Judge: Frank M. Tavelman, Case: 20BBCV00888, Date: 2022-07-29 Tentative Ruling
Case Number: 20BBCV00888 Hearing Date: July 29, 2022 Dept: A
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MP: |
Defendants Kaiser Foundation Health Plan, Inc.; Maxine
Chen; Charles T. Tang |
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RP: |
Plaintiff Hsing Chi Wen |
ALLEGATIONS:
Hsing Chi Wen ("Plaintiff") filed
suit against Kaiser Foundation Health Plan, Inc. (“D/Kaiser”); Maxine Chen (“D/Chen”);
and Charles T. Tang (“D/Tang”, and together, “Defendants”), alleging that Kaiser
hired Plaintiff as a junior data analysis.
Since Plaintiff’s hiring in October of 2017 Plaintiff experienced
discrimination and humiliation by managers D/Chen and D/Dang for being taking
paternity leave and for being Taiwanese.
On December 7, 2020, Plaintiff filed a
Complaint and later on December 24, 2020 a First Amended Complaint (“FAC”). On February 3, 3031, Plaintiff filed a Second
Amended Complaint (“SAC”) which alleges eight causes of action: (1)
Discrimination against National Origin in Violation of FEHA (against D/Kaiser);
(2) Discrimination against Mental Disability in Violation of FEHA (against D/Kaiser);
(3) Retaliation (against D/Kaiser); (4) Defamation Per Se (against D/Tang and D/Kaiser);
(5) IIED; (6) Constructive Discharge; (7) Failure to Pay Overtime (against D/Kaiser);
and (8) Penalties for Failure to Pay Overtime (against D/Kaiser).
HISTORY:
The Court received the Motion for
Summary Judgment filed by Defendants on April 29, 2022; the opposition filed by
Plaintiff on July 13, 2022; and the reply filed by Defendants on July 22, 2022.
RELIEF REQUESTED:
Defendants move for
summary judgment against Plaintiff; and, in the alternative, move for summary
adjudication as to each cause of action in the SAC.
ANALYSIS:
I. LEGAL
STANDARD
A party may move for summary
judgment in any action or proceeding if it is contended the action has no merit
or that there is no defense to the action or proceeding. (CCP §437c(a).) To
prevail on a motion for summary judgment, the evidence submitted must show
there is no triable issue of material fact, and that the moving party is
entitled to judgment as a matter of law. (CCP § 437c(c).) In other words, the
opposing party cannot present contrary admissible evidence to raise a triable
factual dispute.
“A defendant or cross-defendant
has met his or her burden of showing that a cause of action has no merit if the
party has shown that one or more elements of the cause of action, even if not
separately pleaded, cannot be established, or that there is a complete defense
to the cause of action. Once the defendant or cross-defendant has met that
burden, the burden shifts to the plaintiff or cross-complainant to show that a
triable issue of one or more material facts exists as to the cause of action or
a defense thereto. The plaintiff or cross-complainant shall not rely upon the
allegations or denials of its pleadings to show that a triable issue of material
fact exists but, instead, shall set forth the specific facts showing that a
triable issue of material fact exists as to the cause of action or a defense
thereto.” (CCP § 437c(p)(2).)
When ruling on a summary judgment
motion, the trial court must consider all inferences from the evidence, even
those contradicted by the moving party’s evidence. The motion cannot succeed
unless the evidence leaves no room for conflicting inferences as to material
facts; the court has no power to weigh one inference against another or against
other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th
833, 841.) In determining whether the facts give rise to a triable issue of
material fact, "the facts alleged in the evidence of the party opposing
summary judgment and the reasonable inferences there from must be accepted as
true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171,
179.)
With a summary judgment motion, a
three-step analysis is required of the trial court. (AARTS Productions, Inc.
v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the
trial court must identify the issues framed by the pleadings to determine if
the moving party can establishing a complete defense or otherwise showing there
is no factual basis for relief on any theory reasonably contemplated by the
opponent’s pleading. (Ibid.) Secondly, the court must determine whether
the moving party’s showing has established facts which negate the opponent’s
claim and justify a judgment in movant’s favor. (Ibid.) When a summary
judgment motion prima facie justifies a judgment, the third and final
step is to determine whether the opposition demonstrates the existence of a
triable, material factual issue. (Ibid.)
II. MERITS
The Court notes that Plaintiff’s brief uses the
terms “Chinese” both as a national origin and as a language. For the purposes
of clarity, the Court will use “Chinese” and “Taiwanese” as terms reflective of
national origin, and “Mandarin” as a term representing the language.
