Judge: Kevin C. Brazile, Case: 22STCV32792, Date: 2023-11-29 Tentative Ruling

Hearing Date: February 15, 2024

Case Name: Hollis v. Cedars-Sinai Medical Center, et al.

Case No.: 22STCV07425

Matter: Motion for Summary Judgment/Adjudication

Moving Party: Defendant Cedars-Sinai Medical Center

Responding Party: Plaintiff Lisa Hollis

Notice: OK

Ruling: The Motion for Summary Adjudication is granted as to the seventh 

cause of action, but is otherwise denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is an employment action.  On March 1, 2022, Plaintiff Lisa Hollis filed the operative Complaint against Defendant Cedars-Sinai Medical Center for (1) FEHA disability discrimination, (2) FEHA failure to provide accommodations, (3) FEHA failure to engage in the interactive process, (4) FEHA failure to prevent discrimination, (5) FEHA retaliation, (6) “wrongful failure to promote”, (7) violation of Lab. Code § 6401, (8) violation of Lab. Code §§ 6310-6311, (9) age discrimination, and (10) wrongful termination.   

Defendant now seeks summary judgment or, alternatively, summary adjudication of all causes of action. 

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  In reviewing a motion for summary judgment or adjudication, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)  The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue, in which case the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue.  (Code Civ. Proc. § 437c(p)(2).)  To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto.  (Aguilar, at p. 849.)  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.)

1. Disability and Age Discrimination

Defendant argues that the claims for discrimination fail because there is no evidence of discriminatory motive and there was a legitimate reason for Plaintiff’s discharge: due to budget cutting needs during the pandemic, Plaintiff’s employment as a photographer was terminated and no person was hired to replace her; instead, a photo booth device is being used with the help of a graphic designer.  Defendant also contends that Plaintiff never applied for any promotion and the two others that were promoted had different duties. 

To analyze claims of discrimination under the FEHA based on a theory of disparate treatment, courts employ a three-step, burden-shifting test.  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-355 (“Guz”).)  Because evidence of intentional discrimination is rare, the law permits the inference of discrimination based on facts that create “a reasonable likelihood of bias and are not satisfactorily explained.”  (Id. at p. 354.)  The tiered approach assists the Court in identifying such facts.  The approach proceeds as follows:  Once the plaintiff establishes a prima facie case of discrimination, a presumption of discrimination arises.  The burden then shifts to the employer to dispel the presumption by producing admissible evidence that its action was taken for a legitimate, nondiscriminatory reason.  Finally, the burden shifts back to the plaintiff, who then has the opportunity to attack the employer’s proffered reason as pretext for discrimination, or to offer other evidence of discriminatory motive.  (Id. at pp. 355-356.)

Under the FEHA, a prima facie case of discrimination generally consists of the following elements: (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in the position he or she held, (3) the plaintiff suffered an adverse employment action, and (4) some other circumstance suggesting discriminatory motive.  (Guz, supra, 24 Cal.4th at p. 355.)

With respect to motions for summary judgment, “ ‘the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ ”  (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.)  “If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’ ”  (Ibid.)

Plaintiff has shown a prima facie case in that there is some evidence that she was initially given accommodations for her arthritis in the form of a 4-day, 10 hour per day schedule; after she was out on medical leave for an arthritis flare-up, a younger, non-disabled, and less experienced employee, Rachael Porter, was hired to take over some of Plaintiff’s duties; Plaintiff was told she had to work less hours and take a 20% pay reduction when her prior schedule had not been an issue; Porter was promoted over Plaintiff; and Plaintiff was then terminated.

Defendant points to the facts that the photo booth was cheaper, so Defendant could have more resources for other matters, like hiring a graphic designer; the booth was better for COVID-19 issues; and the booth allowed for more flexible photo scheduling for employees that worked very early or late.

The value of the photo booth, however, is not clear because Plaintiff’s supervisor, Featherston, states in his declaration that the booth was purchased for only $24,000, but in his deposition he stated the booth was under lease.  

Plaintiff also presents evidence that she could have worked as a graphic designer based on her actual experience working with Defendant for years, including supervising graphic designers, and that she was never considered for the subsequent position.  

Defendant also contends that Porter had different duties, but it is not clear that these different duties were a requisite for the senior position, which was one position above Plaintiff’s role.  Also, Plaintiff was a salaried employee while Porter was a newly hired per diem employee.

Further, to the extent it’s undisputed that Plaintiff had complained of the photo conditions being non-ideal for COVID-19, it’s hard to see how the booth’s suitability for COVID-19 can be justified as a legitimate reason for terminating Plaintiff.  

Triable issues remain.  The Motion is denied as to Plaintiff’s discrimination claims.

2. Failure to Prevent Discrimination

The Motion is denied as to the derivative claim for failure to prevent discrimination in light of the discrimination claims surviving.

3. Retaliation & Failure to Promote

Courts employ the same burden-shifting approach to analyze claims of retaliation under the FEHA.  (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)  Thus, the plaintiff has the initial burden to establish a prima facie case by showing (1) he or she engaged in 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.  (Ibid.)  Once the employee establishes the prima facie case, the burden shifts to the employer, who must present a legitimate, nonretaliatory reason for the adverse employment action.  (Ibid.)  If the employer carries this burden, the court no longer presumes retaliation, and the burden shifts back to the employee to prove intentional retaliation.  (Ibid.)

Here, most of the facts presented above for the discrimination claims apply equally to the claims for retaliation and failure to promote in relation to Porter.  With respect to retaliation, the protected activity would be the leave taken by Plaintiff for her arthritis and causation can be shown by the chain of events discussed above.

The Motion is denied as to the claims for retaliation and failure to promote.

4. Reasonable Accommodations & Interactive Process

The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability.  (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.)  

“The ‘interactive process' required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not necessarily required.”  (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1013.)

Here, there are triable issues for the subject claims given that Plaintiff was forced to take a reduced schedule and an accompanying pay cut when she simply requested to rearrange a 40-hour schedule.  It’s not apparent why this accommodation could not be provided as it was in the past. 

5. Wrongful Termination

The wrongful termination claim survives to the same extent as the discrimination and retaliation claims.

6. Lab. Code § 6401

Lab. Code § 6401 states, “Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.”

The Motion for Summary Adjudication is granted as to the seventh cause of action for violation of Lab. Code § 6401 because there is no private right of action under this section.  (See Stiefel v. Bechtel Corp. (S.D. Cal. 2007) 497 F. Supp. 2d 1138, 1152.)

7. Lab. Code §§ 6310-6311

Lab Code § 6310(a) states, “No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: (1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, their employer, or their representative. . . .”

Lab. Code § 6311 states, “No employee shall be laid off or discharged for refusing to perform work in the performance of which this code, including Section 6400, any occupational safety or health standard, or any safety order of the division or standards board will be violated, where the violation would create a real and apparent hazard to the employee or their fellow employees. . . .” 

The Motion is denied as to the eighth cause of action because there is some minimal evidence that Plaintiff’s termination could have been motivated by her complaint as to COVID-19 protocols in that Featherston might have ridiculed Plaintiff over her survey complaint during a team meeting.  (Lab. Code § 6310.)

8.  Summary 

In sum, the Motion for Summary Adjudication is granted as to the seventh cause of action, but is otherwise denied.  The objections are overruled.  

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.