Judge: Holly J. Fujie, Case: 20STCV10684, Date: 2022-08-26 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 20STCV10684    Hearing Date: August 26, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendants Kaiser Foundation Health Plan, Inc. (“KFHP”), Kaiser Foundation Hospitals (“KFH”), and Southern California Permanente Medical Group (“SCPMG”) (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving, opposition and reply papers.

BACKGROUND

This action rises out of an employer/employee relationship.  Plaintiff’s complaint (the “Complaint”) alleges: (1) quid pro quo sexual harassment; (2) hostile work harassment; (3) discrimination; (4) retaliation; (5) failure to prevent; and (6) violations of Labor Code sections 98.6 and 1102.5.

In relevant part, the Complaint alleges that Plaintiff, who is a 30-year-old African American woman, began working for Moving Defendants on or around September 14, 2015.  (Complaint ¶ 3.)  In or about April 2018, Plaintiff began working under LaSalle Williams (“Williams”).  (Complaint ¶ 6.)  Williams subjected Plaintiff to derogatory, offensive and sexually explicit comments and conduct.  (See Complaint ¶¶ 6-10.)  On or about April 26, 2018, Plaintiff made a complaint about Williams’s conduct to a supervisor, Kelli Duncan (“Duncan”), which was ignored by Duncan.  (Complaint ¶ 11.)  After making her initial complaint, Plaintiff was subjected to retaliation by being written up for timecard fraud and by Williams’s continuing harassment, which was accompanied with comments that suggested that he was aware that Plaintiff had complained about his behavior.  (See Complaint ¶¶ 12-15.)  Plaintiff made subsequent complaints and was subjected to further retaliatory actions, including receiving a Level IV writeup.  (See Complaint ¶ 31.)  In addition, because she continued to be scheduled to work shifts which overlapped with Williams’s work hours, Plaintiff sought a transfer to a position with lower pay.  (See Complaint ¶ 39.) 

Moving Defendants filed a motion for summary judgment and/or adjudication (the “Motion”) to all six causes of action alleged in the Complaint in addition to Plaintiff’s prayer for punitive damages.

EVIDENTIARY OBJECTIONS

Plaintiff’s Objections

            Plaintiff’s objections to the Declaration of Alix P. Gade (“Gade Decl.”) are OVERRULED in their entirety.

Plaintiff’s objections to the Declaration of Qiyamaa Portillo (“Portillo Decl.”) are OVERRULED in their entirety.

Plaintiff’s objections to the Declaration of Janice Wolf (“Wolf Decl.”) are OVERRULED in their entirety.

Plaintiff also filed objections to evidence cited in Moving Defendant’s Separate Statement.  Plaintiff’s objections are a hybrid of evidentiary objections and a response to Plaintiff’s separate statement.  The majority of these objections dispute Moving Defendants’ characterization of the evidence, rather than presenting objections to the admissibility of the evidence on a specified ground.  Moreover, several of the objections cite multiple evidentiary sources referenced in Moving Defendants’ Separate Statement, making it impossible for the Court to isolate the specific nature of the corresponding objections.  The Court has reviewed Plaintiff’s objections to the extent that they cite authority and reference a specific piece of evidence.  Plaintiff’s evidentiary objections to Moving Defendants’ Separate Statement are OVERRULED in their entirety.

In addition to the separately filed evidentiary objections to the Separate Statement, Plaintiff appears to assert objections to the vast majority of the facts and evidence provided in Moving Defendants’ Separate Statement within the body of the Opposition Separate Statement itself.   California Rules of Court (“CRC”), rule 3.1354(b) provides that all written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections on specific evidence may be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.  (CRC, r.  3.1354(b).) 

            The rules requiring evidentiary objections to be filed separately and not repeated in the separate statement are to allow the trial court to consider each piece of evidence and all of the objections applicable to that piece of evidence separately.  (Hodjat v. State Farm Mutual Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 9.)  Interposing objections into the separate statement defeats the goal of allowing the trial court to quickly and efficiently determine what particular piece of evidence is admitted and what is not.  (Id.)  This is because the separate statement is focused on individual facts, which may be supported by the same or different pieces of evidence.  (Id.)  A trial court would be forced to wade through all of the facts in order to rule on a particular piece of evidence.  (Id.)  A court must rule on individual objections only when they are timely and in the proper form.  (Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 578.)  As Plaintiff has failed to comply with CRC, rule 3.1354 with respect to the objections asserted solely within the Opposition Separate Statement, the Court declines to rule on these objections.