A.
First Cause of Action (Discrimination against
National Origin in Violation of FEHA)
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
v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355
Defendants argue that Plaintiff cannot
establish a national origin discrimination cause of action because (1)
Plaintiff was not performing competently in his position (Decl. D/Chen, ¶¶ 9-41;
Decl. Hollingsworth, ¶¶ 10-15); (2) Plaintiff cannot point to any
adverse employment action aside from his Personal Improvement Plan (“PIP”); (3)
D/Chen’s preference to speak English in the workplace does not show
discriminatory motive; (4) both D/Chen and Plaintiff are Taiwanese, which
fatally undermines a discrimination claim against D/Chen (Decl. D/Chen,
¶ 3); and (5) to the extent that the SAC alleges discrimination from D/Dang,
who is Chinese, it is undisputed that D/Dang did not make any of the decisions
beyond the alleged adverse employment actions (Decl. D/Dang, ¶¶ 7-8). The Court
finds that Defendants have satisfied their initial prima facie burden to
negate the national origin discrimination claim.
In opposition, Plaintiff argues that (1) he
received “Successful Performance” or “Excellent Performance” ratings in all
categories prior to taking paternity leave and being transferred to D/Chen’s
team, where his duties and job title did not change significantly (Decl. Wen,
¶¶ 3, 9, 18, Exh. 2); (2) Plaintiff was not trained in automation (Decl.
Wen, ¶ 8); (3) the PIP was a pretext for discrimination and harassment from D/Chen;
and (4) D/Chen’s aversion to speaking Mandarin in public, as well as D/Dang’s
Chinese national origin, show that Plaintiff was discriminated against due to
being Taiwanese.
B.
Second Cause of Action (Discrimination against
Mental Disability)
It is unlawful under the FEHA to discriminate
against an employee on the basis of mental disability. (Gov. Code
§ 12940(a).)
Defendants argue that (1) Plaintiff cannot show
that he suffered an adverse employment action, and that his mid-year review and
the PIP, as well as D/Chen and D/Dang’s criticisms of his work, do not meet the
definition of an adverse employment action as a matter of law, citing to Akers
v. County of San Diego (2002) 95 Cal.App.4th 1441, 1457 and James v.
C-Tran (9th Cir. 2005) 130 F.App'x 156, 157 (the latter case being simply
persuasive authority); (2) there is no evidence that Plaintiff’s disability was
known to Defendants at the time Defendants allegedly made adverse employment
actions; (3) Plaintiff was not competently performing in his position (Decl. D/Chen,
¶¶ 9-41; Decl. Hollingsworth, ¶¶ 10-15); (4) there were legitimate reasons,
relating to Plaintiff’s lack of competency, for the employment actions taken (Ibid.);
and (5) Plaintiff has no evidence that Defendants’ reasons for the employment
actions were pretextual.
As a preliminary matter, although Defendants
cite to the McDonnell Douglas burden-shifting framework and argue
Plaintiff is required to satisfy an initial prima facie burden on this
issue —and although Plaintiff also assumes the applicability of this standard
(Oppo., 7:21-27)—any initial burden placed on the non-moving party is
ordinarily contrary to the summary judgment standard. Even the case cited by
Defendants expressly states: “The McDonnell Douglas burden-shifting
framework was designed to apply to liability determinations at trial,
not at the summary adjudication stage. [Citation omitted.] Thus, the framework
does not affect the procedural rule, which we mentioned earlier, that imposes
on a defendant the initial burden when that party seeks summary adjudication.”
(Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926.
[Emphasis added.]) The Court will thus not apply the special burden-shifting
framework on the instant motion. The Court nonetheless finds that Defendants
have satisfied their initial prima facie burden to negate the mental
disability discrimination claim on each of their arguments; and so, the burden
shifts to Plaintiff to raise a triable issue of material fact on this claim.
In opposition, Plaintiff argues that he was not
reasonably accommodated by Defendants for his disability; that Defendants’
adverse employment actions were discriminatory in response to his taking
paternity leave and diagnosis of depression; and that Plaintiff notified D/Chen
that he was depressed when requesting to take one week off, but Chen did not
act to accommodate his mental disability after learning about it (Decl. Wen,
¶¶ 20-22).
