Judge Douglas W. Stern, Case Number: 20STCV13859, Date: 2023-05-19 Tentative Ruling

Marlon Valdivia, M.D., vs. Healthcare Partners Medical Group, PC, et al., Case No. 20STCV13859

Moving Parties: Defendants OptumCare Management, LLC, and Healthcare Partners Medical Group, PC (collectively Defendants)

Responding Party: Plaintiff Marlon Valdivia, M.D.

Plaintiff Marlon Valdivia, M.D., (Plaintiff) was hired by Defendants in October 2007. (Defendants’ UF 1). Plaintiff worked for Defendants until his termination in February 2019. (Motion at p. 6.) Plaintiff’s job performance evaluations from 2010-2016 generally exhibited a positive work performance from Plaintiff. (Plaintiff’s AMF Nos. 61-66.)

In early 2017, the 2016 manager’s evaluation received by Plaintiff outlined some areas where Plaintiff could improve. (Defendants’ UF 6.) On May 5, 2017, Plaintiff sustained an on-the-job left rib injury. (Defendants’ UF 7.) Plaintiff was granted medical leave from May 22, 2017, through July 12, 2017. (Defendants’ UF 14.) However, Plaintiff claims that he still had to perform work by completing reports during this time. (Plaintiff’s Ex. A, p. 77, ln. 19 – p. 78, ln. 18.) Plaintiff returned to work with limited push/pull/lift restrictions on July 13, 2017. (Defendants’ UF 15.) Defendants claim that Plaintiff returned to work without restrictions on July 21, 2017. (Defendants’ UF 16.) However, Plaintiff claims that he asked for ergonomic assessment for his workspace after he returned to work, but it was never provided. (Plaintiff’s Ex. A, p. 84, ln. 21 – p. 85, ln. 18.)

In early 2018, OptumCare Management, LLC, began providing management services to Healthcare Partners Medical Group. (Defendants’ UF 18.) Plaintiff received his 2017 manager’s evaluation in Spring 2018, which outlined several areas requiring improvement. (Defendants’ UF 20.) On July 25, 2018, Plaintiff requested forms for medical leave. (Defendants’ UF 26.) Eventually the forms were submitted and processed, and Plaintiff is granted intermittent medical leave for the period of October 17, 2018, through April 17, 2019. (Defendants’ UF 36-37.) Just prior to this, on October 2, 2018, Plaintiff receives a performance evaluation indicating that his performance is unsatisfactory. (Defendants’ UF 30-35.) On January 18, 2019, Defendants terminated Plaintiff’s employment on the basis that he did not meet the goals listed in his performance evaluations. (Defendants’ UF 51-52.)

After he sustained his injury, Plaintiff claims that in addition to never providing an ergonomic assessment for Plaintiff, Defendants never conducted an interactive session with Plaintiff, despite his report of pain and difficulty doing parts of his job due to the pain, and despite Plaintiff’s specific request for accommodation. (Plaintiff’s AMF No. 71.) Plaintiff also claims that his managers were hostile to him regarding the times he would have to miss work for medical appointments and would ask him to reschedule the appointments so that he would not miss meetings. (Plaintiff’s AMF No. 73.) During his employment, this caused Plaintiff to have to reschedule three or four therapy appointments. (Plaintiff’s AMF No. 74.) Further, Plaintiff disputes the criticisms that were in his performance evaluations and claims that the negative evaluations were a pretext for firing him due to his disability. (Plaintiff’s AMF Nos. 77-82.)

Plaintiff also claims that the criticism of his work performance increased after he filed for intermittent FMLA leave. (Plaintiff’s AMF No. 83.) Plaintiff indicates that he had to ask for more time to complete work because of the pain of his disability injury. (Plaintiff’s AMF No. 85.)

Defendants have moved for summary adjudication on several bases, arguing that there are no undisputed facts as to whether Plaintiff was discriminated against and the reasons for his termination.

Plaintiff and Defendants both make evidentiary objections to the other parties’ evidence. The Court does not find these objections to have merit. Objections overruled.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)

When interpreting § 437c, courts have held that a three-step analysis is required: (1) Identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading; (2) Determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor; and (3) Determine whether the opposition demonstrates the existence of a triable, material factual issue. (AARTS Production, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)

Summary Judgment may be granted only where all the supporting and opposition papers show there is no triable issue as to any material fact and the moving party is entitled to judgment “as a matter of law.” (CCP § 437c(c).)

As a result, the Plaintiff “must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851, fns. omitted; Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 562-563.)

The Defendant need only show the existence of a triable issue of material fact. (Union Bank v. Super Ct. (Demetry) (1995) 31 Cal.4th 573, 590; see Lopez v. SuperCt. (Friedman Bros. Invest. Co.) (1996) 45 Cal.4th 705, 713; Leslie G. v. Perfy & Assocs. (1996) 43 Cal.4th 472, 482.) Summary judgment would not be proper where the facts support a triable issue of fact.