Moving Defendants’ Objections

Moving Defendants’ objections to Plaintiff’s evidence numbers 3 and 23 are SUSTAINED. Objections numbers 2 and 4-22 are OVERRULED.  With respect to objection number one, the Court agrees that the compendium of evidence submitted with the Opposition (the “Opposition COE”) is unsigned.  An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party. ¿(CCP § 128.7, subd. (a).)  Plaintiff’s counsel must correct this omission at or before the hearing to avoid having the Opposition COE stricken. 

DISCUSSION

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.)  California Code of Civil Procedure (“CCP”) section 437c, subdivision (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.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense.  (CCP § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  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.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Summary Judgment Standard in Employment Discrimination Claims

In analyzing an employee’s claim for unlawful discrimination under FEHA, California courts have adopted the three-stage, burden-shifting test the U.S. Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.  (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964.)  The McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.  (Id.)   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.  (Id.) 

California courts have recognized that the McDonnell Douglas framework was originally developed for use at trial, not in summary judgment proceedings.  (Id. at 965.)  California 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 965-66.)  The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment.  (Id. at 966.)  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 966.)  To 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.  (Id.)

Moving Defendants’ Evidence

Plaintiff began working as a full-time lab assistant at the South Bay Medical Center (“SBMC”) Laboratory in March 2018.  (Undisputed Material Fact (“UMF”) 3.)  On August 1, 2018, Williams, who works as a lead lab assistant, reported an issue regarding Plaintiff’s timekeeping practices to Wolf, who is the Director of Area Laboratory Operations in the Laboratory and Pathology Department at SBMC.  (See UMF 10, 20.)  Williams’s complaint to Wolf caused Wolf to begin an investigation into whether Plaintiff was clocking into work at a building other than the building where she worked, in violation of SCPMG timekeeping policies.  (See UMF 20-21, 24.)  Wolf assigned Portillo, who was then the Assistant Director of Laboratory Operations at SBMC, to investigate the complaint.  (UMF 24.)  An investigatory meeting regarding Plaintiff’s timekeeping practices was held with Portillo, Plaintiff, and Plaintiff’s union steward Marlon Henry on August 15, 2018.  (UMF 25.)  During the meeting, Plaintiff admitted that she occasionally clocked in at a building other than the building from which she worked.  (UMF 26.)  Although Plaintiff’s timekeeping violation was a terminable offense under SCPMG policy that could have warranted the issuance of a Level V Corrective Action, Wolf and Portillo agreed to issue Plaintiff a Level IV Corrective Action (the “August Corrective Action”), which is a disciplinary action which results in a “last chance agreement” that stays on an employee’s record for one year.  (UMF 27-28, 31; see Wolf Decl. ¶¶ 11, 14.)  The Level IV Corrective Action was issued on August 31, 2018.  (UMF 28.) 

On September 19, 2018, Plaintiff called the compliance hotline to complain about Williams.  (UMF 38.)  Plaintiff had never used the compliance hotline before her September 19, 2018 complaint about Williams.  (UMF 39.)  Wolf, Mizra Meek from the Compliance Department, and Brian Miali from the Equal Employment Opportunity Investigatory Unit were among those who investigated Plaintiff’s complaint about Williams.  (See UMF 46.)  Williams was out of the office on vacation between September 17, 2018 and September 28, 2018, and was placed on investigatory suspension between October 16, 2018 and December 26, 2018.  (UMF 40-41.) 

