Judge: Joseph Lipner, Case: 20STCV42013, Date: 2024-07-09 Tentative Ruling
Case Number: 20STCV42013 Hearing Date: July 9, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
MICHAEL SMITH, Plaintiff, v. CENTER FOR DIAGNOSTIC IMAGING,
INC., et al., Defendants. |
Case No:
20STCV42013 Hearing Date: July 9, 2024 Calendar Number: 11 |
Defendants Center for Diagnostic Imaging, Inc. (“CDI”) and
Insight Health Corp. (“Insight”) (collectively, the “Insight Parties”) move for
summary judgment on the First Amended Complaint (“FAC”) filed by Plaintiff
Michael Smith. The Insight Parties alternatively seek summary adjudication of
each of Plaintiff’s eleven claims against them as well as Plaintiff’s demand
for punitive damages.
Defendant County of Los Angeles (the “County”) (collectively
with the Insight Parties, “Defendants”) separately moves for summary judgment
on the FAC. The County alternatively seeks summary adjudication of each of
Plaintiff’s first five claims, which are the only claims Plaintiff raises
against the County.
The Court GRANTS the County’s motion for summary
adjudication as to the second, third, fourth, fifth, and sixth claim. The Court invites argument as to whether to
grant summary adjudication as to the first claim (and therefore summary
judgment as to the County).
The Court DENIES the Insight Parties’ motion for summary
judgment.
The Court DENIES the Insight Parties’ motion for summary
adjudication as to the first, ninth, tenth, and eleventh claims.
The Court GRANTS the Insight Parties’ motion for summary
adjudication as to the second, third, fifth, sixth, seventh and eighth claims.
The Court invites arguments as to the Insight Parties’
motion for summary adjudication as to
the fourth claim.
This is an employment case. The following facts are taken
from the Insight Parties’ separate statement of material facts (“IMF”),
Plaintiff’s separate statement of material facts in response to the Insight
Parties’ (“PIMF”), the County’s separate statement of material facts (“CMF”),
and Plaintiff’s separate statement of material facts in response to the
County’s (“PCMF”).
Insight is a provider of mobile diagnostic imaging equipment
and services to healthcare institutions. Insight and CDI have been sister
companies since their 2012 merger. (Kay Decl. ¶ 2.)
Plaintiff is a black man. (CMF 1.) Plaintiff worked for
Insight from May 20, 2016 to December 11, 2019. (Smith Decl. ¶ 1; PIMF 16, 20.)
Plaintiff reported to Mike Ford form 2016 through 2018. (IMF 19.) He later
reported to Bernadette Kay until the end of his employment. (IMF 20.)
Plaintiff became a full-time MRI Technologist on August 29,
2016. (IMF 13.) MRI Technologists operate MRI scanners to produce images of the
patient’s body for diagnostics. (IMF 15.) This role involves providing
technological support, interacting with doctors, nurses, and patients, and
following physicians’ instructions. (IMF 15-16.)
While Plaintiff was an employee of Insight, he was assigned
to work at the Harbor-UCLA Imaging Center (the “Imaging Center”), which is part
of the Harbor-UCLA Medical Center (the “Medical Center”), located on UCLA’s
main campus in West Los Angeles. (CMF 4.) The Insight Parties were hired to
perform radiological work for the Medical Center. (CMF 4.)
Although the parties’ summary judgment papers do not point
out the precise relationship between the County and the Medical Center, all
parties agree that they are one and the same entity. Plaintiff asserts that the entity is the
County of Los Angeles UCLA-Harbor Medical Center. (FAC ¶ 4.)
The County contends that it should have been named as the County in the
FAC, instead of naming the Medical Center as a defendant. (County’s Answer to FAC, p. 1:19-21.)
Plaintiff’s role involved coordinating with doctors at the
Medical Center so that the doctors could instruct Plaintiff on which part of a
patient’s body to scan. (CMF 6.) The doctors did not instruct Plaintiff on how
to run the MRI scanner itself. (CMF 7.) The Medical Center did not set
Plaintiff’s regular schedule, but when Plaintiff was on call, it was Medical
Center employees who would call him in to work. (PIMF 16, 18, 20.) The County
never gave Plaintiff a performance review during his employment with Insight;
all of Plaintiff’s performance reviews for the years 2016, 2017, and 2018 were
by Insight. (CMF 13-14.) From 2016 through 2019, Plaintiff never received any
form of discipline from the County, including write-ups, warnings, reductions
in pay, or suspensions. (CMF 15.) Plaintiff never received any employment
benefits from the County during the time when he performed MRI services at the
Medical Center. (CMF 19.) During his employment with Insight, Plaintiff was
paid by Insight, not the County. (CMF 22.) Plaintiff always believed that the
Insight Parties were his employer. (CMF 23; Goldsmith Decl., Ex. 12, Smith
Depo. at p. 16:9-12.) Plaintiff received W-2 forms from CDI, but not the
Medical Center, and identified CDI, but not the Medical Center, as his employer
on his tax returns. (Goldsmith Decl., Ex. 12, Smith Depo. at p. 56:7-15.) When
Plaintiff tendered his resignation in December 2019, he sent a resignation
letter to Kay at Insight, identifying CDI and Insight as his employer, but did
not send a resignation letter to anyone at the Medical Center. (Goldsmith
Decl., Ex. 12, Smith Depo. at pp. 12:6-21.)
