintiff alleges while she suggested the hospital purchase new machines, Caldwell expressed disapproval of her plan because it would involve rescheduling and cancelling cases requiring use of the compromised machines. (FAC ¶39.)

Plaintiff alleges on or around May 16, 2019, Plaintiff teared up in a meeting with Medical Center leadership, Caldwell, and several other SMMC staff. (FAC ¶40.) Plaintiff alleges after the meeting, Avelino, told Plaintiff she should consider taking time off. (FAC ¶40.)

Plaintiff alleges on or around May 22, 2019, as Plaintiff found it increasingly difficult to perform her duties and seeing no other recourse in sight, Plaintiff was forced to go on medical leave. (FAC ¶41.) Plaintiff alleges since that time, Plaintiff has been on disability for depression and PTSD. (FAC ¶41.)

Plaintiff alleges on or around May 28, 2019, the week following her last day of work, Plaintiff met with her EAP psychologist for the first time since March. (FAC ¶42.) Plaintiff alleges her psychologist was very concerned about her condition and he noted that her issues had gotten worse since they had last seen each other. (FAC ¶42.) Plaintiff alleges her psychologist encouraged her to focus on getting better. (FAC ¶42.)

Plaintiff alleges on or around June 4, 2019, two weeks into her medical leave, Plaintiff was informed by Caldwell that Defendants would be terminating her email access and requested that she did not communicate with employees regarding any business-related topics whilst on leave. (FAC ¶43.) Plaintiff alleges on or around June 6, 2019, while on leave, Plaintiff was informed by Defendants that they intended to begin finding a replacement for her if she was unable to return to work in the near future. (FAC ¶44.) Plaintiff alleges she inquired as to what the “near future” meant with regards to filling her position but Defendants did not provide her with any clarity. (FAC ¶44.)

Plaintiff alleges on or around July 17, 2019, she received a letter from Defendants stating that the hospital planned to find her replacement unless she could start working again by August 1, 2019. (FAC ¶45.) Plaintiff alleges on or around July 23, 2019, Plaintiff was advised by her psychologist that she would require prescription medication to treat her injuries if she intended to return to work by August. (FAC ¶46.) Plaintiff alleges on or around July 24, 2019, Plaintiff attempted to retrieve some personal items from her office but was unable to do so because the locks had been changed. (FAC ¶47.) Plaintiff alleges on or around August 16, 2019, in another attempt to retrieve some personal items from her office, she noticed that the nameplate outside of her office door had been removed. (FAC ¶48.)

Plaintiff alleges in or around September of 2019, Defendants hired a replacement for Plaintiff’s position. (FAC ¶49.) Plaintiff alleges on or around September 24, 2019, Plaintiff received a letter from Defendants stating that she had been replaced as CNEO and that the position was no longer available to her upon her return from medical leave. (FAC ¶50.)

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (C.C.P. §437c(c).)

A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (C.C.P. §437c(f)(2).) A party may move for summary adjudication as to one or more causes of action within an action if that party contends that the cause of action has no merit. 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. (C.C.P. §437c(f)(1).)

“[W]e now clarify that section 1102.6, and not McDonnell Douglas, supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims. [¶] By its terms, section 1102.6 describes the applicable substantive standards and burdens of proof for both parties in a section 1102.5 retaliation case: First, it must be ‘demonstrated by a preponderance of the evidence’ that the employee’s protected whistleblowing was a ‘contributing factor’ to an adverse employment action. (§1102.6.) Then, once the employee has made that necessary threshold showing, the employer bears ‘the burden of proof to demonstrate by clear and convincing evidence’ that the alleged adverse employment action would have occurred ‘for legitimate, independent reasons’ even if the employee had not engaged in protected whistleblowing activities.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712.)

Assuming, arguendo, Defendants’ motion presented the correct standard for the 1st cause of action, Plaintiff demonstrated a triable issue of material fact as to whether she had reasonable cause to believe that the information she disclosed to Defendants regarding the failure to install a barrier around the parking structure and failure to replace the anesthesia machines were violations of a state/federal statute or a violation of/noncompliance with a local/state/federal rule or regulation (P-AMF 1-2, 18-24)[3] and that her disclosure of information was a contributing factor in defendant’s decision to discharge her (P-AMF 29-35)[4].

