Judge: Joseph Lipner, Case: 22STCV39745, Date: 2025-06-13 Tentative Ruling
Case Number: 22STCV39745 Hearing Date: June 13, 2025 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
SEDEYEH SALVATIAN, Plaintiff, v. ART REPRODUCTIVE CENTER, LLC, Defendant. |
Case No:
22STCV39745 Hearing Date: June 13, 2025 Calendar Number: 15 |
Defendant Art Reproductive Center (“Defendant”) moves for
summary judgment against Plaintiff Sedeyeh Salvatian (“Plaintiff”). In the
alternative, Defendant seeks summary adjudication on each of Plaintiff’s causes
of action and on Plaintiff’s claim for punitive damages.
The Court GRANTS summary adjudication on Plaintiff’s claim
for punitive damages.
The Court DENIES summary adjudication on the remaining
issues.
The Court DENIES the motion for summary judgment.
This is an employment case. The following facts are taken
from the parties’ separate statements. The Court resolves disputes of fact in
favor of the nonmoving party.
Around August 2018, Plaintiff began working for Defendant as
an embryologist. As a Senior Embryologist, Plaintiff’s job duties included
those of a Junior Embryologist, as well as additional procedures including the
freezing and thawing of embryos, eggs, embryo biopsies, and sperm injections.
Plaintiff’s job duties also included moving large and small nitrogen tanks, the
smaller of which weighed between 10 and 25 pounds. (See Plaintiff’s Additional
Fact (“AF”) 1-3; Defendant’s Undisputed Fact (“UF”) 1, 3, 7-8.)
Plaintiff’s team leader, Deborah Johnson (“Johnson”),
believed Plaintiff to be a highly competent embryologist whose performance
consistently met or exceeded expectations. (AF 7.)
On May 21, 2021, Plaintiff injured her back while moving
nitrogen tanks. Plaintiff told Johnson and Plaintiff’s lab director, Jason
Barritt, that her back hurt and she could not move nitrogen tanks, but nothing
changed as a result of her complaints. (UF 9; AF 8.)
On July 15, 2021, Plaintiff further injured her back while
moving tanks and sought medical attention on her own. (UF 10, AF 9.) On July
20, 2021, Plaintiff emailed Human Resources about her injury and provided a
doctor’s note which placed her off work until July 26, 2021. (UF 14, AF 10.)
The note provided work restrictions of no pushing, pulling, or lifting anything
over 2 pounds, and no standing for over 30 minutes. (UF 14; AF 10.)
On July 26, 2021, Plaintiff returned to work. On July 27,
2021, Baritt and Jameka McNeal, Defendant’s Human Resources representative,
participated in an interactive process meeting with Plaintiff. (UF 15.) At the
meeting, it was decided that Plaintiff would be removed from the rotation for
big nitrogen tanks, but she was still expected to move smaller tanks, which
weighed more than 10 pounds. (UF 15; AF 19.) Plaintiff testified at her
deposition that, when moving small nitrogen tanks was incidental to a procedure
she was performing, she was not sure how Defendant would accommodate a request
for her not to have to move the small tanks. (UF 24.) Except for moving the
large nitrogen tanks, Plaintiff continued performing her usual job duties. (UF
18, AF 21.)
On August 4, 2021, Plaintiff’s work restrictions were
modified to no pushing, pulling, or lifting over 5 pounds. (AF 11.) On August
11, 2021, the maximum weight was modified to 10 pounds. (AF 12.)
Plaintiff provides evidence that a number of her coworkers
made harsh comments to her regarding her injury. On one occasion, when
Plaintiff stated that she could not open a door for someone because her back
hurt, Johnson commented “Yeah, we know you are disabled”, while other coworkers
present laughed. (UF 24.) Plaintiff also faced pressure from Barritt to return
to her regular work status. (AF 22.) Plaintiff contends that another coworker,
Nasario Ramos, had a pattern of asking Plaintiff why she was not moving
nitrogen tanks and laughing at Plaintiff when she said that her back hurt.
(Salvatian Depo. at 94:17-96:11.) Plaintiff reported Ramos’s conduct, resulting
in at least one meeting between Ramos, Plaintiff, and HR.