In October 2018, Williams told Wolf that he believed that Plaintiff complained about him to retaliate because he had previously reported her timekeeping violations.  (UMF 47.)  Williams also informed Wolf that Plaintiff had engaged in inappropriate workplace conduct.  (See UMF 48.)  On December 26, 2018, following the investigation into the claims raised by both Plaintiff and Williams, Wolf issued a Level IV Corrective Action to Plaintiff (the “December Corrective Action”) and to Williams.  (See UMF 49, 54; Wolf Decl. ¶¶ 20-21, Exhibits I and J.)  Wolf issued the December 26 Corrective Action to Plaintiff based on her belief that Plaintiff frequently discussed sex with her coworkers and that Plaintiff’s complaint about Williams was retaliatory due to its proximity to the issuance of the August Corrective Action.  (See UMF 50.)^[1]

SCPMB employees have access to an internal job portal through which they can apply to open positions within SCPMG.  (UMF 55.)  The employee with the most union seniority is entitled to an open union position that is applied to on the job portal as long as they meet the minimum job qualifications for the position.  (UMF 56.)  If the applicant is qualified for the position and is the most senior candidate, the hiring manager for that position can contact the employee’s current manager to ask about the employee’s disciplinary history, including prior corrective actions, before extending an offer of employment.  (See Wolf Decl. ¶ 24.)  On December 28, 2018, Plaintiff applied for a part-time position in the ER for the South May Medical Center Laboratory, and when she received an offer for the position, Plaintiff accepted.  (UMF 58.)  Plaintiff applied for and accepted two other positions in August 2020 and April 2021.  (UMF 60-61.)  Between March 25, 2018 and the present, each rejection Plaintiff received in response to an application she submitted over the job portal was due to Plaintiff’s lack of qualifications, ineligibility due to her union contract, or the position being offered to a union member with more seniority.  (See UMEF 63, Gade Decl., Exhibit L.) 

First Through Fifth Causes of Action

The first through fifth causes of action arise under the Fair Employment and Housing Act (“FEHA”).  Under FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing (“DFEH”) and must obtain from DFEH a notice of right to sue in order to be entitled to file a civil action in court based on violations of FEHA.  (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 49.)  Exhaustion of administrative remedies is a jurisdictional prerequisite to resort to the courts.  (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.)

Moving Defendants provide evidence that Plaintiff has not produced evidence that she had filed a DFEH complaint before she commenced this action.  (UMF 74; Declaration of Zena Jacobsen (“Jacobsen Decl.”) ¶ 8.)

Plaintiff cites to her Complaint in order to create a factual issue regarding a DFEH complaint.  (See Opp. UMF 74.)  This is insufficient to raise a factual issue.  To defeat summary judgment a plaintiff must show “specific facts” and cannot rely on allegations of the complaint.  (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054.)^[2]  Accordingly, Plaintiff has not controverted Moving Defendants’ evidence that there is no evidence that she filed a complaint with the DFEH or received right to sue letters.  There is therefore no triable issue of fact that there is no evidence that Plaintiff failed to exhaust her administrative remedies before filing this action.  As the exhaustion of administrative remedies is a jurisdictional prerequisite for Plaintiff’s FEHA claims, the Court GRANTS the Motion as to the first through fifth causes of action. 

Sixth Cause of Action

To establish a prima facie case for retaliation under Labor Code sections 1102.5 and 98.6, a plaintiff must show: (1) they engaged in a protected activity, (2) their employer subjected them to an adverse employment action, and (3) a causal link between the two.  (St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 314.)

In Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703 (“Lawson”), the California Supreme Court held that Labor Code section 1102.6 provides the governing framework for the presentation and evaluation of whistleblower claims brought under Labor Code section 1102.5.  (Lawson, supra, 12 Cal.5th at 718.)  First, it places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action.  (Id.)  The plaintiff need not satisfy McDonnell Douglas in order to discharge this burden.  (Id.)  Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.  (Id.) 

Labor Code section 1102.6 explicitly imposes a higher burden of production-- clear and convincing evidence-- than the preponderance of the evidence standard that would otherwise be required under the burden-shifting McDonnell Douglas framework.  (Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 379 (interpreting Lawson).)  Under section 1102.6, the employer must show the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by section 1102.5, rather than by simply showing it had one legitimate reason for its action, even if several illegitimate reasons principally motivated its decision.  (Id.)  Under section 1102.6, a plaintiff does not need to show that the employer’s nonretaliatory reason was pretextual.  (Id.)  Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action.  (Id.)

1.     Adverse Employment Action

The term adverse employment action encompasses not only ‘“ultimate” employment actions, such as hiring, firing, demotion or failure to promote,¿but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for career advancement.  (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 879.)  On the other hand, minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable.  (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.)  In determining whether a plaintiff suffered an adverse employment action, courts employ the same standard of materiality that the California Supreme Court held should be applied to employment retaliation claims made under FEHA.  (Whitehall v. County of San Bernadino (2017) 17 Cal.App.5th 352, 366.) 