Accordingly, Defendants motion for summary adjudication is denied as to Issue 1 of the 1st cause of action.

(b)(1) A health facility shall not discriminate or retaliate, in any manner, against a patient, employee, member of the medical staff, or other health care worker of the health facility because that person has done either of the following:

(A) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity.

(B) Has initiated, participated, or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility that is carried out by an entity or agency responsible for accrediting or evaluating the facility or its medical staff, or governmental entity.

(2) An entity that owns or operates a health facility, or that owns or operates any other health facility, shall not discriminate or retaliate against a person because that person has taken any actions pursuant to this subdivision.

(3) A violation of this section shall be subject to a civil penalty of not more than twenty-five thousand dollars ($25,000). The civil penalty shall be assessed and recovered through the same administrative process set forth in Chapter 2.4 (commencing with Section 1417) for long-term health care facilities.

(c) Any type of discriminatory treatment of a patient by whom, or upon whose behalf, a grievance or complaint has been submitted, directly or indirectly, to a governmental entity or received by a health facility administrator within 180 days of the filing of the grievance or complaint, shall raise a rebuttable presumption that the action was taken by the health facility in retaliation for the filing of the grievance or complaint.

(d)(1) There shall be a rebuttable presumption that discriminatory action was taken by the health facility, or by the entity that owns or operates that health facility, or that owns or operates any other health facility, in retaliation against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility or the entity that owns or operates the facility had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and the discriminatory action occurs within 120 days of the filing of the grievance or complaint by the employee, member of the medical staff or any other health care worker of the facility.

(2) For purposes of this section, discriminatory treatment of an employee, member of the medical staff, or any other health care worker includes, but is not limited to, discharge, demotion, suspension, or any unfavorable changes in, or breach of, the terms or conditions of a contract, employment, or privileges of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of any of these actions.

(e) The presumptions in subdivisions (c) and (d) shall be presumptions affecting the burden of producing evidence as provided in Section 603 of the Evidence Code.

Defendants erroneously argue Plaintiff’s Health and Safety Code claims are barred by the one-year statute of limitations. (Id.) Defendants cite to the proposition in Melamed v. Cedars-Sinai Medical Center that C.C.P. §340(a) is the governing statute of limitations for this cause of action. However, Melamed states, “Health and Safety Code section 1278.5 does not specify a time period in which a claim for a violation of the statute must be filed. . . . Under [C.C.P.] section 338, subdivision (a), ‘[a]n action upon a liability created by statute, other than a penalty or forfeiture’ must be brought within three years. Under [C.C.P.] section 335.1, which addresses the time for commencing general tort claims, a plaintiff has two years to file suit.” (Melamed v. Cedars-Sinai Medical Center (2017) 8 Cal.App.5th 1271, 1287 [stating on anti-SLAPP motion that it does not need to determine the applicable statute of limitations], rev. granted and transferred for reconsideration (2017) 395 P.3d 1110.)

Assuming, arguendo, C.C.P. §340(a) is the governing statute of limitations for this claim, Plaintiff raised a triable issue of material fact regarding her date of termination, Plaintiff was not informed that she was being replaced as CNEO until September 24, 2019. (P-AMF 48.)[5] Under the one-year statute of limitations, Plaintiff’s deadline to file would have been September 24, 2020, which was almost a month after she filed her lawsuit on August 12, 2020.

Accordingly, Defendants’ motion for summary adjudication of Issue 2 of the 2nd cause of action is denied.

Defendants collapse the evidentiary standards for two different causes of action, erroneously argue this Court must apply the McDonnell Douglas burden shifting framework to both the 2nd and 3rd causes of action. Defendants fail to provide legal support for their argument that the burden to produce evidence laid out in Health and Safety Code §1278.5 must conform to the McDonnell Douglas burden shifting framework adopted for FEHA discrimination claims. (See Motion Memo pgs. 17-22.). Because Defendants fail to provide the correct standard for the 2nd cause of action for Retaliation and Discrimination Violation of Health and Safety Code §1278.5, the Court will only examine the legal framework Defendants offer in Issue 3 for the cause of action for retaliation under FEHA.