The Court finds that Plaintiff does not meet
his subsequent burden to show a triable issue of material fact as to whether he
was discriminated against on the basis of mental disability. Plaintiff’s
contentions regarding Defendants’ discriminatory conduct are conclusory,
speculative, and unsupported by any substantive evidence. Plaintiff also does
not causally connect Defendants’ knowledge of his mental disability to any form
of discrimination. Plaintiff argues that he informed D/Chen of his depression diagnosis
when requesting additional leave in October of 2019; but the mid-year review,
Plaintiff’s placement on the PIP, and the majority of criticisms levied against
Plaintiff by D/Chen and D/Dang occurred prior to this date. And, although the
SAC alleges that Plaintiff informed Hollingsworth that he was suffering from
mental illness in October of 2019, this allegation is not substantiated by any
evidence. (SAC, ¶ 14.)
Further, although Plaintiff rebuts certain
criticisms made by D/Chen and D/Dang concerning the MARS automation project, he
fails to mention or refute other material competency evidence presented by Defendants.
For instance, Hollingsworth, who supervised Plaintiff before and after he was
assigned to the MARS project stated that Plaintiff took half a day or more to
complete tasks that should have taken one or two hours and required significant
coaching to maintain his performance. (Decl. Hollingsworth, ¶¶ 4-5.) Plaintiff
does not mention Hollingsworth in any argument or rebuttal. Plaintiff’s
arguments are simply unsupported by the evidence presented to the extent
required to raise a triable issue here.
C.
Third Cause of Action (Retaliation)
To establish retaliation under FEHA, a
plaintiff must show that “(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.”
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A
retaliation claim can be brought by an employee who has complained of conduct
reasonably believed to be discriminatory. (Id. at 1043; see also
Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 209-10.) “[A]lthough
an adverse employment action must materially affect the terms, conditions, or
privileges of employment to be actionable, the determination of whether a
particular action or course of conduct rises to the level of actionable conduct
should take into account the unique circumstances of the affected employee as
well as the workplace context of the claim.” (Yanowitz, supra, 36
Cal.4th at 1052.)
Defendants argue that (1) the alleged adverse
employment actions did not materially affect the terms, conditions, or
privileges of Plaintiff’s employment; (2) there is no causal link between
Plaintiff’s CFRA leave and any alleged adverse employment action; and (3)
Defendants had legitimate and non-pretextual reasons for all potentially
adverse employment actions. The Court finds that Defendants satisfy their prima
facie burden to negate the retaliation cause of action.
In opposition, Plaintiff argues that he
maintained “successful performance” or “excellent performance” ratings prior to
taking CFRA leave but was given lower ratings after taking leave.
The Court finds that Plaintiff does not meet
his burden to show a triable issue of material fact as to the retaliation cause
of action. Plaintiff’s only evidence for retaliation is the 6-month temporal
proximity between coming back from CFRA leave on February 11, 2019 and receiving
a negative mid-year performance review on July 26, 2019, six months later. Plaintiff
does not respond to Defendants’ citation to Clark County Sch. Dist. v.
Breeden (2001) 532 U.S. 268, 273, where the Supreme Court held that the temporal
proximity between an employer’s knowledge of “protected activity” and the
adverse employment action must be “very close” in order to show causality
between the two, for the purposes of a Title VII claim, when temporal proximity
alone is the only evidence of such causality. (Ibid.) The Supreme Court
cited to cases where three-month and four-month periods were too temporally
attenuated. (Id. at 273-74.) Although the instant matter concerns
California’s FEHA, and not the federal Title VII, the two pieces of legislation
serve very similar purposes, and so the Court will consider Clark County
for its persuasive value.
D.
Fourth Cause of Action (Defamation Per Se)
A cause of action for defamation per se
requires the following elements: (1) defendant made one or more of the
statements to a person other than plaintiff; (2) this person reasonably
understood that the statement was about plaintiff; (3) this person reasonably
understood there were grounds to find the statements defamatory; and (4)
defendant failed to use reasonable care to determine the truth or falsity of
the statements. (CACI 1704.)
Defendants argue that the defamation claim is
time-barred under the one-year statute of limitations; and that Defendants are
protected by the common-interest privilege.
In opposition, Plaintiff argues that the
continuing violation doctrine applies to Plaintiff’s defamation claim.
