Judge: Gail Killefer, Case: 21STCV45188, Date: 2023-04-21 Tentative Ruling
Case Number: 21STCV45188 Hearing Date: April 21, 2023 Dept: 37
HEARING DATE: April 21, 2023
CASE NUMBER: 21STCV45188
CASE NAME: Ulysses Malapo v. Southern California Permanente Medical Group, et al.
MOVING PARTY: Defendant, Southern California
Permanente Medical Group (“Permanente”)
OPPOSING PARTY: Plaintiff Ulysses Malapo
TRIAL DATE: August 15, 2023
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary
Judgment, or in the Alternative, Summary Adjudication
OPPOSITION: April 3, 2023
REPLY: April
14, 2023
TENTATIVE: County’s motion for
summary judgments is GRANTED. County is to provide notice and prepare a
proposed judgment.
This action arises out of the ongoing employment of Ulysses
Malapo (“Plaintiff”) with Defendant, Southern California Permanente Medical
Group (“Permanente”). Plaintiff alleges in his operative Complaint that he is a
Filipino man and began working for Permanente on April 26, 2010, as a
Registered Nurse (“RN”). Plaintiff alleges he suffered racial discrimination
and harassment, as well as a hostile working environment beginning in May 2021.
The Complaint alleges four causes of action: (1)
discrimination on the basis of race and/or color in violation of the Fair
Housing Employment Act (“FEHA”); (2) harassment on the basis of race and/or
color in violation of the FEHA; (3) failure to prevent discrimination,
harassment, and retaliation in violation of the FEHA; and (4) hostile work
environment harassment in violation of the FEHA.
Permanente now moves for summary judgment or, in the
alternative, summary adjudication on all of the following issues:
1.
Issue One: Plaintiff’s Cause of Action for Race
and/or Color Discrimination Under FEHA must be adjudicated against Plaintiff
because Plaintiff cannot make a prima facie showing of race and/or color
discrimination, Plaintiff did not suffer any adverse employment action,
Defendant had legitimate business reasons for its actions, and Plaintiff has no
evidence of pretext;
2.
Issue Two: Plaintiff’s Cause of Action for Race
and/or Color Harassment Under FEHA must be adjudicated against Plaintiff
because Plaintiff cannot make a prima facie showing racial harassment based on
management activities and the alleged conduct was not sufficiently severe or
pervasive;
3.
Issue Three: Plaintiff’s Cause of Action for Failure
to Prevent Discrimination Under FEHA must be adjudicated against Plaintiff
because it relies entirely on the underlying claims;
4.
Issue Four: Plaintiff’s Cause of Action for Hostile
Work Environment Harassment Under FEHA must be adjudicated against Plaintiff
because Plaintiff cannot make a prima facie showing of age discrimination,
Defendant had legitimate business reasons, and Plaintiff has no evidence of
pretext.
Plaintiff opposes the motion.
Objections to
Declaration of Jo Ann Raval
Overruled: Objections 1-14.
Objections to
Declaration of Patricia Roark
Overruled: Objections 15-17.
Sustained: Objections 18-20.
Objections to
Declaration of Gomez
Overruled: Objections 21-26.
Objections to Declaration of Jessica Almeida
Overruled: Objections 27-28.
Defendant’s Evidentiary
Objections
Objections to Declaration of
Mason Rashtian
Sustained: Objections 1-6.
“The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties' pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(a) provides:
A party may move for summary judgment in any action or
proceeding if it is contended that the action has no merit or that there is no
defense to the action or proceeding. The
motion may be made at any time after 60 days have elapsed since the general
appearance in the action or proceeding of each party against whom the motion is
directed or at any earlier time after the general appearance that the court,
with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30
days before the date of trial, unless the court for good cause orders
otherwise. The filing of the motion
shall not extend the time within which a party must otherwise file a responsive
pleading.
A
motion for summary judgment may 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.” (CCP § 437c(c).)
“The
motion shall be supported by affidavits, declarations, admissions, answers to
interrogatories, depositions, and matters of which judicial notice shall or may
be taken. The supporting papers shall
include a separate statement setting forth plainly and concisely all material
facts that the moving party contends are undisputed. Each of the material facts stated shall be
followed by a reference to the supporting evidence. The failure to comply with this requirement
of a separate statement may in the court’s discretion constitute a sufficient
ground for denial of the motion.” (CCP §
437c(b)(1); see also Cal. Rules of
Court, rule 3.1350(c)(2) & (d).)
In
analyzing motions for summary judgment, courts must apply a three-step
analysis: “(1) identify the issues framed by the pleadings; (2) determine
whether the moving party has negated the opponent's claims; and (3) determine
whether the opposition has demonstrated the existence of a triable, material
factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) CCP § 437c(p)(2) provides:
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.
