Judge: Kristin S. Escalante , Case: 19STCV16422, Date: 2023-06-22 Tentative Ruling
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Case Number: 19STCV16422 Hearing Date: June 22, 2023 Dept: 24
NATURE OF PROCEEDINGS: Hearing on Motion for Summary
Judgment or, in the alternative, Summary Adjudication of Issues
The
above-captioned matters are called for hearing.
The Court has
read the moving and opposing papers in the above-captioned motions and
announces its tentative rulings in open Court.
The Motion for Summary Judgment or, in the alternative,
Summary Adjudication of Issues ID: 852610059766 filed by Defendant Children’s
Hospital of Los Angeles on 03/17/2023 is DENIED.
Defendant Children’s Hospital of Los Angeles motion for
summary judgment is denied. Defendant’s motion for summary adjudication of
issue twenty-two is GRANTED. In all other respects the motion for
summary adjudication of the issues is denied.
Defendant Children’s Hospital of Los Angeles (“Defendant”)
moves for summary judgment or in on the complaint filed by Plaintiff Diana
Lalani (“Plaintiff”). Alternatively, Defendant moves for summary adjudication as
to the first (employment discrimination) [issue numbers 1-5]; second (failure
to accommodate) [issue numbers 6, 7]; third (failure to engage in the
interactive process) [issue numbers 8, 9]; fourth (retaliation) [issue numbers
10, 11, 12]; fifth (violation of CFRA) [issue number 13]; sixth (harassment)
[issue numbers 14, 15]; seventh (failure to prevent or remedy discrimination)
[issue numbers 16, 17]; eighth (wrongful discharge) [issue number 18]; ninth (whistleblower
retaliation) [issue numbers 19, 20, 21]; tenth (breach of express and implied
contract) [issue number 22]; eleventh (defamation) [issue number 23]; and
twelfth (intentional infliction of emotional distress) [issue numbers 24, 25]
causes of action; and Plaintiff’s claim for punitive damages [issue numbers 26,
27]. (Notice of Mtn., at pp. 2-5.)
Defendant’s 3/17/2023 request for judicial notice is denied as unnecessary. (See Evid. Code, §452)
Plaintiff’s 06/09/2023 objections are sustained as to 25, 26, 29, 30, 41, 42, 43, 44, in all other respects the objections are overruled.
The court notes both parties have filed unacceptably long and oppressive separate statements which strain the ability to be of use to anyone given their girth. The court would have been justified in taking this motion off-calendar and requiring the parties to re-submit their papers in conformity with the rules and caselaw. Instead, the court has examined the documents but further admonishes the parties for failing to provide meaningful and concise citations to the record to aid the court in an effective and timely review of their moving papers. Plaintiff’s objection to Defendant’s separate statement of 823 pages is well taken, yet Plaintiff herself filed 18 volumes of a separate statement amounting to a 5355 page long separate statement. The purpose of the separate statement is to “permit the trial court to expeditiously review complex motions for summary adjudication and summary judgment to determine quickly and effectively whether material facts are undisputed.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 251) The parties’ separate statements were calculated to do the opposite.
“The function of the pleadings in a motion for summary
judgment is to delimit the scope of the issues: the function of the affidavits
or declarations is to disclose whether there is any triable issue of fact
within the issues delimited by the pleadings.” (FPI Development, Inc. v.
Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Accordingly, the court provides
a brief background of Plaintiff’s complaint.
On May 10, 2019, Plaintiff filed her operative complaint
alleging various employment causes of action based on her time working for
Defendant. Plaintiff is a 54-year-old Hispanic woman who worked for Defendant
from April 1994 through May 2018. (Compl., ¶¶1, 27) Plaintiff was an excellent
employee throughout her tenure as demonstrated by her many promotions and pay
raises. (Compl., ¶¶10-11.) In February 2017, Plaintiff’s job title changed, and
Defendant assigned her to support Dr. Guy Young (“Young”). (Compl., ¶12) As
part of the change, Defendant informed her that Plaintiff would be relieved of
certain responsibilities as new responsibilities were added and she would have
a dedicated training for the new role. (Compl., ¶12.) However, neither the
training nor the relief from excess duties actually occurred. (Compl., ¶¶12,13.)