Defendants have moved for summary adjudication on Plaintiff’s First Cause of Action for Disability Discrimination on two bases. The first one being that Plaintiff cannot establish a causal connection between his disability and the adverse employment action, and the second one being that Plaintiff was disciplined and terminated for legitimate business reasons.

To establish a prima facie case of discrimination, Plaintiff must show that (1) the employee is a member of a protected class; (2) the employee was qualified for the position sought or performing competently in the position held; (3) the employee suffered an adverse employment action; and (4) some other circumstance suggests a discriminatory motive. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802.) Plaintiffs prima facie burden is minimal. “The amount [of evidence] that must be produced in order to create a prima facie case is ‘very little.’” (Sischo-Nownejad v. Merced Community College Dist. (9th Cir. 1991) 934 F.2d 1104, 1111; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 197.)

Causation may be established by temporal proximity. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353-354 [“In the classic situation where temporal proximity [shows causation] an employee has worked for the same employer for several years, has a good or excellent performance record, and then, after engaging in some type of protected activity-disclosing a disability-is suddenly accused of serious performance problems, subjected to derogatory comments about the protected activity, and terminated. In those circumstances, temporal proximity, together with the other evidence, may be sufficient to establish pretext”].)

The burden then shifts to Defendant to prove with undisputed evidence that the termination was for a legitimate, non-discriminatory and non-retaliatory reason. (Caldwell, supra, 41 Cal.App.4th at 197.) If the employer produces a legitimate reason for the adverse employment action, the presumption of discrimination “drops out of the picture,” and the burden shifts back to the employee to prove that the claimed legitimate reason is merely a pretext. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042. “In responding to the employer’s showing of a legitimate reason for the complained-of action, “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,’ [citation], and hence infer ‘that the employer did not act for the [asserted] non-discriminatory reasons.’” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388-38.)

Plaintiff has presented evidence that he was often asked to move or reschedule his doctor’s appointments after he was injured and while on FMLA leave to give priority to work assignments and that Defendants failed to conduct interactive sessions and failed to accommodate his disability. According to the evidence presented by Plaintiff, he worked for years with generally good performance evaluations, then he was injured and his performance evaluations became consistently negative. Defendants assert that there was a legitimate reason for the adverse employment action against Plaintiff because Plaintiff’s performance reviews were not good. However, Plaintiff has presented evidence that this may have been pretextual because of the work that Plaintiff was missing because of his disability and the difficulties that he had completing work because of his disability. He asserts that the bad performance reviews were without merit.

Defendants assert in their reply that Plaintiff has not met his burden of showing that the reasons for the adverse employment action against him were pretextual. (Reply at p. 9.) Defendants argue that Plaintiff’s prior positive performance reviews are not relevant and that there is no temporal proximity between Plaintiff’s protected activity and the adverse employment actions. However, it clear from the timeline that while Plaintiff received a negative performance review prior to his injury, the negative performance reviews increased after his injury and request for leave.

From the evidence present by Plaintiff, it appears that there is a dispute as to the material facts regarding Plaintiff’s cause of action for disability discrimination and the reasons for his termination. Defendants’ motion for summary adjudication for Issue Nos. 1 and 2 is denied.

Defendants have moved for summary adjudication on Plaintiff’s Second Cause of Action for FEHA Retaliation on two bases. The first one being that Plaintiff cannot establish a causal connection between his protected activity and the adverse employment actions, and the second one being that Plaintiff was disciplined and terminated for legitimate business reasons.

As discussed above, Plaintiff has presented facts showing that there may have been a causal connection between his disability and the adverse employment action. His employment was terminated after he started taking FMLA time for his injury, and he began receiving bad performance reviews around the same time that he began taking time off for his disability.

Accordingly, Plaintiff’s cause of action for FEHA Retaliation survives. Defendants’ motion for summary adjudication for Issue Nos. 3 and 4 is denied.

Defendants have moved for summary adjudication on Plaintiff’s Fifth Cause of Action for Failure to Prevent Discrimination, Harassment or Retaliation because Plaintiff’s underlying discrimination and retaliation claims fail as a matter of law.

Because Plaintiff’s cause of actions for discrimination and retaliation survive, then his Fifth Cause of Action for Failure to Prevent Discrimination, Harassment or Retaliation also survives. Defendants’ motion for summary adjudication for Issue No. 5 is denied.

Defendants have moved for summary adjudication on Plaintiff’s Sixth Cause of Action for Discrimination on the Basis of the California Family Rights Act because Defendants did not deny or interfere with Plaintiff’s leave.

Violations of the California Family Rights Act (“CFRA”) fall into two categories: (I) interference claims and (2) retaliation claims. (Rogers v. County of Los Angeles (2011) 198 Cal. App. 4th 480, 487-488; Richey v. AutoNation, Inc., (2015) 60 Cal. 4th 909, 920.) Interference claims prevent employers from wrongly interfering with an employee’s approved leaves of absence, and retaliation or discrimination claims prevent employers from taking adverse employment actions against an employee because he exercised those rights. (Richey, supra, 60 22 Cal.4th at 920.)