The record is conflicted as to whether Plaintiff experienced
discrimination from his coworkers at Insight. Plaintiff testified at his
deposition that, although he did not believe his colleagues at CDI or Insight
were being purposefully discriminatory, he believes that some of them may have
engaged in unknowing discrimination by jokingly making statements that other
people were treating Plaintiff differently because he was black. (Choi Decl.,
Ex. 12, Smith Depo. at p. 375:10-23.) Plaintiff testified that he had good
relationships and very few conflicts, none of which were related to race, with
his coworkers at CDI and Insight. (Choi Decl., Ex. 12, Smith Depo. at pp.
329:16-338:14.)
Plaintiff’s relationship with employees at the Medical
Center was more contentious. Plaintiff declares that a radiologist at the
Medical Center would yell at Plaintiff when communicating about patient
scanning, hang up on him in the middle of calls, and make allegedly false
accusations that Plaintiff acted inappropriately. (Smith Decl. ¶ 10.) Plaintiff
states that the radiologist accused him of purposely ignoring calls from the
radiologist regarding patients. (Smith Decl. ¶ 10.) Kay repeatedly reprimanded
Plaintiff based on these reports. (Smith Decl. ¶ 10.) Plaintiff’s 2018 year-end
review indicated that Medical Center staff had made various complaints to the
Insight Parties about Plaintiff. (Smith Decl. ¶ 12, Ex. B.) Plaintiff also
avers that doctors repeatedly yelled at him. (Smith Decl. ¶ 14.)
Plaintiff declares that in late 2018, he was blamed for
playing loud music – that was in fact played by a different MRI Technician –
because of the racial stereotype associated with the urban genre of music being
played. (Smith Decl. ¶ 18.) Plaintiff told Kay that he felt he was being
treated differently because he was black. (Smith Decl. ¶ 18.)
In 2019, a Medical Center staff person called the police in
response to a parking violation by Plaintiff and a sheriff’s officer came to
the location. (Smith Decl. ¶ 19.) The officer expressed that he did not
understand why he had been called. (Smith Decl. ¶ 19.) Several of Plaintiff’s
Insight coworkers joked that the staff worker had called the police because
Plaintiff was black. (Choi Decl., Ex. 12, Smith Depo. at pp. 381:9-382:4.) This
incident embarrassed Plaintiff and heightened the way Plaintiff felt, leading
him to stop joking about race with his coworkers because he felt that he was
being treated differently based on his race. (Choi Decl., Ex. 12, Smith Depo.
at p. 381:1-15.)
Full-time MRI Technologists are expected to work periodic
on-call shifts. (IMF 26.) After Plaintiff became a full-time employee, Ford
told Plaintiff that he would have to take call because it was a job
requirement, although Plaintiff voiced his opinion that he should not be
required to take call because of the distance between his home and the Medical
Center. (IMF 27.)
On November 3, 2018, an incident occurred where Kay received
an early morning call from Dr. Bradley Chappell, a Medical Director at the
Medical Center. (IMF 31.) Dr. Chappell told Kay that Plaintiff, who was on
call, was not picking up the call phone and that they had been trying to reach
him since 3:00 a.m. (IMF 31.) Kay documented the incident and issued a warning
in Plaintiff’s 2018 review. (IMF 33.)
Another incident relating to calls occurred on March 27,
2019. (Kay Decl., ¶ 6(b), Ex. 10.) Kay received a call from Plaintiff, who was
agitated and informed her that Brittany Clark, the Technologist on duty earlier
had told hospital staff to call Plaintiff in because Clark had an urgent scan
ordered that she would not be able to complete before the end of her shift and
she could not work overtime on that particular day. Kay Decl., ¶ 6(b), Ex. 10.)
Kay discovered from her conversation with Plaintiff that Plaintiff had never
called Clark directly to discuss the situation. (Kay Decl., ¶ 6(b), Ex. 10.)