Defendants are correct in that defamation
claims are subject to a one-year statute of limitations pursuant to CCP
§340(c). In contrast, Plaintiff cites to no authority supporting the contention
that the continuing violations doctrine may be applied to defamation. The Court
has conducted its own research and has found no authority supporting this
application. The Court has, however, found federal authority supporting the
opposite contention: that defamation claims accrue immediately when the
tortious act is committed, and so do not evoke the continuing violations
doctrine. (Flowers v. Carville (9th Cir. 2002) 310 F.3d 1118, 1126
(quoting Lettis v. United States Postal Serv. (E.D.N.Y. 1998) 39
F.Supp.2d 181, 205.) The Court further notes that Plaintiff cites to no
evidence supporting the application of the continuing violations doctrine, even
if such application were held to be valid. The Court thus finds that Plaintiff
fails to satisfy his burden to show that there exists a triable issue of
material fact as to the defamation per se claim.
E.
Fifth Cause of Action (IIED)
The elements of intentional infliction of
emotional distress are (1) extreme and outrageous conduct (2) directed to the
plaintiff by defendant, (3) with the intention of (4) causing, or reckless
disregard of the probability of causing, (5) severe or extreme emotional
distress. (Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903.)
For conduct to be outrageous it must be so extreme as to exceed all bounds of
that usually tolerated in a civilized community. (See Ess v. Eskaton
Properties, Inc. (2002) 97 Cal. App. 4th 120, 130.) Generally, conduct will
be found to be actionable where the recitation of the facts to an average
member of the community would arouse his resentment against the actor, and lead
him to exclaim, “Outrageous!” (Ibid.)
As mentioned in the analysis on the second
cause of action, supra, neither party disputes that Plaintiff only
informed Defendants of his mental illness diagnosis in October of 2019, after
the mid-year review, Plaintiff’s placement on the PIP, and the majority of
criticisms levied against Plaintiff by Chen and Dang. Defendants thus satisfy
their prima facie burden to negative the IIED claim on the basis of
causality, and Plaintiff does not show a triable issue of material fact on the
issue of causality.
F.
Sixth Cause of Action (Constructive Discharge)
To prove a claim for constructive discharge, a
plaintiff must show that the employer intentionally created or knowingly
permitted working conditions so intolerable at the time of resignation that a
reasonable employer would realize that a reasonable person in the employee’s shoes
would be compelled to resign. (Galvan v. Dameron Hospital Assn. (2019)
37 Cal.App.5th 549, 559–60.) Intolerable conditions are defined as either
unusually aggravated or amounting to a continuous pattern. (Ibid.)
Defendants argue that Plaintiff’s evidence in
support of constructive discharge, that he received a negative mid-year
performance review, was placed on PIP, and was criticized and discriminated
against by D/Chen and D/Dang, are insufficient to support a constructive
discharge claim as a matter of law. In support of this contention, Defendants
cite to Turner v. AnheuserBusch, Inc. (1994) 7 Cal.4th 1238, 1251 and Simers
v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1273.
Defendants also argue that this claim fails against D/Chen and D/Dang generally
because they were not Plaintiff’s employer. The Court finds that Defendants
satisfy their prima facie burden to negate the constructive discharge
claim.
In opposition, Plaintiff argues that he
suffered continuous and unusually aggravated conditions when considering the
totality of the circumstances. Plaintiff argues that the PIP was vague and
ambiguous, and so materially impacted his employment requirements by socially isolating
and silencing him while he was harassed by his managers.
Turner supports the contention that a
single negative performance rating does not amount to a constructive discharge.
(Turner, supra, 7 Cal.4th at 1255.) In Simer, where
the plaintiff was a columnist, the appellate court found that evidence of a demotion,
placement on a performance plan, and a suspension of the plaintiff’s column
while an ethical investigation occurred did not rise to the level of continuous
or unusually aggravated conditions. (See Simer, supra, 18 Cal.App.5th
1248.) The court goes on to dismiss the plaintiff’s claims of reputational
damage and anxiety in the context of the constructive discharge claim, stating
that the plaintiff’s anxiety pending the outcome of the investigation and
avoidance of business associates and readers did not constitute evidence of
improper action or intolerable working conditions. (Id. at 1272 (“Necessarily,
when an employer undertakes a review of an employee's conduct, there will be a
passage of time before an investigation can be completed and it would be
expected the employee would experience anxiety.”) Simer also analyzes
the case of Thompson v. Tracor Flight Systems, Inc. (2001) 86
Cal.App.4th 1156 and cited positively to Thompson’s observation that “employers
have the right to unfairly and harshly criticize their employees, to embarrass
them in front of other employees, and to threaten to terminate or demote the
employee.” (Id. at 1276 (quoting Thompson, supra, 86 Cal.App.4th
at 1171-72.) Thompson goes on to conclude that “a continuous course of
such actions, uncorrected by management, can constitute objectively intolerable
working conditions.” (Ibid.)