The
court must “view the evidence in the light most favorable to the opposing party
and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39
Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.”].) A motion for
summary judgment must be denied where the moving party’s evidence does not
prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d
462, 475) or where the opposition is weak (Salasguevara
v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).
“In analyzing an employee’s claim for unlawful
discrimination under the FEHA, California courts have adopted the three-stage,
burden-shifting test the United States Supreme Court established in McDonnell Douglas Corp. v. Green (1973)
411 U.S. 792 [Citations.]” (Swanson
v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964 (Swanson).) “This so-called McDonnell Douglas test reflects the principle that direct evidence
of intentional discrimination is rare, and that such claims must usually be
proved circumstantially. Thus, by
successive steps of increasingly narrow focus, the test allows discrimination
to be inferred from facts that create a reasonable likelihood of bias and are
not satisfactorily explained.” (Swanson, 232 Cal.App.4th at p. 964.)
California courts have recognized that the McDonnell Douglas test was originally
developed for use at trial, not in summary judgment proceedings. (Swanson,
232 Cal.App.4th at p. 965.) “California’s
summary judgment law places the initial burden on a moving party defendant to
either negate an element of the plaintiff’s claim or establish a complete
defense to the claim.” (Id. at pp. 965-966.) “The burdens and order of proof therefore
shift under the McDonnell Douglas
test when an employer defendant seeks summary judgment. [Citations.]
An employer defendant may meet its initial burden on summary judgment,
and require the employee plaintiff to present evidence establishing a triable
issue of material fact, by presenting evidence that either negates an element
of the employee's prima facie case, or establishes a legitimate
nondiscriminatory reason for taking the adverse employment action against the
employee.” (Id. at p. 966.) “[T]o avoid
summary judgment [on the second of these two grounds], an employee claiming
discrimination must offer substantial evidence that the employer's stated
nondiscriminatory reason for the adverse action was untrue or pretextual, or
evidence the employer acted with a discriminatory animus, or a combination of
the two, such that a reasonable trier of fact could conclude the employer
engaged in intentional discrimination.”
(Ibid.)
B. Issues 1-4: Failure to
Establish Adverse Employment Action for Discrimination and Harassment under the
FEHA
To establish a prima facie case for discrimination and/or
harassment 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 (Guz).)
To establish a prima facie case of¿harassment, an employee
must show (1) he was an employee; (2)¿he was subjected to unwanted harassing
conduct based on her protected status; (3) the harassing conduct was severe or
pervasive; (4) a reasonable person in the employee's circumstances would have
considered the work environment to be hostile or abusive; (5) he considered the
work environment to be hostile or abusive; (6) that a supervisor engaged in the
conduct and/or the employer knew or should have¿known of the conduct and failed
to take immediate and appropriate corrective action; (7) the employee was
harmed; and (8) the conduct was a substantial factor in causing the employee's
harm.¿(Thompson v. City of Monrovia¿(2010) 186 Cal.App.4th 860, 876.) ¿Further,
pursuant to Government Code § 12923(b), “A single incident of harassing conduct
is sufficient to create a triable issue regarding the existence of a hostile
work environment if the harassing conduct has unreasonably interfered with the
plaintiff’s work performance or created an intimidating, hostile, or offensive
working environment.”
Here, Permanente contends summary adjudication of all claims
in the Complaint is merited as Plaintiff was first investigated for racial
profiling and discriminatory comments towards a coworker, and exhibited ongoing
“disruptive behavior” with his supervisors and his colleagues throughout 2021.
(Motion, 2-4.) Further, Permanente contends while Plaintiff was issued a
corrective action “Level 2,” “due to the ongoing staff and patient complaints
lodged against” him, Plaintiff himself “confirmed [Permanente] never suspended,
demoted, or terminated Plaintiff when he received the Corrective Action.”
(Motion, 5.) Further, it is undisputed between the parties that the Corrective
Action “did not impact Plaintiff’s position.” (Response to Separate Statement
of Material Facts, (“RSS”) ¶46.)
Further, Defendant confirms Plaintiff’s request for medical
leave was approved and Plaintiff returned to his usual position after his
medical leave. (Motion, 5-6.) Defendant further asserts Plaintiff testified
that he did not hear negative comments about his race or derogatory comments
directed towards his race. (Motion, 6-9.)
As such, Defendant contends Plaintiff cannot establish, as a
matter of law, that he suffered any adverse employment action, and sufficiently
pervasive harassing conduct. (Motion, 10-14, 16-17.)