The situation was eventually resolved when another Technologist on duty offered
to scan the patient. (Kay Decl., ¶ 6(b), Ex. 10.)
On May 1, 2019, Kay received a complaint from another
Medical Center doctor, who described Plaintiff’s tone as “hostile and rude”
when he was called in to perform an urgent MRI. (IMF 34.) Another doctor told
Kay that Plaintiff had told the patient that he drove from Corona and that the
patient did not have to do the scan if she did not want to. (IMF 34.) Plaintiff
initially refused to scan the patient because she was afraid. (IMF 34.) The
patient later tried to decline treatment, which a doctor told Kay could be a
major safety issue. (IMF 34.) Plaintiff believed that, at times, Medical Center
staff did not treat MRI patients with the appropriate care and respect. (Smith
Decl. ¶¶ 7-8.) Plaintiff believed that a healthy patient had been forced to
undergo a scan and died in the scanner, and that the doctors at the Medical
Center were forcing patients to kill a patient by having them scanned.
(Fulgencio Decl., Ex. A, Smith Depo. at pp. 88:21-89:4, 90:9-14.) Plaintiff
contends that he reported these concerns to the Medical Center and to his
Insight supervisors. (Smith Decl. ¶ 8.) Following the May 1, 2019 incident, Kay
met with Plaintiff and issued him a written warning on May 3, 2019. (IMF 36.)
On November 16, 2019, when Plaintiff was called in twice in
one day, Plaintiff “lashed out” at a nurse because the patient was not ready
when Plaintiff arrived. (IMF 38.) The nurse hung up on Plaintiff due to an
urgent patient need, and Smith later loudly reproached the nurse for hanging up
on him. (IMF 38.) Both Smith and the nurse complained to Kay about this
incident. (IMF 37-38.) Human Resources representative Claire Buzicky and Kay
spoke with Smith on November 22, 2019 about this incident. (IMF 39.) At this
meeting, Plaintiff complained that he felt bullied by the Medical Center staff.
(IMF 40.) Kay and Senior Human Resources Director Tara Daniski scheduled
another meeting with Smith the following Monday, November 25, 2019, where Smith
stated that he felt he had a target on his back. (IMF 41.) Smith acknowledged
the gravity of the situation and apologized for “putting the company in [that]
situation” because he “used poor judgment and let [his] emotions get the better
of [him].” (IMF 41.)
Shortly after the November 25, 2019 meeting, Plaintiff
requested and received a leave of absence. (IMF 42.) Plaintiff resigned on
December 11, 2019. (IMF 43.)
Plaintiff testified that some of the employees at the
Medical Center, including doctors and nurses, treated Plaintiff differently
because he was black.
Plaintiff alleges that Kay, his supervisor, held deeply
ingrained prejudices against black men. (FAC ¶ 14.) The factual record is
somewhat conflicted on this issue. Plaintiff testified that he did not believe
that Kay intentionally discriminated against him, but that she did acknowledge
to him that black men, including Plaintiff, are often treated differently
because of their race. (Choi Decl., Ex. 12, Smith Depo. at pp. 376:25-377:16.)
Plaintiff testified that he believed that Kay made these statements because she
believed the Medical Center staff had a discriminatory perception of him, but
not because she had a discriminatory motive toward him. (Choi Decl., Ex. 12,
Smith Depo. at pp. 377:21-378:8.) On the other hand, in 2019, Kay told
Plaintiff that he looked scary when he came to work wearing a hoodie
sweatshirt. (Smith Decl. ¶ 18.) On another occasion, when Plaintiff was having
a discussion with Kay and another coworker, who is Hispanic, Kay stated to the
two employees, “I cannot let the monkeys run the show,” which Plaintiff
understood to be a racially derogatory reference. (Smith Decl. ¶ 20.)
In any event, Plaintiff never reported Kay’s allegedly
discriminatory, harassing, or retaliatory conduct to the County. (CMF 11.)
Plaintiff filed this action on November 2, 2020. The
operative complaint is now the FAC, which raises claims for (1) race
harassment; (2) medical condition and/or racial discrimination; (3) retaliation
in violation of FEHA; (4) failure to prevent/remedy discrimination, harassment,
and retaliation; (5) wrongful discharge in violation of public policy; (6)
failure to provide accurate wage statements; (7) meal period violations; (8)
rest break violations; (9) failure to pay overtime; (10) waiting time penalties;
and (11) unfair business practices.
The County moved for summary judgment on February 14, 2024.
Plaintiff filed an opposition and the County filed a reply.
The Insight Parties moved for summary judgment on February
20, 2024. Plaintiff filed an opposition and the Insight Parties filed a reply.