Towards the end of April 2021, McNeal was replaced as HR
representative by Rosanna Renteria. Barritt sent Plaintiff a text message
stating that she needed to talk to HR about her temporary accommodations to see
whether they could continue to accommodate her. Plaintiff asked Barritt if he
was going to fire her, to which he responded, “Something needs to be done.” (UF
25; AF 27.)
On September 1, 2021, Plaintiff filed an Employee
Injury/Illness Notification Report and Workers’ Compensation Claim Form with
Human Resources. (UF 28.) In a
conversation with Plaintiff when Plaintiff filed the form, Renteria shared some
of her own experiences pursuing a complaint at a different job and told
Plaintiff that Plaintiff did not have any evidence and that “No court is going
to believe you.” (Salvatian Depo. at 152:6-22.) Plaintiff believed that
Renteria was trying to convince her not to file a claim. (AF 30.)
On September 3, 2021, after receiving no response from
workers’ compensation, Plaintiff sent Renteria a digital copy of the forms as a
way to follow up on the status of her claim. (AF 31.) On September 9, Renteria
emailed Plaintiff asking Plaintiff to confirm whether she wanted to file the
claim or not. (AF 29.) Plaintiff was surprised that the claim had not been
filed yet, because she had never indicated to Renteria that she did not wish to
proceed with filing the claim. (AF 32.)
On September 4, 2021, a physical incident occurred between
Plaintiff and Jose Vaca, a coworker. Plaintiff set up to perform a procedure
before momentarily stepping out of the room. (AF 33.) Upon returning, Plaintiff
found that Vaca was seated at her work station and was about to begin a
procedure. (UF 31.) The two conversed about who was going to do the procedure.
(AF 34.) Plaintiff contends that this conversation was joking, but Vaca
testified that he did not recall whether he was smiling and laughing, and that
Plaintiff and Vaca never bantered with each other before. (AF 34; Defendant’s
Response to Plaintiff’s Additional Fact (“RAF”) 34.) Defendant characterizes
this conversation as a dispute about who was going to perform the procedure.
(UF 32-33.)
Video footage was recorded of the event. (AF 35.) When asked
to describe in her deposition what happened in the video footage, Johnson
stated “It appeared to me that [Plaintiff] attempted to remove Vaca from the
seat. There appeared to be some resistance from Vaca to move. And then
[Plaintiff] pushed the chair with him in it across the room.” (AF 35.) As the
exchange occurred, coworkers Nasario Ramos and Desiree Solano were in the room
and laughing. (AF 36; Salvatian Depo. at 180:6-7, 189:1-8.) Vaca testified at
his deposition that “[m]aybe at first I was smiling and laughing, but then when
[Plaintiff] started with the pushing, then it got pretty serious”. (RAF 36.)
During the incident, Johnson was in the adjacent room and
did not hear anything that would cause her alarm. (AF 43.) After the incident,
Johnson learned what had happened from speaking with Vaca, and did not report
the incident. (AF 44-45.) Later that day, Ramos informed Vaca that he was going
to report the incident because Plaintiff was able to push Vaca despite her work
restrictions. (UF 36; AF 46.) Vaca did not like the fact that Ramos was going
to report the incident at first, because he never intended to report it
himself. (AF 47.) Ramos reported the incident to Robyn O’Leary. (AF 48.)
Defendant has a “Zero Tolerance Policy” with regard to
workplace harassment, which means that behavior that is inappropriate in the
workplace can mean disciplinary action up to and including termination. (AF
50.) Johnson testified that there is an “unwritten rule” in an IVF laboratory
that there is absolutely no room for any kind of behavior that is physical due
to the nature of embryologists’ work. (UF 42.) Defendant’s Employee Handbook
contains an Anti-Harassment policy that states that Defendant will immediately
undertake an effective, thorough, and objective investigation in response to
complaints of harassment. (UF 43; AF 49.)
Following the incident, Renteria interviewed Vaca. (UF 36.)
Vaca was asked if he was injured or felt harassed, to which Vaca responded
“no”. (AF 52.) Johnson was not interviewed and did not know if an investigation
took place. (AF 53.) Solano, who was present for the incident, was not
interviewed. (AF 54.) Despite the fact that that Johnson’s role as team leader
included taking part in disciplinary actions against members of her team,
Johnson took no part in the decision to terminate Plaintiff, did not know the
reason why Plaintiff was terminated, and was not informed of the decision to
terminate Plaintiff. (AF 55.)