In the summer of 2017, Plaintiff spoke with manager Amanda
Zink (“Zink”) regarding some of the difficulties of working with Young and the amount
of work she was required to complete. (Compl., ¶¶13, 14) As a result, Zink told
Plaintiff her work was being reduced to make the workload manageable; however,
this directive was almost immediately reversed. (Compl., ¶14.) Later in the
summer, Defendant assigned Plaintiff to a new office. Plaintiff needed
assistance moving due to a pain in her back and shoulder, but Defendant did not
provide help forcing Plaintiff to move her office without assistance
exacerbating her injuries. (Compl., ¶17.) Eventually, after much emailing to
Zink, Defendants ordered an ergonomic evaluation of Plaintiff’s workstation,
but the evaluation never took place. (Compl., ¶17.)
In the fall of 2017, Plaintiff had multiple discussion with
Zink and Sylvia Estefan (“Estefan”) regarding workflow; however, Zink was
unable to provide any meaningful assistance on improving the situation given
her inexperience. (Compl., ¶¶18-20.)
Separately, in her role as an administrative assistant to Young, Plaintiff tried to follow her directives to properly calendar events and expenses. However, Young deemed the questions an inappropriate foray into his private life. (Compl., ¶22.) Shortly thereafter Defendant issued Plaintiff the first Performance Improvement Plan (“PIP”) she received in her career with Defendant. (Compl., ¶23) Not long after, she took a medical leave of absence, but returned prematurely out of fear of retaliation for taking leave. (Compl., ¶25.) When she returned, Young relayed that he no longer wanted to work with her. And was looking for a Temp to replace her. Zink refused to remove Plaintiff’s PIP. Finally, on May 11, 2018, Zink told Plaintiff that Defendant was terminating her employment. (Compl., ¶¶26-35)
1. First Cause of Action for
Employment Discrimination [Issue Numbers 1-5]
Under the FEHA, it is an “unlawful employment practice ‘[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [Government Code section 12940] or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 90-91.) An employee claiming discrimination under the FEHA must ultimately prove, by direct or circumstantial evidence, that the adverse employment action was taken because of the employee’s protected characteristic. However, since direct evidence is seldom available, California courts utilize the McDonnel Douglas burden-shifting analysis. (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 354 [age discrimination]; Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 998, abrogated on other grounds in Guz, supra, 24 Cal.4th at p. 351 [disability discrimination]; Department of Corrections & Rehabilitation v. State Personnel Bd. (2022) 74 Cal.App.5th 908 [age, race, and gender discrimination].)
Under the framework, the plaintiff holds “the initial burden to establish a prima facie case of discrimination. . .While the plaintiff's prima facie burden is not onerous, [they] must at least show actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a prohibited discriminatory criterion . . .Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Id. at p. 354-55 [internal quotations, brackets, and citations omitted].) If Plaintiff establishes a prima facie case, a presumption of discrimination arises. (Id. at p. 355.)
The burden then shifts to the employer “to rebut the presumption by producing admissible evidence, sufficient to raise a genuine issue of fact and to justify a judgment for the employer, that its action was taken for a legitimate, nondiscriminatory reason. If the employer sustains this burden, the presumption of discrimination disappears.” (Id. at pp. 355-56 [internal quotations, citations, and brackets omitted].)
At that time, the burden shifts back to plaintiff and plaintiff has the “opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.” (Id. at p 356 [internal citations omitted].)
a. Competent performance
Defendant first argues that Plaintiff will be unable to show she could do her job competently and thus, cannot invoke a discrimination claim under FEHA. Defendant cites to Plaintiff’s testimony. The court’s review of the cited testimony demonstrates that Plaintiff testified that Young was exceedingly difficult to work with; that as a human being Plaintiff may have made mistakes with respect to Young’s calendar, but such mistakes were “not to the degree of what they were claiming and not to a degree where I had to be fired”; and that Plaintiff had a meeting where she articulated that Young was difficult to work with and her new workload was very heavy. (Matthew Morris Decl., ¶3, Ex. A [“Plf. Depo.”] at pp. 57:25-59:23, 155:05-57:14.) The testimony also shows that Plaintiff stated that Zink’s PIP about her performance and Young’s statements about her were entirely untrue. (Plf. Depo., at pp. 43:18-45:18, 53:21-56:01.)