In opposition, Plaintiff contends there is direct evidence
of discriminatory motives, but fails to provide sufficient factual evidence to
make such a showing, beyond mere conclusory statements to that effect. (Opp,,
11-13.) Further, Plaintiff contends the discrimination can be inferred here
given the circumstances. (Opp., 13-15.) However, Plaintiff’s contentions cannot
contradict the undisputed material fact at the center of this motion for
summary judgment—that Plaintiff himself agreed the corrective action did not
affect his employment. (RSS ¶46.)
Further, Plaintiff then goes on to contend that the “fact
that Plaintiff was never terminated is not relevant because facts reveal that
he was being set up for termination, which did not transpire because of this
lawsuit. The Corrective Action 2 was issued as a means to control Plaintiff’s
behavior, and if Gomez, Roark and Almeida didn’t like his behavior, then the
Corrective Action 2 would end up in his employment records.” (Opp., 17.) The
court does not find such tenuous and convoluted line of reasoning to be
supported by the evidence provided. Such conclusory contentions do not go
toward making a prima facie showing of the necessary elements for either a
harassment or discrimination claim under FEHA.
Further, the court notes that Plaintiff contends he suffered
a “racist and discriminatory agenda” by Defendant, but fails to show how any
such conduct was severe or pervasive, or how such alleged conduct created an
intimidating or hostile work environment. (Opp., 18-19.)
The court looks to McRae v. Department of Corrections &
Rehabilitation (2006) 142
Cal.App.4th 377 (McRae) for further explanation.
In McRae, an African American surgeon alleged that she
was denied a promotion to Chief Medical Officer at a California State Prison in
favor of a Caucasian woman because of her race. (Id. at 316.) The
African American surgeon filed a complaint with the Department of Fair
Employment and Housing (“DFEH”) in connection with this incident, and alleges that she was subject to
retaliatory actions as a result of her DFEH complaint, culminating in her
involuntary transfer to another position. (Id.) In finding that the
African American surgeon’s transfer did not constitute an adverse employment
action, the Court of Appeal articulated the following standard: “A transfer can
be an adverse employment action when it results in substantial¿and tangible harm.
A transfer is not an adverse employment action when it is into a comparable
position that does not result in substantial and tangible harm.” (Id. at
324-325.) The Court of Appeal found that the African American surgeon’s
transfer was not an adverse employment action because there was no showing that
the transfer resulted in demotion, loss in pay or benefits, change in status or
job title, or significant change in job responsibilities. (Id. at 325.)
It
is undisputed that Plaintiff’s corrective action did not result in demotion,
loss in pay or benefits, change in status or job title, or significant change
to his job responsibilities. As such, this court finds Plaintiff has failed to
make a prima facie showing of an adverse employment action, necessary to
support a FEHA claim for discrimination.
Further, as described above, the court has determined none
of the allegedly adverse employment actions Plaintiff complained of constitute
adverse employment actions as none of the actions materially affected
Plaintiff’s employment. As such, Plaintiff cannot establish that any of these
allegedly adverse employment actions constitute “severe and pervasive” actions
such that they might be sufficient to prove harassment under the FEHA. Further,
Plaintiff has submitted no evidence in support of any of his contentions that
these allegedly adverse actions constitute harassing actions, or that
Defendant, and its agents and/or supervisors, created a hostile, intimidating
work environment, or one which interfered with Plaintiff’s work performance.
Moreover, this court
also notes, sua sponte, when a plaintiff fails to highlight a disputed,
or specific, loss of tangible job benefits, he or she must make a
commensurately higher showing that the harassing conduct was pervasive and
destructive of the working environment. (Lyle v. Warner Brothers Television
Productions (2006) 38 Cal.4th 211, 223.) As such, Plaintiff’s mere
statements that he experienced harassment or discrimination from Permanente,
without submitted evidence to that effect, are insufficient a claim against Permanente.
Viewing the submitted evidence in the light most favorable
to Plaintiff, the court finds that no triable issue of material fact exists as
to whether Plaintiff was subject to discrimination or harassment under the FEHA
on the basis of race because Plaintiff has submitted no evidence to demonstrate
that any changes in his employment constitute adverse employment actions. Lastly,
the court also notes it is undisputed that Plaintiff’s cause of action for
failure to prevent discrimination or harassment in violation of the FEHA is
derivative of Plaintiff’s causes of action for discrimination or harassment
under the FEHA on the basis of race. Accordingly, the court therefore finds no
triable issue of material fact exists as to that cause of action as well.
Having granted summary adjudication as to issues one through
four on this basis, the court does not reach the remainder of the parties’
arguments regarding whether the Permanente acted with discriminatory motive. Accordingly,
the motion for summary adjudication is granted with respect to the first
through fourth issues for discrimination and harassment under the FEHA.
III. Conclusion
For these reasons, Defendant’s motion for summary judgment
is granted in its entirety. Defendant is to provide notice and to submit a
proposed judgment.