On September 20, 2021, Plaintiff was instructed to report to
Human Resources and was told that her employment was terminated. (UF 38.)
Plaintiff filed this action on December 21, 2022, raising
claims for (1) disability discrimination; (2) failure to accommodate; (3)
failure to engage in an interactive process; (4) failure to prevent
discrimination; (5) wrongful termination in violation of public policy; and (6)
failure to provide personnel file.
On March 24, 2025, Defendant moved for summary judgment.
Plaintiff filed an opposition and Defendant filed a reply.
On May 23, 2025, Plaintiff filed a request for dismissal of
her sixth cause of action only. Dismissal of Plaintiff’s sixth claim was
entered on May 28, 2025.
The Court has reviewed Defendant’s objections to Plaintiff’s
evidence.
The Court sustains the following objections: 1 (personal
knowledge); 2 (personal knowledge); 3 (personal knowledge); 4 (personal
knowledge). The Court overrules the 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 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 . . .
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 the cause of action or
a defense thereto.” (Ibid.) 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.)
As a preliminary matter, the Court notes that the parties’
briefs were well-formatted with electronic bookmarks that make navigation
significantly easier. The Court appreciates counsels’ efforts to make their
filings easily navigable.
To establish a claim for discrimination, a plaintiff must
show “that (1) [the plaintiff] was a member of a protected class, (2) [the
plaintiff] was qualified for the position [they] 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.)
A claim for discrimination is governed at trial by the
well-established McDonnell Douglas test, under which plaintiff has the
initial burden to establish a prima facie case of discrimination. After the plaintiff meets that initial
burden, the burden shifts to the employer to produce admissible evidence that
its action was taken for a legitimate discriminatory burden. If it does so, the burden again shifts to
plaintiff to establish the defendant discriminated against him and her,
including by producing evidence of pretext.
(Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964-965
[explaining the test under McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792].)
However, the “burdens and order of proof . . . shift under
the McDonnell Douglas test when an employer defendant seeks summary
judgment.” (Swanson, supra 232 Cal.App.4th 954, 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.) To avoid summary
judgment where an employer establishes a legitimate nondiscriminatory reason,
“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., quoting Hersant v. Dep’t of
Social Services (1997) 57 Cal.App.4th 9997, 1004-1005.)
By applying¿McDonnell Douglas’s shifting burdens of
production in the context of a motion for summary judgment, ‘the judge [will]
determine whether the litigants have created an issue of fact to be decided by
the jury.’ [Citation.]” (Caldwell v. Paramount Unified School Dist.
(1995) 41 Cal.App.4th 189, 203.)
Defendant has carried its initial burden to show the
existence of a legitimate, nondiscriminatory reason for terminating Plaintiff.
Defendant has provided evidence that it terminated Plaintiff because she pushed
a coworker in an IVF laboratory, which is not generally tolerated.
Plaintiff has produced evidence that could allow a
reasonable trier of fact to find pretext. Defendant did not interview Solano,
who was present for the incident. Further, Plaintiff’s team leader, Johnson,
was not involved in the decision to terminate Plaintiff, or even informed of
the decision, despite participation in the discipline of Johnson’s team members
being part of Johnson’s role. Plaintiff has provided evidence that no
substantial discipline was undertaken against Ramos, despite ongoing harassment
by Ramos of Plaintiff (even though such harassment was not physical).
Furthermore, a few months beforehand, Barritt and had told Plaintiff that
“[s]omething needs to be done” about Plaintiff’s accommodations, and Renteria
had discouraged Plaintiff from seeking workers’ compensation and delayed in
filing Plaintiff’s workers’ compensation claim. These facts could allow a trier
of fact to find that Defendant’s basis for terminating Plaintiff was
pretextual.
The Court therefore denies summary adjudication on this
claim.
Under Government Code, section 12940, it is an unlawful
employment practice “to fail to make reasonable accommodation for the known
physical or mental disability of an applicant or employee” unless the employer
demonstrates doing so would impose an undue hardship. “The essential elements
of a failure to accommodate claim are: (1) the plaintiff has a disability
covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or
she can perform the essential functions of the position); and (3) the employer
failed to reasonably accommodate the plaintiff's disability.” (Wilson v.
County of Orange (2009) 169 Cal.App.4th 1185, 1192.)