As a preliminary manner, Defendant’s testimony is insufficient to meet its burden that Plaintiff cannot prove she competently preformed her job. First, the testimony does not demonstrate a concession that Plaintiff was incompetent. An admission that an individual is difficult to work with or that a workload is very heavy is not equivalent to an admission that an individual is incompetent at their job. Second, the testimony provided also highlights that Plaintiff disputed the reasons for her termination and the allegations of her purported incompetence. And third, Defendant’s evidence does not show that Plaintiff cannot meet her burden of proof. A moving defendant may satisfy the initial burden to show that one or more elements cannot be established by “presenting evidence that conclusively negates an element of the plaintiff's cause of action or by relying on the plaintiff's factually devoid discovery responses to show that the plaintiff does not possess, and cannot reasonably obtain, evidence to establish that element.” (Schmidt, supra, 28 Cal.App.5th at p. 1119.) “The defendant must present evidence, typically in the form of factually devoid discovery responses, showing that plaintiff does not have and cannot obtain evidence to support his or her claim.” (Gaggero, supra, 108 Cal.App.4th at p. 891.) Defendant has not demonstrated an absence of evidence. Accordingly, the burden does not shift to Plaintiff.
Assuming arguendo, Defendant had met its burden,
Plaintiff presents evidence that she was performing competently at her job
raising a genuine dispute of material fact. Plaintiff submits the declaration
of Rosa Lopez, Plaintiff’s former direct supervisor. (Declaration of Rosa Lopez
[“Lopez Decl.”], ¶5.)
Lopez declares “During my time working with Lalani, I personally observed her
to be competent, caring, compassionate, diligent, hardworking, timely,
adaptable, collegial, respectful, and honest. At no point during my time
working with Lalani did I observe any type of performance issues, much less
performance issues necessitating disciplinary action. At no point in my
supervision of Lalani, did anyone talk to me about any perceived issues with
Lalani’s performance, including Young or any nurse practitioners.” (Lopez Decl., ¶7.) Lopez worked with Plaintiff from 2011 until her termination in July 2017. (Lopez Decl., ¶¶2, 6.) Lopez supervised Plaintiff during her transition to a new position and found that Plaintiff “competently and effectively executed her new position considering the resources that Defendant made available to her. Young had a known reputation for being difficult to work with, but his former administrative assistants did not face significant discipline, if any.” (Lopez Decl., ¶9.) While Lopez was not Plaintiff’s supervisor for the entire period, her declaration coupled with Defendant’s showing are sufficient to deny summary adjudication of issue one.
b. Evidence of race/disability/age discrimination
Next, Defendant argues Plaintiff cannot make a discrimination claim under FEHA because she cannot demonstrate Defendant held a discriminatory motive based on age, race, or disability.
As to age, Defendant states that “Plaintiff has no evidence whatsoever that her age motivated CHLA’s decision to terminate her.” (Motion for Summary Judgment (“MSJ”), at p. 17:18-19.) However, Defendant does not cite any evidence supporting that Plaintiff cannot obtain evidence. “The defendant must present evidence, typically in the form of factually devoid discovery responses, showing that plaintiff does not have and cannot obtain evidence to support his or her claim.” (Gaggero, supra, 108 Cal.App.4th at p. 891.) Defendant has made an insufficient showing.
As to disability, Defendant argues the facts belie Plaintiff’s argument it terminated her for seeking an accommodation for a workplace injury and/or because she requested leave. Defendant’s argument relies primarily on timing, e.g., Plaintiff’s alleged injuries and requested leaves coincide with her formal reprimand suggesting that Plaintiff raised the injuries in a preemptive strike to escape discipline. However, again, this does not a show that Plaintiff cannot obtain evidence that Defendant acted against Plaintiff because of her disability or perceived disability.
Defendant also argues that Plaintiff does not have a qualifying disability. Defendant argues she lacks a qualifying disability because Plaintiff’s doctor cleared to return to work immediately after the injury. Additionally, Defendant argues a mild pain does not always establish a disability. (MSJ, at p. 19:21-03:04.) However, FEHA requires only a “limitation,” not a substantial limitation, on a major life activity; accordingly, individuals with short-term or temporary conditions may qualify for protection under the FEHA. (See Ross v. Cnty. of Riverside (2019) 36 Cal.App.5th 580, 595) “Working is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments.” (Id. at p. 594 [internal quotations and brackets omitted].)
Here, Defendant has not demonstrated that Plaintiff does not have a qualifying disability or that she cannot establish she had a qualifying disability. Defendant’s arguments implicitly rely on circumspect timing to suggest that Plaintiff’s alleged disability was feigned for the purpose of preventing further disciplinary action. This is an issue that turns on question of fact and credibility which only the trier of fact can decide. Again, Defendant has not a sufficient showing for summary judgment.