Although 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 v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.)  Thus, in determining whether there was an adverse employment action to show discrimination or retaliation, courts look at the totality of circumstances and not just at each isolated act.  (Id. at 1055.)  Adverse employment actions can include demotions, reassignments, refusals to promote, unwarranted evaluations, tolerating harassment by coworkers, reprimands and suspensions.  (Id. at 1061.)  An employer may be held liable for coworkers' retaliatory conduct if the employer knew or should have known of the coworkers' retaliatory conduct and either participated and encouraged the conduct or failed to take reasonable actions to end the retaliatory conduct.  (Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 213.)  The plaintiff, however, must show the employer's retaliatory actions had a detrimental and substantial effect on the plaintiff's employment.  (See McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386.)  A plaintiff’s suspicions of improper motives based primarily on conjecture and speculation are not sufficient to raise a triable issue of fact to withstand summary judgment. (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.) 

The Complaint identifies Moving Defendants’ allegedly retaliatory adverse employment actions as: falsely accusing Plaintiff of time card fraud, reducing Plaintiff’s hours, forcing Plaintiff to transfer to a different departments/locations, refusing to separate Plaintiff’s harasser from Plaintiff, continuously setting Plaintiff’s schedule so as to have to work with the harasser, failing to comply with its policies and procedures regarding the handling of plaintiff’s complaints, leaking confidential information regarding Plaintiff’s complaints, issuing write ups to Plaintiff, forcing Plaintiff to take a demotion, unreasonably denying Plaintiff positions that she applied for and/or promotions to other positions, among other things.  (Complaint ¶ 108.)

Moving Defendants argue that: (1) none of the alleged adverse employment actions materially affected the terms and conditions of Plaintiff’s employment; and (2) to the extent that the Level IV Corrective Actions constitute an adverse employment action, Moving Defendants had a legitimate non-retaliatory reason to justify their issuance.

            The Court finds that Moving Defendants have demonstrated that the allegedly adverse employment actions did not substantially or materially affect the terms of Plaintiff’s employment.  First, Moving Defendants have provided unrefuted evidence that Plaintiff was not forced to apply for other positions; moreover, Moving Defendants have provided unrefuted evidence that any rejections Plaintiff received while applying for jobs within the online job portal were due to non-retaliatory reasons and were unrelated to the Level IV Corrective Actions on Plaintiff’s employment record.  Furthermore, while Williams’s conduct upset Plaintiff and disrupted her working environment, Plaintiff has not provided substantial evidence that Moving Defendants participated in Williams’s retaliatory conduct or failed to take reasonable actions to end the retaliatory conduct. 

In her deposition, Plaintiff testified that the only complaints she made about Williams prior to making the compliance report were to Duncan in April 2018.  (See Opp. COE, Exhibit B at 210:2-4.)  Plaintiff has not presented non-speculative evidence that her initial complaints to Duncan in April 2018 included concerns that Williams was retaliating against her because she had been raising concerns about his conduct to management.  (See id. at 210:11-14.)  To the extent that Plaintiff alleges that Williams’s conduct was retaliatory starting when he complained about Plaintiff’s timecard violations, Plaintiff has not produced evidence to create a factual issue regarding whether Moving Defendants participated or encouraged Williams’s behavior or failed to take corrective steps to stop the behavior.  Moving Defendants’ unrebutted evidence indicates that Williams was out on vacation from September 17, 2018 and September 28, 2018, and was placed on investigatory suspension between October 16, 2018 and December 26, 2018 after Plaintiff complained that Williams had escalated the conflict.  During the interim period, Plaintiff and Williams were scheduled to work on separate floors and had limited interaction.  Shortly after Plaintiff and Williams received their disciplinary actions, Plaintiff voluntarily applied for and accepted another position.  Accordingly, Plaintiff has failed to establish a triable issue of fact as to whether she was subjected to an adverse employment action.

The Court therefore GRANTS the Motion to the sixth cause of action.  Because the Court has granted the Motion on each cause of the causes of action alleged in the Complaint, the Court need not address Moving Defendants’ arguments regarding the identity of Plaintiff’s employer(s) or punitive damages. 

            Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person.  The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.  This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

             Dated this 26th day of August 2022