A review of Turner, Simer, and Thompson
emphasizes that the standard for a constructive discharge claim is objective
and cannot be based on a plaintiff’s subjective reactions to an employer’s
actions. A constructive discharge claim also cannot be based on ordinary
actions an employer may take in the course of doing business, including the use
of performance improvement plans, disciplinary tools, demotions, and even
unfair and harsh criticism: unless those factors can be shown to be continuous
and uncorrected by management. Like the columnist plaintiff in Simer,
the evidence submitted by Plaintiff does not show a Thompson-eque
“overall campaign of harassment.” This alleged campaign includes the assignment
of tasks that were above Plaintiff’s capabilities and job title (Decl. Wen, ¶¶
3, 5), the absence of support to complete this task (Id. at ¶ 12), and
communication issues between Plaintiff and his managers (Id. at ¶¶
13-14). The only evidence, in fact, supporting Plaintiff’s claims is his own
declaration, which, at best, shows evidence that Plaintiff’s managers gave him
a new automation project that he concedes he did not have the skills to
complete, and who did not provide enough support to competently complete the
project. Although Plaintiff argues that the PIP’s requirements were “vague and
ambiguous” and were not based on an objective standard, Plaintiff includes no
evidence supporting this conclusion beyond Plaintiff’s own opinion. And, as
analyzed above in this ruling, Plaintiff’s statements of discriminatory conduct
by D/Chen and D/Dang are also conclusory, speculative, and attenuated. Thus,
Plaintiff’s allegations are distilled down an admitted inability to perform on a
new project that was improperly assigned to him in relation to his skillset and
job title. This evidence is not enough to support allegations of continuous and
aggravated working conditions, and so Plaintiff does not raise a triable issue
of material fact as to the constructive discharge claim.
G.
Seventh and Eighth Causes of Action (Failure to Pay
Overtime; Penalties for Failure to Pay Overtime)
Defendants argue that Plaintiff passes both the
“salary” and the “duties” tests for administrative exemption and so does not
qualify for overtime. Defendants assert that Plaintiff passes the “salary” test
because he earned more than twice the minimum wage from the time of hiring to
the time that he resigned. (Decl. Stegge, ¶ 7.) Defendants assert that
Plaintiff passes the “duties” test because Plaintiff performed coding work
relating to Kaiser’s marketing analytics (Decl. Rankin, ¶ 2; Ex. A Wen
Deposition, 212:23-214:5); Plaintiff admitted he was required to exercise
discretion and independent judgment in his work (Ex. A Wen Deposition,
212:23-214:5); Plaintiff admitted that he performed under only general
supervision and his job required specialized training and expertise (Ibid.);
and at least 90% of Plaintiff’s assignments required him to perform data
processing and analysis (Decl. Chen, ¶ 2; Decl. Hollingsworth, ¶ 3). The
Court thus finds that Defendants satisfy the prima facie burden to negate
the overtime claims.
In opposition, Plaintiff argues that he did not
pass the “duties” test because he was “only an analyst” performing simple
coding and reporting tasks and to manually enter reports.
Plaintiff does not raise any triable issues as
to the overtime claims. Plaintiff fails to sufficiently rebut any of the points
raised by Defendants; and his argument that his role as a junior data analyst
required him to only input manual reports and perform simple coding, even if
assumed true, would not remove him from exempt status. Plaintiff’s
non-qualification for automation coding tasks also does not remove him from
administrative exemption.
III. CONCLUSION
Accordingly, the Court grants the motion for
summary judgment in its entirety.
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RULING:
In the event the parties submit on this
tentative ruling, or a party requests a signed order or the court in its
discretion elects to sign a formal order, the following form will be either
electronically signed or signed in hard copy and entered into the court’s
records.
ORDER
Defendants
Kaiser Foundation Health Plan, Inc.; Maxine Chen; and Charles T. Tang’s Motion
for Summary Judgment came on regularly for hearing on July 29, 2022, with
appearances/submissions as noted in the minute order for said hearing, and the
court, being fully advised in the premises, did then and there rule as follows:
THE
MOTION FOR SUMMARY JUDGMENT IS GRANTED.
IT IS SO ORDERED.
DATE:
July 29, 2022 _______________________________
F.M. TAVELMAN, Judge
Superior
Court of California
County of Los Angeles