As to race, Defendant tacitly admits that Plaintiff has evidence of race discrimination, but argues the evidence is insufficient. (MSJ, at pp. 18:05-08 [“her only evidence of this animus is (1) a speculative conversation with her former supervisor, a disgruntled former employee whose own position was eliminated after a RIF and who is also suing CHLA, and (2) Plaintiff’s allegation that four other minority employees were also terminated.”].) The court does not weigh the evidence at the summary judgment stage. This is not for standard for summary judgment. On a motion for summary judgment “doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.” (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 372). Summary judgment is appropriate only where the opponent has no case at all, not merely a weak case. (See, 24 Hour Fitness, Inc. v. Sup. Ct. (1998) 66 Cal.App.4th 1199, 1215, fn. 12 [finding summary judgment appropriate where defendants establish an affirmative defense as to all claims against them].)
Accordingly, summary adjudication is denied as to issues two, three, and four.
c. Pretext
Finally, Defendant argues Plaintiff cannot prove any of the reasons for termination are pretextual because Plaintiff’s only evidence amounts to improper conjecture and speculation. This is a tacit admission that there is evidence supporting Plaintiff’s cause of action. Nevertheless, Defendant argues Plaintiff’s testimony that she believed Defendant was forcing her out of her position is merely speculative and that the evidence supports that Young found Plaintiff’s performance subpar. (Morris Decl., ¶4, Ex. B [“Young Depo.”], at pp. 73:12-74:18 [issues with PowerPoint], 89:19-90:24 [issues with scheduling]; 91:25-08 [issues with scheduling].) Defendant also cites Plaintiff’s testimony that she found the position challenging and after the PIP she attempted to take the recommended courses but was unable to do so. For these reasons, Defendant concludes that it had valid reasons for terminating Plaintiff. (Plf. Depo., at pp. 92:07-03:03; 155:05-56:14.)
The court finds Defendant’s showing insufficient. First, Defendant has not shown Plaintiff cannot obtain evidence. Second, Plaintiff also testified that Zink’s PIP about her performance and Young’s statements about her were entirely untrue. (Plf. Depo., at pp. 43:18-45:18, 53:21-56:01.) This is not improper conjecture, but an articulatable reason for why she believes Defendant’s proffered reasons were pretextual. A jury could well find it believes Plaintiff’s account over Defendant’s account. The question turns on the weight a trier of fact will give to conflicting evidence. This is not the situation where Plaintiff has no evidence to support pretext and Defendant’s conclusory showing is insufficient to demonstrate that Plaintiff cannot obtain any evidence of pretext.
Accordingly, the court does not address Plaintiff’s rebuttal evidence of pretext.
The motion for summary adjudication of issue five is denied.
2. Second Cause of Action
for Failure to Accommodate [Issue Numbers 6, 7]
Defendant argues Plaintiff cannot prevail on her failure to accommodate claim because (i) Plaintiff was not a qualified individual with a disability, and (ii) Defendant provided Plaintiff with reasonable accommodations during the relevant time period. (Notice of Mtn., at p. 3.)
As laid out in the complaint, at some point Defendant assigned Plaintiff to a new office. Plaintiff needed assistance moving due to a pain in her back and shoulder, but Defendant did not provide sufficient help which forced Plaintiff to move her office without assistance and exacerbated her injuries. (Compl., ¶17.) Eventually, after much emailing to Zink, Defendant ordered an ergonomic evaluation of Plaintiff’s workstation, but the evaluation never took place. (Compl., ¶17.)
FEHA provides coverage for a disability that limits a major life activity. The disability need only cause a “limitation,” not a substantial limitation, on a major life activity; accordingly, individuals with short-term or temporary conditions may qualify for protection under the FEHA. (See Ross, supra, 36 Cal.App.5th at p. 595) However, mild conditions are not disability under FEHA. (2 Code Reg., § 11065, subd. (d)(9)(B) [excluding conditions “which do not limit a major life activity, as determined on a case-by-case basis. . .. such as the common cold; seasonal or common influenza, minor cuts, sprains, muscle aches, soreness, bruises, or abrasions . . .”].) “Working is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments.” (Ross, supra, 36 Cal.App.5th at p. 594 [internal quotations and brackets omitted]; see also Gov. Code, § 12926.1, subd. (c).)