To defeat defendant employer’s summary adjudication challenge as to a CFRA interference or retaliation claim, plaintiff need only establish the employee’s entitlement to CFRA leave rights and the employer’s interference with or denial of those rights. (Moore v. Regents of University of California (2016) 248 Cal. App. 4th 216, 250.)

Plaintiff has established that he was entitled to CFRA leave rights by virtue of his injury and subsequent disability. While Defendant allowed him to take medical leave, his manager consistently asked him to reschedule doctor’s appointments after he was injured so that he might work meetings. His employer also never conducted interactive sessions and did not provide accommodations for his disability.

Therefore, Defendants have not met their burden of showing that there are no undisputed material facts regarding Plaintiff’s claim for CFRA Discrimination. Defendants’ motion for summary adjudication for Issue No. 6 is denied.

Defendants have moved for summary adjudication on Plaintiff’s Seventh Cause of Action for Retaliation for Taking CFRA Leave on two bases. The first one being that Plaintiff cannot establish a causal connection between his protected activity and the adverse employment action, and the second one being that Plaintiff was disciplined and terminated for legitimate business reasons.

As discussed above, Plaintiff has presented evidence that there may have been a causal connection between his taking leave and his termination of employment. He began receiving consistently negative performance reviews after his injury, indicating that the negative performance reviews may have been a pretext for his eventual termination.

Accordingly, Defendants’ motion for summary adjudication for Issue Nos. 7 and 8 is denied.

Defendants have moved for summary adjudication on Plaintiff’s Eighth Cause of Action for Wrongful Termination in Violation of Public Policy because Plaintiff’s underlying discrimination and retaliation claims fail as a matter of law.

As indicated above, because Plaintiff’s underlying discrimination and retaliation claims survive, then his claim for Wrongful Termination would also survive.

Accordingly, Defendants’ motion for summary judgment for Issue No. 9 is denied.

Defendants have moved for summary adjudication as to Plaintiff’s claims for punitive damages.

To survive summary adjudication on his punitive damages prayer, Plaintiff must present clear and convincing evidence that Defendants are guilty of oppression, malice or fraud. (Cal. Civ. Code § 3294; Basich v. Allstate Ins. Co. (2001) 87 Cal. App. 4th 1112, 1121.)

As a preliminary matter, where an employer has made good faith efforts to prohibit discrimination, the employer cannot be said to have acted with malice. (White v. Ultramar (1999) 21 Cal. 4th 563, 575.) Similarly, merely showing an alleged violation of FEHA or wrongful termination, even if accompanied by “ill-advised” actions or negligence, is insufficient to prove malice against the corporation. (Scott v. Phoenix Schools, Inc. (2009) 175 Cal. App. 4th 702, 716.)

When there is no finding of corporate malice against a defendant, the plaintiff must prove an officer, director or managing agent acted with sufficient malice. (White, 21 Cal. 4th at 569.) The California Supreme Court has held that only employees who “exercise substantial independent authority and judgment over decisions that ultimately determine corporate policy” are “managing agents” for purposes of section 3294. (Id. at 573–74.) Under the heightened standard required to impose punitive damages, being a supervisor is not sufficient, even if the supervisory employee has the ability to hire and fire the employee. (White, 21 Cal.4th at 573; Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 421.) Instead, “the critical inquiry is the degree of discretion the employees possess in making decisions that will ultimately determine corporate policy.” (Id.) Discretionary authority refers to “formal policies that affect a substantial portion of the company and that are the type likely to come to the attention of corporate leadership. It is this sort of broad authority that justifies punishing an entire company for an otherwise isolated act of oppression, fraud, or malice.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 714.)

Defendants claim that they maintain policies prohibiting discrimination, harassment, and retaliation, provide several mechanisms for employees to voice any concerns, and investigate claimed violations, negating any claim of institutional malice by them. (Defendants’ UF 57-58.) That means that Plaintiff must provide evidence that an officer, director, or managing acted with sufficient malice or oppression and that the supervisor had discretionary authority over corporate policies such that the policies made by that person would come to the attention to the attention of corporate leadership.

Plaintiff has not provided sufficient evidence demonstrating that the persons responsible for his firing had this level of discretionary authority. In fact, in Plaintiff’s opposition, Plaintiff states that it is unknown whether the person who made the final decision regarding Plaintiff’s termination knew of Plaintiff’s protected status or acted with malice or oppression. (Opposition at p. 17.) However, if this is unknown, and Plaintiff cannot provide evidence demonstrating that this person acted with malice or oppression, then Plaintiff has not met his burden of countering Defendants’ argument that Plaintiff’s claim for punitive damages fails.

Defendants’ motion for summary adjudication for Issue No. 10 regarding Plaintiff’s claim for punitive damages is granted.

1. Defendants’ Motion for Summary Adjudication as to Issue No. 10 regarding Plaintiff’s claim for punitive damages is GRANTED.