Here, the parties agree that Plaintiff was not required to
move large nitrogen cannisters after the accommodation meeting, but that
Plaintiff was required to move smaller cannisters, which could weigh more than
10 pounds. Plaintiff’s doctor’s note did not permit her to move more than 10
pounds. Plaintiff does not contend that she subsequently asked for such
accommodations; however, at the time of the meeting, Plaintiff’s restriction
was even lower than 10 pounds. A reasonable fact finder could therefore conclude
that Defendant failed to accommodate Plaintiff’s injury.
Defendant argues that Plaintiff’s ability to push Vaca
‘across the room’ renders her contention that she had a 10-pound restriction
frivolous. But the fact that Plaintiff could move over 10 pounds does
not prove that Plaintiff could safely move over 10 pounds. Moreover, this argument presents a fact issue,
not one that can be decided on summary judgment.
The Court therefore denies summary adjudication on this
claim.
“FEHA requires an informal process with the employee to
attempt to identify reasonable accommodations, not necessarily ritualized
discussions.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359,
379.)
Once initiated, the employer has a continuous obligation to
engage in the interactive process in good faith. “Both employer and employee
have the obligation ‘to keep communications open’ and neither has ‘a right to
obstruct the process.’” [Citation.] Each party must participate in good faith,
undertake reasonable efforts to communicate its concerns, and make available to
the other information which is available, or more accessible, to one party.
Liability hinges on the objective circumstances surrounding the parties’
breakdown in communication, and responsibility for the breakdown lies with the
party who fails to participate in good faith. [Citation.] (Swanson v.
Morongo Uni¿ed School Dist. (2014) 232 Cal.App.4th 954, 971–972.)
Here, the parties agree that Defendant held an interactive
process meeting with Plaintiff the day after Plaintiff returned to work.
Plaintiff did not subsequently request additional accommodations. However,
Plaintiff did provide Defendant with two subsequent doctor’s notes with weight
restrictions of 10 pounds or less. Defendant did not communicate with Plaintiff
regarding her weight restrictions after the initial meeting. Where the blame
for the interactive process’s deterioration lies is a question of fact that
could reasonably be decided either way by a jury.
The Court therefore denies summary adjudication 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.)
Defendant argues that this claim fails because Plaintiff was
terminated for pushing a coworker. As discussed under Plaintiff’s first claim,
Plaintiff has provided evidence that could allow a trier of fact to determine
that Defendant’s reason was pretextual.
The Court denies summary adjudication 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.)
Defendant argues that this claim fails because Plaintiff was
terminated for pushing a coworker. As discussed under Plaintiff’s first claim,
Plaintiff has provided evidence that could allow a trier of fact to determine
that Defendant’s reason was pretextual.
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.)
“Punitive damages are appropriate if the
defendant's acts are reprehensible, fraudulent or in blatant violation of law
or policy.” (Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co.
(1986) 185 Cal.App.3d 1149, 1154.)
“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).)
“[O]n a motion for summary adjudication with respect to a
punitive damages claim, the higher evidentiary standard applies. If the
plaintiff is going to prevail on a punitive damages claim, he or she can only
do so by establishing malice, oppression or fraud by clear and convincing
evidence. Thus, any evidence submitted in response to a motion for summary
adjudication must necessarily meet that standard.” (Basich v. Allstate Ins.
Co. (2001) 87 Cal.App.4th 1112, 1121.)
Plaintiff contends that Defendant’s termination of Plaintiff
and failure to adhere to the restrictions in her doctor’s note were in blatant
violation of law and policy, and therefore warrant punitive damages. Plaintiff
contends that Barritt ratified and engaged in the wrongful conduct and was a
managing agent as the Laboratory Director.
Defendant has carried its initial burden to show that
Plaintiff cannot provide clear and convincing evidence of oppression, malice,
fraud, or blatant disregard of the law. Defendant did attempt to accommodate
Plaintiff, and both parties subsequently did not communicate especially clearly
regarding accommodations. When Defendant terminated Plaintiff, it did so for
the facial reason that Plaintiff had pushed a coworker in an IVF laboratory.
While the Court finds triable issues as to whether this reason was pretextual,
Plaintiff has not presented clear and convincing evidence that it was
pretextual, let alone in blatant disregard of the law. The same is true for
oppression, malice, and fraud.
The Court therefore grants summary adjudication on
Plaintiff’s claim for punitive damages.