“To establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘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. Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces 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 prove intentional retaliation.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042, internal citations omitted.)

“‘For protection under the “opposition clause,” an employee must have opposed an employment practice made unlawful by the statute.’ [Citation.] The question, therefore, is whether the [defendant] took adverse action against [the plaintiff] ‘because [he] ... opposed practices prohibited by the Act....’ [Citation.] Of course, ‘an employee’s conduct may constitute protected activity ... not only when the employee opposes conduct that ultimately is determined to be unlawfully discriminatory under the FEHA, but also when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA. [Citations.]” (Dinslage v. City & County of San Francisco (2016) 5 Cal.App.5th 368, 381.)

“An ‘adverse employment action,’ which is a critical component of a retaliation claim, requires a substantial adverse change in the terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063, quotation marks omitted.)

Plaintiff submitted evidence that she can demonstrate a prima facie case for retaliation. Specifically, Plaintiff submitted evidence she engaged in protected activities, including taking a leave due to disability. (P-AMF 31.)[6] Plaintiff submitted evidence that she was subjected to an adverse employment action. (P-AMF 48.) Plaintiff also submitted evidence of a causal link between her protected activities and the adverse employment action based on the proximity of her leave and termination. (P-AMF 31-48.) Accordingly, Plaintiff met her burden to demonstrate a prima facie case for retaliation.

Accordingly, Defendant’s motion for summary adjudication as to the 3rd cause of action is denied as to Issue 3 of the 2nd and 3rd causes of action.

Disability Discrimination in Violation of FEHA, Gov. Code §12940(a) (6th COA) [Issue 4]

A cause of action for discrimination based on disability requires a showing of the following elements: (1) plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of the job with or without reasonable accommodations; (3) plaintiff was subjected to defendant’s adverse employment decision; and (4) the adverse employment decision was because of plaintiff’s actual or perceived disability or medical condition. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.)

Under the McDonnell Douglas process for allocating burdens of proof and producing evidence, which is used in California for disparate-treatment cases under FEHA, the employee must first present a prima facie case of discrimination. (Moore v. Regents of the University of California (2016) 248 Cal.App.4th 216, 234, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354; McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) The burden then shifts to the employer to produce evidence of a nondiscriminatory reason for the adverse action. (Moore, 248 Cal.App.4th at pg. 235, citing Guz, 24 Cal.4th at pgs. 355-356.) At that point, the burden shifts back to the employee to show that the employer’s stated reason was in fact a pretext for a discriminatory act. (Id., citing Guz, 24 Cal.4th at pg. 356.)

Defendants argue summary adjudication of this cause of action is warranted because Plaintiff cannot establish a prima facie case for disability discrimination for the same reasons as stated for the cause of action for retaliation. (Motion Memo, pg. 22.) Defendants’ argument is puzzling, as there are different elements in a FEHA cause of action for discrimination compared to a FEHA cause of action for retaliation.

In order to make out a prima facie case of disability discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) suffered from a disability or was perceived as suffering from a disability, (2) could perform the essential duties of the job with or without accommodation, and (3) was subjected to an adverse employment action because of disability or perceived disability. (Moore, 248 Cal.App.4th at 234-235.)

Under FEHA, an adverse employment action is one which “materially affect[s] the terms, conditions, or privileges of employment.” (Yanowitz, 36 Cal.4th 1028, 1052.) The “materiality” test of adverse employment action explained in Yanowitz looks to “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,” and the test “must be interpreted liberally . . . with a reasonable appreciation of the realities of the workplace.” (Id. at pg. 1054.) “[T]here is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” (Id. at pg. 1055.)