The Court overrules Plaintiff’s objections for two reasons.
First, the objections are not numbered as required by California Rules of
Court, rule 3.1354, subd. (b). Second, the majority of Plaintiff’s objections
do not object to the underlying evidence, but rather to portions of the Insight
Parties’ separate statement.
The Court sustains the following
objections: 11 (hearsay as to sentence “[i]t was known in imaging, however,
that another MRI technician, Daisy, who was not African American, would play
music loudly in imaging.”).
The Court overrules the County’s
remaining objections.
The purpose of a motion for
summary judgment or summary adjudication “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., supra, 25 Cal.4th at p. 843.) “Code of
Civil Procedure 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.)
“In ruling on the motion,
the court must consider all of the evidence and all of the inferences
reasonably drawn therefrom [citation] and must view such evidence [citations]
and such inferences [citations] in the light most favorable to the opposing
party.” (Aguilar, supra, at pp. 844-845 [quotation marks
omitted].)
“On a motion for summary
judgment, the initial burden is always on the moving party to make a prima
facie
showing that there are no triable issues of material fact.” (Scalf v. D. B.
Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)
“A plaintiff or
cross-complainant has met his or her burden of showing that there is no defense
to a cause of action if that party has proved each element of the cause of
action entitling the party to judgment on the cause of action. Once the
plaintiff or cross-complainant has met that burden, the burden shifts to the
defendant or cross-defendant to show that a triable issue of one or more
material facts exists as to the cause of action or a defense thereto. The
defendant or cross-defendant 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.” (Code
Civ. Proc. § 437c, subd. (p)(1).)
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.) “If the plaintiff cannot do
so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente
Medical Center (2008) 159 Cal.App.4th 463, 467.)
To establish a prima facie case of a hostile work
environment, [the plaintiff] must show that (1) [plaintiff] is a member of a
protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the
harassment was based on [plaintiff’s] protected status; (4) the harassment
unreasonably interfered with [plaintiff’s] work performance by creating an
intimidating, hostile, or offensive work environment; and (5) defendants are
liable for the harassment.” (Ortiz v. Dameron Hospital
Assn. (2019) 37 Cal.App.5th 568, 581.)
“[T]he adjudicator’s inquiry should center, dominantly, on
whether the discriminatory conduct has unreasonably interfered with the
plaintiff’s work performance. To show such interference, ‘the plaintiff need
not prove that his or her tangible productivity has declined as a result of the
harassment.’ It suffices to prove that a reasonable person subjected to the
discriminatory conduct would find, as the plaintiff did, that the harassment so
altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris
v. Forklift Sys. (1993) 510 U.S. 17, 25, conc. opn. of Ginsburg, J.; see
Gov. Code, § 12923, subd. (a) [endorsing this language as reflective of
California law].) A single incident of harassment may be enough to constitute a
hostile work environment if it “unreasonably interfered with the plaintiff’s
work performance or created an intimidating, hostile, or offensive working
environment.”¿ (Gov. Code, § 12923, subd. (b).)¿ The court shall use the
totality of the circumstances to determine whether there exists a hostile work
environment.¿ (Gov. Code, § 12923, subd. (c).)¿
Here, there is evidence that Kay behaved in a harassing
manner towards Plaintiff. Although Plaintiff has testified that Kay was
primarily supportive, he has also put forth evidence that Kay made a racially
derogatory comment regarding monkeys to Plaintiff and a Hispanic coworker. The
Court is obligated to resolve disputes of fact in the nonmoving party’s favor. The
fact that Kay was empathetic toward Plaintiff regarding racism on most
occasions does not negate the possibility that she harassed him on another. Here,
Plaintiff has created a triable issue that Kay harassed him. As discussed
above, even a single incident of harassment, if severe enough, can render a
work environment hostile. Additionally, Plaintiff contends that the Medical
Center radiologist who yelled at him did so because of Plaintiff’s race.
Although Defendants argue that Plaintiff’s work performance
did not suffer, that is not the crux of the analysis. Rather, what matters is
whether a reasonable person would find that it was more difficult to do the job,
which Kay’s comment could easily have done.
The Court therefore denies summary adjudication to the
Insight Parties on this claim.
Plaintiff has admitted in his deposition testimony that he
has no knowledge of whether the County knew that Plaintiff had been
discriminated against, retaliated against, or harassed, by Insight or County
employees. (CMF 10-12.) Plaintiff’s dispute of this fact in his own separate
statement simply restates Plaintiff’s factual contentions that the harassment
occurred and that he complained to Kay – who worked for the Insight Defendants.
(PCMF 12.)
