Judge: Joseph Lipner, Case: 22STCV04410, Date: 2023-10-19 Tentative Ruling

Case Number: 22STCV04410    Hearing Date: October 19, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendants The Regents of the University of California (sued as Ronald Reagan UCLA Medical Center) and Naida O’Bryant (collectively, “Defendants”) move for summary judgment on Plaintiff Orethea Flowers’s (“Plaintiff”) race harassment claim. The motion is opposed.

Defendants’ motion for summary judgment is DENIED.

Background

          Plaintiff brought this wrongful termination action against Defendants, alleging two causes of action for (1) race harassment in violation of Gov’t Code §§12940 et seq. and (2) race discrimination in violation of Gov’t Code §§12940 et seq.

However, on March 20, 2023, the Court entered the parties’ joint stipulation to dismiss Plaintiff’s second cause of action for race discrimination as an order.  Therefore, only the first cause of action for race harassment remains.

Discussion

Legal Standard

“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 defendant moving for summary judgment or summary adjudication “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 … cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) 

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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 (“Avivi”).)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467.)

“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.)

Plaintiff’s Claims

          The Complaint alleges the following. Since approximately 1996, Plaintiff served as a Senior Licensed Vocational Nurse for Defendant The Regents of the University of California (sued as Ronald Reagan UCLA Medical Center) (“Defendant UCLA Medical”), and beginning in 2008, worked under Charge Nurse Naida O’Bryant (“O’Bryant”), who is not African American. (Compl., ¶¶ 9, 10.)

          “Over the years, O’Bryant made offensive comments in front of [Plaintiff], such as, ‘I don’t know why Black people are always getting in trouble,’ and ‘It’s always an issue with Blacks.’ She also asked racially charged questions such as, ‘You’re Black, what do you think about this?’ and ‘Do all Black people play music loudly?’ O’Bryant also spoke derisively about former president Barack Obama, who is African American.” (Compl., ¶ 10.)

          “In addition to these comments, O’Bryant engaged in bullying behavior toward [Plaintiff]. O’Bryant constantly policed [Plaintiff] in the workplace and tried to find fault with her work, even though [Plaintiff] had never received a negative evaluation of her work performance.” (Compl., ¶ 11.) “O’Bryant was responsible for creating the unit’s schedule and had authority over work placements/assignment and used said authority to pair [Plaintiff] with employees who had a reputation of lacking work ethic or being with difficult patients. When [Plaintiff] complained about the assignments because she had heavier workload than other employees, O’Bryant disregarded her. (Compl., ¶ 11.)

          In 2016, when Plaintiff reported a nurse for wrongfully and unlawfully withholding pain medication from a patient who kept complaining of pain, O’Bryant issued a write-up against Plaintiff instead of addressing Plaintiff’s complaint. (Compl., ¶ 12.) “It was only when [Plaintiff] escalated the situation to Unit Director, Jennifer Do (hereinafter, ‘Ms. Do’), that the issue was properly addressed and [the nurse] was banned from the unit. UCLA Medical, however, did not reprimanded [sic] O’Bryant for writing up [Plaintiff] for complaining about improper patient care and turned a blind eye to O’Bryant’s discriminatory, retaliatory, and harassing conduct.” (Compl., ., ¶ 12.)

O’Bryant continued to express and even escalate her harassing conduct after the 2020 events surrounding the death of George Floyd, an African American man who was killed by police, and the Black Lives Matter movement that took place thereafter. (Compl., ¶ 13.) “By way of example, and without limitation, O’Bryant made angry and racially charged comments such as: ‘I can’t believe I have to go home through the riots,’ ‘All Black people steal, don’t they?’ and ‘Black nurses don’t come to work; they are out rioting.’ O’Bryant directed these comments at specific employees or sometimes to the room at-large.” (Compl., ¶ 13.)

“In or around June 2020, O’Bryant made offensive comments about the protests to nurses in the lounge area. O’Bryant said something to the effect of, ‘They are all criminals’ including George Floyd who, according to her, was also a criminal. O’Bryant also asked one of the nurses, ‘Your husband is Black, what does he think of all of this?’ On another such occasion, O’Bryant called RN Francesca Mephors …, who is African American, to relieve her for her break for the evening. O’Bryant told Mephors that she still had time to go riot and loot before coming into her shift.” (Compl., ¶ 14.)