Plaintiff met her burden to demonstrate a prima facie case of disability discrimination under the McDonnell Douglas burden-shifting framework. As a preliminary matter, it is undisputed that Plaintiff had a disability. (Defendant’s Undisputed Separate Statement of Fact [“D-USSF”] 50.) Plaintiff submitted evidence that she could perform the essential functions of her job with an accommodation, namely that she would be provided FMLA leave and that she would be prescribed medication in order to return to her position in August. (P-AMF 40, 41, 47.)[7] Plaintiff submitted evidence that she was subjected to an adverse employment action by having her employment terminated. (P-AMF 48.) Plaintiff met her burden to establish a prima facie case of disability discrimination under McDonnell Douglas, shifting the burden to Defendants to produce evidence of a nondiscriminatory reason for the adverse employment action.

As stated above, Defendants submitted evidence of its non-discriminatory reason for the adverse employment action. (D-DSSF 55; D-COE, Exh. X; see Exh. W.) Defendants met their burden to demonstrate a non-discriminatory reason for the adverse employment action.

Plaintiff has the opportunity “to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.” (Moore v. Regents of University of California (2016) 24 Cal.App.4th 216, 235.) Plaintiff must prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but a pretext for discrimination. (McDonnell Douglas, 411 U.S. at pg. 802.)

As stated above, Plaintiff sufficiently submitted evidence that Defendants’ proffered reasons for her termination are pretexts for discrimination. Salvo was serving as the interim CNE during her leave of absence and was more than capable of fulfilling the CNE role without need for replacement. (P-DSSF 55; P-COE Exh. U at 68:3-6, 72:4-10, 95:5-15.) Plaintiff submitted evidence that her replacement was not hired until after the TJC accreditation inspection in October of 2019. (P-DSSF 55; P-COE Exh. X at 241:1-6.) Plaintiff has met her burden on summary adjudication to demonstrate a triable issue of material fact as to whether Defendant’s proffered reasons for her layoff were pretexts for discrimination.

Based on the foregoing, Defendants’ motion for summary adjudication as to Issue 4 of the 6th cause of action for disability discrimination is denied.

Failure to Engage in Interactive Process in violation of FEHA (4th COA) [Issue 5] and Failure to Accommodate in Violation of FEHA, Gov. Code §12940(m)(1) (5th COA) [Issue 6]

Government Code §12940(n) provides as follows: “For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Gov. Code §12940(n).)

“Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)

The elements of a cause of action for failure to accommodate are: (1) plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of a sought reassigned job with or without reasonable accommodations; and (3) the employer failed to reasonably accommodate. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193 [reasonable accommodations include job restructuring, modified work schedules, reassignments, providing readers or interpreters, and paid or unpaid leave].) “Vague or conclusory statements revealing an unspecified capacity
are not sufficient to put an employer on notice of its obligations under the [FEHA].” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1248.)

Defendants argue Plaintiff’s claims fail because she received treatment through SMMC’s EAP program, she requested a leave of absence which was granted, and Plaintiff communicated with Defendants’ staff regarding her status throughout her leave, which was extended several times at Plaintiff's request. (Motion, pg. 24.) Defendant also argues Plaintiff’s doctor has not released her to return to work full-time yet and she has not returned to work in any capacity. (Motion, pg. 24.)

Defendants submitted evidence that it accommodated all of Plaintiff’s requests for accommodation. Specifically, Defendants submitted evidence that Plaintiff initially made appointments for treatment through SMMC’s EAP, and later, on or about May 22, 2019, Plaintiff took some time off and then went on an officially approved leave of absence. (D-DSSF 46; D-COE, Depo. of Valla at 135:3-18, 136:16-18, 138:16-142:6, Exhs. S, T.) Defendant submitted evidence that other than EAP and time off, Plaintiff did not request any other accommodations from SMMC and all of her requests for time-off were granted. (D-DSSF 47; D-COE, Depo. of Valla at 135:3-18, 136:16-18, 138:16-142:6, Exhs. S, W, Y, Z, BB.) Accordingly, Defendants met their burden on summary adjudication, shifting the burden to Plaintiff to demonstrate a triable issue of material fact as to whether Defendants failed to reasonably accommodate her.