However, there is a lack of clarity in the parties’ papers
as to who the alleged harassers at the County were, and whether they were
supervisory personnel at County. If they
were supervisory personnel, would notice to the County have been
satisfied? Moreover, should the County
have known that non-supervisory personnel were harassing Plaintiff? Based on all these questions, it is not clear
to the Court that the County has met its initial burden on summary judgment.
Moreover, it appears to the Court that a harassment claim is
viable against the County even if (as the Court concludes below) the County is
not Plaintiff’s employer. FEHA
harassment covers “a person providing services pursuant to a contract.” (Gov. Code, § 12940.) If the County disagrees, it should explain
why.
A plaintiff alleging discrimination must allege “that (1) [the
plaintiff] was a member of a protected class, (2) [the plaintiff] was qualified
for the position he sought or was performing competently in the position [they]
held, (3) [the plaintiff] 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 National Inc. (2000)
24 Cal.4th 317, 355.)
The Insight parties contend that Plaintiff’s discrimination
fails because he was not performing competently in his position. Plaintiff’s
job duties included maintaining a positive attitude and working relationships
with staff at the Medical Center. (IMF 16.) However, even prior to the alleged
discriminatory conduct, Plaintiff’s conduct relating to call-ins had already
resulted in multiple complaints.
Further, although Plaintiff has testified that his coworkers
at Insight and CDI may have been unintentionally racist, he did not believe
that any of them were purposefully discriminatory towards him. (Choi Decl., Ex.
12, Smith Depo. at p. 375:10-23.) Plaintiff testified to the same effect
regarding Kay. (Choi Decl., Ex. 12, Smith Depo. at pp. 376:25-377:16.)
While Plaintiff’s position that Kay discriminated against
him, albeit unintentionally, would be stronger if Kay had actually terminated
him, here, Plaintiff’s claim relies on constructive termination.
“To establish a constructive discharge, an employee must
prove that the employer either intentionally created or knowingly permitted
working conditions that were so intolerable or aggravated at the time of the
employee's resignation that a reasonable employer would realize that a
reasonable person in the employee's position would be compelled to resign.” (Simers
v. Los Angeles Times Communications LLC (2018) 18 Cal.App.5th 1248, 1269
[citation and quotation marks omitted].) “[E]mployer disciplinary actions—criticism,
investigation, demotion, performance plan—that, even if undertaken for reasons …
later found to include discrimination, are well within an employer's
prerogative for running its business. Unless those standard tools are employed
in an unusually aggravated manner or involve a pattern of continuous
mistreatment, their use cannot constitute constructive discharge.” (Id.
at p. 1271.)
Here, the allegedly discriminatory discipline against
Plaintiff never escalated above warnings and negative performance reviews, and
can thus hardly be said to be taken in an unusually aggravated manner or to
involve a pattern of continuous mistreatment. The same is true for Kay’s
allegedly derogatory statements and the Medical Center staff’s allegedly
racially motivated behavior. While those actions may rise to the level of
harassment, they do not reach the requisite level of constructive discharge.
Further, the verbal and written discipline alone was
insufficient to constitute an adverse employment action. “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.) Mere warnings and negative performance review do not rise to
this level.
The Court therefore grants summary adjudication to the
Insight Parties on this claim.
The County contends that it was not Plaintiff’s employer.
The undisputed facts show that the County was not Plaintiff’s direct employer,
and Plaintiff did not believe it to be as such.
Plaintiff argues that the County was Plaintiff’s joint
employer with the Insight Parties.
“Joint employment occurs when two or more persons engage the
services of an employee in an enterprise in which the employee is subject to
the control of both. ‘Employ’ means to engage, suffer, or permit to work. An
‘[e]mployee’ means any person employed by an employer and an ‘[e]mployer’ means
any person ... who ... employs or exercises control over the wages, hours, or
working conditions of any person.” (Morales v. 22nd Dist. Agricultural Assn.
(2016) 1 Cal.App.5th 504, 543 [citation and quotation marks omitted].)
“Courts examining whether joint employment exists … consider
a number of factors, including whether the alleged additional employer had the
power to hire and fire employees; supervised and controlled employee work
schedules or employment conditions; determined the rate and method of payment;
maintained employment records; owned the facilities where the employee worked;
and made significant investments in equipment and facilities.” (Morales v.
22nd Dist. Agricultural Assn. (2016) 1 Cal.App.5th 504, 543.)