“In or around June 2020, [Plaintiff] and several other nurses reported O’Bryant to the other charge nurses, Hyesuk Jun … and Gina Guerra …, who were also personal friends of O’Bryant. Jun and Guerra stated they attempted to talk to O’Bryant, but Jun told Ms. Flowers that O’Bryant ‘wasn’t listening.’ O’Bryant also reportedly said she was retiring in September and did not care about these complaints. Jun and Guerra did not escalate the matter to upper management and nothing else was done, and O’Bryant continued her harassing behavior.” (Compl., ¶ 15.)

“Despite [Plaintiff’s] numerous complaints, O’Bryant was allowed to continue working until her retirement in or about September 2020.” (Compl., ¶ 16.)

“O’Bryant’s racist harassment, as well as UCLA Medical’s refusal to address it, took a toll on [Plaintiff’s] mental health. [Plaintiff] continued suffering from severe headaches, migraines, and extreme weight loss and was placed off work several times between on or about January and February 2021. [Plaintiff’s] doctor finally took [Plaintiff] off work due to an ‘incapacitating injury’ in or about March 2021 due to the racist workplace she was forced to endure.” (Compl., ¶ 17.)

Defendants’ Summary Judgment Motion

Defendants move for summary judgment on Plaintiff’s race harassment claim, arguing that Plaintiff cannot prove a prima facie case of unlawful harassment based on race under the Fair Employment and Housing Act (Gov't Code § 12900, et seq.) (“FEHA”).

“Under the FEHA, it is an unlawful ‘[f]or an employer ... or any other person, because of race … to harass an employee ....’ (Gov. Code, § 12940, subd. (j)(1).)” (Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 38 (“Caldera”).) “‘[L]iability for harassment is broader than liability for discrimination. [L]iability for harassment, which extends to “any person” and hence extends to “individuals,” encompasses individual supervisory employees.’ [Citation.]” (Ibid.)

“Harassment is distinguishable from discrimination under the FEHA. ‘[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.’ [Citation.]” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869 (“Serri”).) “‘Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct.’” (Ibid.)

“‘The law prohibiting harassment is violated “[w]hen the workplace is permeated with discriminatory intimidation, ridicule and insult that is ‘“sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”’” [Citations.]’ [Citation.]” (Caldera, supra, 25 Cal.App.5th at p. 38.) “The determination ‘is ordinarily one of fact.’ [Citation.] All harassment claims require severe or pervasive conduct. [Citation.] The words ‘severe’ and ‘pervasive’ have no peculiar meanings under the law. The adjective ‘severe’ is defined as ‘strongly critical and condemnatory’ or ‘inflicting pain or distress.’ [Citation.] The verb ‘pervade’ is defined as ‘to become diffused throughout every part of.’ [Citation.]” (Ibid. [italics in original].)

“‘Whether the conduct of the alleged harassers was sufficiently severe or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances.’” (Serri, supra, 226 Cal.App.4th at p. 870.)   The totality of the circumstances may include the frequency and severity of the conduct, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with work performance.  (Ibid.)  “Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing ... and conduct [that] a reasonable person in the plaintiff's position would find severely hostile or abusive.” (Serri, supra, 226 Cal.App.4th at p. 870.)

“An employee’s work environment is affected not only by conduct directed at the employee but also by the treatment of others. [Citation.] To establish a hostile work environment caused by the treatment of others, the plaintiff generally must show that the harassment directed at others was in his immediate work environment, and that he personally witnessed it.” (Alexander v. Community Hospital of Long Beach (2020) 46 Cal.App.5th 238, 262.)