Plaintiff met her burden to a triable issue of material fact as to whether Defendants failed to reasonably accommodate her. Specifically, Plaintiff submitted evidence that while she Plaintiff did have EAP as an accommodation, she also made repeated requests to be allowed to actually attend these sessions as she was routinely denied access to her appointments when Caldwell and Panlasigui would schedule “important” meetings that required Plaintiff’s presence, and Caldwell would also tell Plaintiff that her absence would be noted if she chose to attend her EAP sessions instead of the meetings. (P-DSSF 47; P-COE, Exh. S at 157:20-24, 158:10-159:12, 161:2-10.) Accordingly, Plaintiff met her burden on summary judgement as to whether Defendants failed to reasonably accommodate her.

Accordingly, Defendants’ motion for summary adjudication as to Issue 5 of the 4th cause of action and Issue 6 of the 5th cause of action is denied.

Failure to Prevent Harassment and Discrimination, Gov. Code §12940(k) (8th COA) [Issue 7]

A cause of action for failure to prevent discrimination includes the following elements: (1) actionable discrimination or harassment by employees or non-employees; (2) defendant’s legal duty of care toward plaintiff (defendant is plaintiff’s employer); (3) breach of duty (failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 287, 289.)

Defendants argue because all of Plaintiff’s claims arising under FEHA fail, so too must her duplicative claim for failing to prevent illegal conduct. (Gov. Code § 12940(k) [stating it is an unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent FEHA violations from occurring); Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 289 [stating there can be no failure to prevent any FEHA violations absent any actionable conduct].) In light of this Court finding Defendants failed to demonstrate Plaintiff’s causes of action under FEHA fail, Defendants fail to meet their burden on summary adjudication to demonstrate they are entitled to summary adjudication of this cause of action as a matter of law.

Accordingly, Defendants’ motion for summary adjudication as to Issue 7 of the 8th cause of action is denied.

FEHA does not provide for a cause of action for wrongful termination in violation of FEHA. (See CACI 2500-2570.). Plaintiff’s allegation of this cause of action appears to either duplicate her existing causes of action under FEHA or her cause of action for wrongful termination in violation of public policy. Further, Plaintiff’s opposition does not argue any issue pertaining to this cause of action. Defendants are entitled to summary adjudication of this cause of action, as it has no merit.

Accordingly, Defendants’ motion for summary adjudication as to the 10th cause of action is granted.

“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.)

Defendants argue they are entitled to summary adjudication of Plaintiff’s cause of action for wrongful termination because of the strength of Defendants’ “innocent explanation for its actions,” and because Plaintiff lacks “evidence supporting a rational inference that intentional [retaliation], on grounds prohibited by the statute, was the true cause of the employer’s actions.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 361.)

Defendants submitted evidence that Plaintiff was terminated for a non-retaliatory reason. (D-DSSF 55.) As stated above, Plaintiff submitted evidence raising a triable issue of material fact as to whether she was terminated for a non-retaliatory reason. (P-DSSF 55.)

Based on the foregoing, Defendant’s motion for summary adjudication of Issue 9 of the 9th cause of action is denied.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ A defendant's conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

Defendants argue Plaintiff’s claim for intentional infliction of emotional distress fails against as to Caldwell because a stand-alone intentional infliction of emotional distress claim arising out of workplace conduct is barred by workers’ compensation exclusivity. (Miklosy v. Regents of Univ. of California (2008) 44 Cal.4th 876, 902.) Further, whistleblower retaliation is not included in the exception to workers’ compensation exclusivity. (Light v. Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 101, citing Miklosy, 44 Cal.App.4th at pgs. 902-903.). Defendants also argue nothing about the totality of the fact present here suggest any sort of extreme or outrageous conduct. (Motion Memo, pgs. 24-25.)