Here, the Medical Center did not set Plaintiff’s overall
schedule, but was the entity that communicated with Plaintiff about when he was
on call. As a practical matter, it was Medical Center employees who called
Plaintiff in when he needed to come in for a call. However, that is where the
appearance of employment ends. The Medical Center did not have the power to
hire, fire, or discipline Plaintiff, nor did it attempt to do so. The Medical
Center did not pay Plaintiff’s wages or give Plaintiff benefits. Plaintiff did
not treat the Medical Center as an employer for tax purposes. The MRI equipment
was provided by the Insight Parties via a mobile platform. Under these
undisputed facts, the County has met its initial burden to show that it was not
Plaintiff’s joint employer, and Plaintiff has failed to meet its resulting
burden to show a triable issue of fact on this matter.
There are additional reasons to grant summary adjudication. Plaintiff
admitted that he never received any form of discipline from the County. (CMF
15.) Further, as discussed above, none of the actions directed at Plaintiff –
by Insight or County employees – rise to the level of constructive discharge.
The Court therefore grants summary adjudication to the
County on this claim.
“To establish a prima facie case of retaliation under the
[Fair Employment and Housing Act] 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.” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879,
brackets omitted.) “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 contends that Kay reflexively issued discipline to
Plaintiff in response to the Medical Center employees’ complaints in order to
retaliate against Plaintiff for complaining about the Medical Center employees’
allegedly discriminatory behavior.
As discussed above, the verbal and written discipline alone
was insufficient to constitute an adverse employment action. “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, supra, 191 Cal.App.4th at p. 1063, quotation marks omitted.) Mere
warnings and negative performance review do not rise to this level. Further,
the circumstances that Plaintiff encountered do not rise to the level of
constructive discharge for the reasons discussed above.
The Insight Parties have shown that there is no triable
issue that Plaintiff suffered an adverse employment action. Plaintiff has
failed to create a triable issue of fact that he suffered an adverse employment
action.
The Court therefore grants summary adjudication to the
Insight Parties on this claim.
As discussed above, there is no triable issue of fact that
the County was Plaintiff’s employer or joint employer, and the County is therefore
entitled to summary adjudication.
There are additional reasons to grant summary adjudication. Plaintiff
admitted that he never received any form of discipline from the County. (CMF
15.) Further, as discussed above, none of the actions directed at Plaintiff –
by Insight or County employees – rise to the level of constructive discharge. In fact, Plaintiff has admitted that he does
not know whether the County knew that Plaintiff reported any illegal conduct.
(CMF 11-12.) The County therefore could not have retaliated against Plaintiff
for reporting harassment or discrimination to Kay. The County has shown that
there is no triable issue of fact that it disciplined Plaintiff or that it knew
of Plaintiff’s reports, and Plaintiff has failed to meet its corresponding
burden to demonstrate a triable issue of fact to that effect.
The Court therefore grants summary adjudication to the
County on this claim.
The elements of a cause of action for failure to prevent
harassment or retaliation are: (1) actionable discrimination or harassment by
employees or nonemployees; (2) defendant’s legal duty of care toward plaintiff
(i.e., defendant is the plaintiff’s employer); (3) breach of that duty (i.e.,
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; Bradley v. Department of Corrections & Rehabilitation (2008)
158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.)
Insight has provided evidence that it distributed an
anti-harassment policy each year that Plaintiff worked there. (IMF 1-4.)
Further, when Plaintiff reported that he was experiencing harassment and
discrimination to an HR representative, the Insight Parties’ HR officers
scheduled two follow-up meetings with Plaintiff to further investigate the
issue. Plaintiff has not provided evidence that he complained of Kay’s behavior
– only of that of the Medical Center staff, which was the topic of the
follow-up meetings.
Based on the above, the Court requests argument about
whether the Insight Parties can be liable for their failure to prevent
harassment by personnel from the County, their client.
As discussed above, there is no triable issue of fact that
the County was Plaintiff’s employer or joint employer, and the County is
therefore entitled to summary adjudication, because this cause of action
requires an employment relationship.
The Court therefore grants summary adjudication to the
County on this claim.
“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. It is well established that a termination premised on an
employee’s refusal to violate either a statute or an administrative regulation
may support a claim for wrongful termination in violation of public policy.” (Nosal-Tabor v. Sharp Chula Vista Medical Center
(2015) 239 Cal.App.4th 1224, 1234, citation omitted.)
As discussed above, there is no triable issue of fact that
the Insight Parties actually or constructively terminated Plaintiff. The Court
therefore grants summary adjudication to the Insight Parties on this claim.
As discussed above, there is no triable issue of fact that
Plaintiff was constructively terminated. The County is therefore entitled to
summary adjudication.
As an alternate basis for granting summary adjudication,
there is no triable issue of fact that the County was Plaintiff’s employer or
joint employer.