Attempting to meet their initial burden of showing that Plaintiff’s race harassment claim has no merit, Defendants submit deposition transcripts from Plaintiff. (Declaration of Felton Newell, filed August 3, 2023 (“Newell Decl.”), ¶ 3; Exhibit 2 – a copy of the deposition transcripts (“Plaintiff’s Depo.”).) During her deposition, Plaintiff testified that between 2008 and 2020, she heard O’Bryant say the phrase: “I don’t know why Black people are always getting in trouble.” (Plaintiff’s Depo., p. 22:3-9.) However, she did not tell her supervisor Ms. Do at that time about the comment because she was in fear of retaliation; she explained that when other nurses complained about something, for example, their assignments would not be to their liking, but Plaintiff could not provide specific examples of retaliation. (Plaintiff’s Depo., pp. 29:18-19:14.) Plaintiff also testified about the conversation she had with O’Bryant about the George Floyd case and President Barack Obama being president, but (Defendant argues) those conversations showed political differences, not racial animus. (Plaintiff’s Depo., pp. 48:17-49:23; 60:1-61:12.) Plaintiff also testified that although O’Bryant showed up where she was and asked if she had performed certain tasks, those actions were consistent with O’Bryant’s role as a charge nurse; Plaintiff testified that it was O’Bryant’s sarcastic tone and demeanor when she was doing those actions that was improper. (Plaintiff’s Depo., pp. 69:5-72:2.) Plaintiff also testified that during a period of 12 years, she recalled O’Bryant changing her assignments “on some occasions” to a heavier load, but she also recalled O’Bryant changing it to a lighter load sometimes. (Plaintiff’s Depo., pp. 74:4-77:1.) Plaintiff also testified that O’Bryant once asked her whether “all Black people play music loudly …,” during a conversation regarding Plaintiff’s Harley Davidson. (Plaintiff’s Depo., pp. 81:11-83:16.) Plaintiff also testified that O’Bryant made a comment when Plaintiff was present, “It’s always an issue with Blacks,” with regard to a police chase and a cop shooting a Black person. (Plaintiff’s Depo., pp. 85:24-87:12.)

Defendants also submits an email Plaintiff sent to Ms. Do, highlighting only the portion where Plaintiff states: “Over the years that I have worked with Naida I have heard her speak on her political views, her dislike of then President Obama. Her status as a Republican and much more. Most of the older staff were aware of that too.” (Newell Decl., ¶ 4; Exhibit 3 – a copy of the email.)

Lastly, Defendant submits a declaration from Ms. Do, who only attests to having the above-mentioned email exchange with Plaintiff. (Declaration of Jennifer Y. Do, filed August 4, 2023, ¶ 3.)

As stated above, “[o]n 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., supra, 128 Cal.App.4th at p. 1519.) A defendant moving for summary judgment “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 … cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) 

Here, Defendants’ evidence is insufficient for the Court to find that the Defendant has met its initial burden of showing that Plaintiff’s race harassment cause of action has no merit and that there are no triable issues of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) Far from meeting that burden, Defendants’ evidence shows that the issues in this case are heavily fact-dependent and will turn on factual determinations that are inappropriate for summary judgment.

For example, the portion of Plaintiff’s deposition transcript that the Defendant has submitted supports Plaintiff’s allegation that O’Bryant made race-related comments as a supervisor. O’Bryant made certain of these comments directly to or within the hearing of Plaintiff.  (See UMF 2, 3, 4, 7, 10.)  O’Bryant made other comments to employees other than Plaintiff, and the comments were conveyed to Plaintiff.  (See UMF 5.) There is no declaration or testimony from O’Bryant denying making the comments alleged in the Complaint or explaining her motives for making those comments. In addition, Ms. Do (Plaintiff’s supervisor) does not testify that she was unaware of Plaintiff’s race harassment complaints or O’Bryant’s conduct. She also does not deny the Complaint’s allegation that UCLA Medical did not do anything regarding O’Bryant’s comments (e.g., implement a harassment policy). Further, the evidence does not negate Plaintiff’s allegation that as a result of O’Bryant’s harassment and UCLA Medical’s refusal to address the harassment, Plaintiff suffered from mental health issues, including headaches, migraines, and extreme weight loss, and was placed off work several times between on or about January and February 2021. At best, Defendant’s evidence shows that there is a question of fact regarding whether O’Bryant’s conduct was sufficiently severe or pervasive to alter the conditions of the Plaintiff’s employment and create an abusive working environment.

Defendants attempt to rely on Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457 to show that Plaintiff’s evidence does not amount to harassment.  Notably, Etter is an appeal from a jury verdict, not a summary judgment ruling.  It does not support the argument that the case lacks sufficient facts to be submitted to the trier-of-fact.

Accordingly, since Defendant has failed to meet its initial burden, the burden does not shift to Plaintiff to show that a triable issue of one or more material facts exists as to her first cause of action for race harassment. (Code Civ. Proc., § 437c, subd. (p)(2).)

          The Court therefore DENIES the motion for summary judgment.