Defendants’ argument is unavailing because workers’ compensation exclusivity only extends to conduct which is part of the “normal risks of the employment relationship.” (Fretland v. County of Humbolt (1999) 69 Cal.App.4th 1478, 1492; Light, 14 Cal.App.5th at pg. 101 [“[W]e are unwilling to abandon the longstanding view that unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain and therefore claims of intentional infliction of emotional distress based on such discrimination and retaliation are not subject to workers’ compensation exclusivity”].) California courts have expressly carved out employer conduct based on discrimination and retaliation from workers’ compensation exclusivity, including IIED claims. (See, e.g., Fretland (1999) 69 Cal.App.4th at pg. 1493 [reversing summary judgment on IIED and NIED claims holding that such claims were not preempted by workers’ compensation where they were based on allegations of discrimination violation of FEHA].)

Accordingly, Defendants’ motion for summary adjudication of Issues 10, 11, and 12 of the 7th cause of action is denied.

The central question regarding punitive damages on a summary judgment motion is whether “no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.” (Pacific Gas and Electric Co. v. Superior Court (2018) 24 Cal.App.5th 1150, 1159.) “Malice” means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard for the rights and safety of others.” (Civ. Code §3294(c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code §3294(c)(2).)

“[W]rongful termination, without more, will not sustain a finding of malice or oppression.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 717.)

The defendant has the initial burden to demonstrate there are no triable issues of fact that a managing agent caused harm to Plaintiff. (Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 369.) Conclusory statements that an employee “never drafted corporate policy or had substantial discretionary authority over decisions that ultimately determine [the employer’s] corporate policy” are not sufficient for a Defendant to make a prima facie case. (Id. at 369-370.)

Defendants argue as a corporate employer, SMMC cannot be assessed with punitive damages liability for the acts of its employees unless an “officer, director or managing agent” of SMMC “had advance knowledge of the unfitness of the employee who acted and employed him or her with a conscious disregard of the rights or safety of others or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” (Civ. Code §3294(b).) Defendants argue there is total absence of evidence from which oppression, fraud, or malice by a managing agent (other than Caldwell) could even be inferred, let alone proven.

Defendants failed to make a prima facie case that there are no triable issues of fact that a managing agent caused harm to Plaintiff. Plaintiffs merely cite to all facts in their separate statement of fact. However, Plaintiff’s points and authorities do not address the motion for summary adjudication of the claim for punitive damages. Plaintiff’s failure to file an opposition on this issue gives rise to an inference that the motion is well-taken. (See Laguna Auto Body v. Farmers Insurance Exchange (1991) 231 Cal.App.3d 481, 489 [failure to file an opposition to a motion “leading the trial court and us to presume they had no meritorious arguments”], disapproved of on other grounds by Garcia v. McCutchen (1997) 16 Cal.4th 469.)

Accordingly, Defendants are entitled to summary adjudication of Plaintiff’s claim for punitive damages.

Defendants’ motion in the alternative for summary adjudication is denied as to the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, causes of action, and granted as to the 10th cause of action and Plaintiff’s prayer for punitive damages.

[1] The Court assumes the ambiguous title of Defendants’ objections was the result of inadvertence and was likely intended to be objections to Plaintiff’s compendium of evidence. The Court also notes Plaintiff failed to include bookmarks to each exhibit included in her compendium of evidence.

[2] The Court notes objections 13 through 15 are identical and therefore redundant.

[3] Plaintiff is admonished for failing to number her additional material facts in her opposition separate statement. For clarity, the Court notes P-AMF Nos. 1 and 2 are on pages 40-41 of Plaintiff’s Opposition Separate Statement, and P-AMF Nos. 18-24 can be found from pages and lines 45:4-47:1.

[4] P-AMF 29-35 can be found on page 48:19-50:14 of Plaintiff’s Opposition Separate Statement.

[5] P-AMF 48 can be found on pages 53:22-54:1 of Plaintiff’s Opposition Separate Statement.

[6] P-AMF 31 can be found on page 49:9-15 of Plaintiff’s Opposition Separate Statement.

[7] P-AMF 40-41 can be found in Plaintiff’s Opposition Separate Statement on pages 51:24-52:10. P-AMF 47 can be found in Plaintiff’s Opposition Separate Statement on page 53:14-21.