The Court therefore grants summary adjudication to the
County on this claim. Because this dispenses of all of Plaintiff’s claims
against the County, the Court grants the County’s motion for summary judgment.
Labor Code, section 226, subd. (a) requires that employers
provide accurate wage statements with nine categories of information. (Lab.
Code, § 226, subd. (a).)
“Wage statement penalties are awarded only to employees who
suffer injury ‘as a result of a knowing and intentional failure by an employer
to comply with subdivision (a).’” (Maldonado v. Epsilon Plastics, Inc.
(2018) 22 Cal.App.5th 1308, 1335, quoting Lab. Code, § 226, subd. (e)(1).) “In
short, while the statute requires nine categories of information to be included
in a wage statement, injury is only presumed if one of five specific categories
is omitted, and, even then, only if a reasonable person would be unable to
readily ascertain the missing information without reference to other documents
or information.” (Ibid.)
Plaintiff’s wage statements are facially compliant,
including both his overtime rate and overtime hours worked. (IMF 54.) Plaintiff
states that he did not have sufficient information about his wage statements
during his employment, but provides no evidence of this fact. (PIMF 54.) Furthermore,
when asked about his wage statements at his deposition, Plaintiff admitted that
he did not and still does not look in his wage statements. (IMF 55.) The
Insight Parties have therefore shown that there is no triable issue of fact
that Plaintiff did not suffer an injury.
The burden shifts to Plaintiff. Plaintiff does not discuss this claim in his
opposition, and has therefore failed to demonstrate a triable issue of fact.
The Court therefore grants summary adjudication to the
Insight Parties on this claim.
An employer must give its employees a 30-minute meal within
the first 5 hours of their shift and rest breaks. (Lab. Code §§ 226.7(a),
512(a); IWC Wage Order No. 4-2001.) An employer satisfies this duty “if it
relieves its employees of all duty, relinquishes control over their activities
and permits them a reasonable opportunity to take an uninterrupted thirty
minute break, and does not impede or discourage them from doing so.” (Cleveland
v. Groceryworks.com, LLC (N.D. Cal. 2016) 200 F.Supp.3d 924, 946.) As such,
“an employee must show that he was forced to forego his meal [and rest] breaks
as opposed to merely showing that he did not take them regardless of the
reason.” (White v. Starbucks Corp. (N.D. Cal. 2007) 497 F.Supp.2d 1080,
1089.)
Insight’s Pay Practice policy requires that non-exempt
employees receive a 30-minute meal break for every 5 hours worked and a second
30-minute meal break for work periods of more than 10 hours per day, subject to
limited voluntary waivers by the employee. (IMF 5.) Plaintiff acknowledged
receiving the policy and would punch out for lunch when he was on a lunch
break. (IMF 11, 58.) Insight’s timekeeping system automatically identifies
instances where an employee’s time punches do not reflect a 30-minute meal
break for a shift of 5 hours or more, or a second 30-minute meal break for a
shift of 10 hours or more. (IMF 6.) In those instances, the system
automatically assigns an additional hour of pay to that employee for that day.
(IMF 6.) Managers do not need to approve these premium payments and there is no
maximum number of premium payments an employee can receive. (IMF 7, 8.) Smith
received premium payments in each year of his employment. (IMF 7, 8.) Every
other Thursday, all employees received a Timecard Review and Approval Reminder
instructing employees to review and correct their timecards. (IMF 9.) Employees
are not penalized for doing so. (IMF 10.)
Plaintiff does not dispute any of these facts. Nor does
Plaintiff discuss this claim in his opposition. The Insight Parties have
therefore shown that there is no triable issue that Insight fulfilled its duty
to provide adequate meal breaks, and Plaintiff has not created a triable issue
of fact as to this showing.
The Court therefore grants summary adjudication to Insight
on this claim.
“An employer's duty with respect to meal breaks under both
section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a
meal period to its employees. The employer satisfies this obligation if it
relieves its employees of all duty, relinquishes control over their activities
and permits them a reasonable opportunity to take an uninterrupted 30-minute
break, and does not impede or discourage
them from doing so.” (Brinker Restaurant Corp. v. Superior Court (2012)
53 Cal.4th 1004, 1040.) “[T]he employer is not obligated to police meal breaks
and ensure no work thereafter is performed. Bona fide relief from duty and the
relinquishing of control satisfies the employer's obligations, and work by a
relieved employee during a meal break does not thereby place the employer in
violation of its obligations[.]” (Id. at pp. 1040-1041.)
Insight has a clearly stated policy regarding rest breaks,
which it communicated to Plaintiff through its Pay Practices policy. (IMF 5,
11.) Kay expected her technicians to arrange for rest breaks among themselves
and alert her if they were unable to do so. (IMF 59, 60.) Smith testified that
there could be a lot of downtime between patients depending on the day and that
he was free to walk outside or check his phone during downtime between
patients. (IMF 62-63.) Smith never complained to anyone at Insight that he was
unable to take rest breaks. (IMF 61.) Insight has therefore shown that there is
no triable issue that it met its obligations. Plaintiff does not discuss this
claim in his opposition, and has therefore failed to demonstrate a triable
issue of fact in response.
The Court therefore grants summary adjudication to Insight
on this claim.
It is well-settled policy in California that all of an
employee’s earned wages must be fully and promptly paid. (Smith v. Superior
Court (2006) 39 Cal.4th 77, 82.) Failure to promptly pay wages results in a
waiting time penalty whereby the wages continue to accrue up to a maximum of 30
days. (Lab. Code § 203.)
“‘Wages’ includes all amounts for labor performed by
employees of every description, whether the amount is fixed or ascertained by
the standard of time, task, piece, commission basis, or other method of
calculation.” (Lab. Code, § 200.) Bonuses are treated as wages when the bonus
is promised as part of compensation and the employee fulfills any agreed-to
conditions for the bonus. (Neisendorf v. Levi Strauss & Co. (2006)
143 Cal.App.4th 509, 522.)
All earned wages are due and payable immediately upon an
employee’s termination. (Lab. Code, § 201, subd. (a).)
“[L]iability is contingent on proof [the defendant] knew or
should have known off-the-clock work was occurring.” (Brinker Restaurant
Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1051.)
Insight maintains strict timekeeping policies and requires
employees to accurately report their time. (IMF 1-4, 9-11.) Employees are
required to review their timecards each pay period to ensure accuracy and
completeness. (IMF 9-11.) Smith “had no idea” how many hours of overtime he did
not get paid for, and in any event did not make any effort to alert Insight to
any unpaid wages. (IMF 56-57, 64.) Here, Insight maintained adequate safeguards
as demonstrated by its extensive timekeeping system, and further lacked actual
knowledge of a failure to pay overtime. However, Insight has not rebutted the
actual claim that it owes unpaid wages – and to the extent that it does, it is
now on notice of that fact. Thus,
Insight has failed to meet its initial burden on summary judgment.
The Court therefore denies summary adjudication to Insight
on this claim.
In order to trigger waiting time penalties, a violation of
section 203 must be willful. (Lab. Code, § 203, subd. (a).)
As discussed above, Insight has not rebutted the actual
claim that it owes unpaid wages – and to the extent that it does, it is now on
notice of that fact.
The Court therefore denies summary adjudication to Insight
on this claim.
The
Insight parties argue that this claim fails because it is derivative of
Plaintiff’s other claims. Because some of Plaintiff’s other claims against
Insight survive, the Court denies summary adjudication on this claim.
Punitive damages are appropriate when a defendant acted with
malice, oppression, or fraud. (Civ. Code, § 3294, subd. (a).) “Malice” is
defined as conduct intended to cause injury to a person or despicable conduct
carried on with a willful and conscious disregard for the rights or safety of
others. (Turman v. Turning Point of Cent.
Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable
conduct subjecting a person to cruel and unjust hardship, in conscious
disregard of the person’s rights. (Ibid.)
“Fraud” is an intentional misrepresentation, deceit, or concealment of a
material fact known by defendant, with intent to deprive a person of property,
rights or otherwise cause injury. (Ibid.)
“An employer shall not be liable for damages pursuant to
subdivision (a), based upon acts of an employee of the employer, unless the
employer had advance knowledge of the unfitness of the employee and employed
him or her with a conscious disregard of the rights or safety of others or
authorized or ratified the wrongful conduct for which the damages are awarded
or was personally guilty of oppression, fraud, or malice. With respect to a
corporate employer, the advance knowledge and conscious disregard, authorization,
ratification or act of oppression, fraud, or malice must be on the part of an
officer, director, or managing agent of the corporation.” (Civ. Code, § 3294,
subd. (b).)
Although Plaintiff has created a triable issue of fact as to
harassment by Kay and some of the Medical Center employees, Plaintiff has not
shown evidence that the Insight Parties had advance knowledge of any unfitness
by Kay, nor has he shown evidence of oppression, malice, or fraud on the part
of an officer, director, or managing agent of the Insight Parties. The Insight
Parties have therefore shown that there is no triable issue of fact as to
punitive damages, and Plaintiff has failed to create one.
The Court therefore grants summary adjudication to the
Insight Parties on the issue of punitive damages.