Defendant argues Plaintiff’s pain was not a qualifying disability because Plaintiff has offered no evidence that her alleged pain hindered her ability to do her job. (MSJ., at p. 19:21-25.) Defendant does not cite something akin to factually devoid discovery responses regarding Plaintiff’s inability to prove she suffered a disability. This is a deficient showing. Nevertheless, even assuming, Defendant had established Plaintiff was not a qualified individual, Plaintiff presents rebuttal evidence that she had a qualifying disability. She provides her own declaration stating “[a]s a result of the workplace injury, I had ongoing pain and straining in my shoulder, upper-back, and neck. This ongoing pain and straining made it more difficult to complete the functions of my job, including reaching, lifting, and twisting my arms, shoulder, upper back, and neck.” (Declaration of Diana Lalani [“Lalani Decl”], ¶17.) Accordingly, summary adjudication of issue six is denied.
As to the accommodations, Plaintiff alleged that she requested an ergonomic evaluation, but Defendant never provided it. (Compl., ¶17.) She also requested time off regarding helping her husband through some treatment, and time off for her own anxiety related to work. (Compl., ¶¶25, 28, 29) Defendant provided the time off with respect to caring for her husband after questioning Plaintiff. (Compl., ¶28.) Defendant also provided the time of for anxiety, but Plaintiff returned prematurely out of fear of retaliation. (Compl., ¶25.)
Defendant argues this cause of action cannot stand because Defendant provided reasonable accommodations to Plaintiff in the form of always granting her requests for a leave of absence. (MSJ, at p. 20:05-12 [citing Plf Depo., at pp. 108:19-109:03].) Preliminarily, as laid out in the complaint, Plaintiff’s claims for accommodation go beyond just the request for a leave of absence. Plaintiff alleged she requested accommodations for transferring offices, for an ergonomic assessment, and for time off. Even if Defendant provided the time off requests, that evidence is not dispositive of whether Plaintiff can establish Defendant did not provide other necessary accommodations or whether Defendant provided the accommodations in a timely manner. (See Gov. Code, § 12940 [requiring “timely” engagement in the interactive process to determine an effective reasonable accommodation].) Defendant’s showing is inadequate and the motion for summary adjudication of issue seven is denied.
Accordingly, the motion for summary adjudication as to the second cause of action is denied.
3. Third Cause of Action for Failure to Engage In The Interactive Process [Issue Numbers 8, 9]
Defendant argues Plaintiff cannot prevail on her failure to engage in the interactive process claim because (i) Plaintiff was not a qualified individual with a disability, and (ii) Defendant provided Plaintiff with reasonable accommodations during the relevant period. (Notice of Mtn., at p. 3.) The court incorporates by reference its prior discussion as to whether Plaintiff was a qualified individual with a disability and whether Defendant provided reasonable accommodations as laid out in its discussion of the second cause of action. For the reasons there stated, the motion for summary adjudication as to the third cause of action and issues numbers eight and nine is denied.
4. Fourth Cause of Action for Retaliation [Issue Numbers 10, 11, 12]
Defendant argues Plaintiff cannot prevail on her retaliation claim because (i) Plaintiff did not engage in a protected activity, (ii) there is no causal link between any alleged protective activity and any adverse employment action, and (iii) Plaintiff cannot establish Defendant’s reason for termination was pretextual. (Notice of Mtn., at pp. 3-4.)
To prove retaliation under FEHA, a plaintiff must show that “(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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
As to protected activity, Defendant frames Plaintiff’s alleged protective activity as her complaints that the work level was heavy, and that Young was difficult to work with. Plaintiff, on the other hand, categorized her protected activity as “complaints of discrimination to management and HR when she received a PIP and further harassment after the fact. Plaintiff also gave notice of disabilities and requested reasonable accommodation in the form of intermittent leave and modification to her workstation.” (Compl., ¶71.) Defendant does not address these allegations of complaints of discrimination and presents no evidence showing that Plaintiff will be unable to show she made a complaint of discrimination regarding the PIP and further harassment. (See Schmidt, supra, 28 Cal.App.5th at p. 1119; Gaggero, supra, 108 Cal.App.4th at p. 891.)
Defendant also argues Plaintiff’s reasonable accommodations requests is not protected activity as Plaintiff was not disabled within the meaning of FEHA. The court incorporates by reference its prior discussion as to whether Defendant has established Plaintiff did not have a qualified disability. Additionally, Defendant does not present sufficient evidence to show that the circumstances surrounding Plaintiff’s requests for accommodation would not constitute protected activity. The court notes, “[n]otifying one’s employer of one’s medical status, even if such medical status constitutes a ‘disability’ under FEHA, does not fall within the protected activity identified in subdivision (h) of section 12940—i.e., it does not constitute engaging in opposition to any practices forbidden under FEHA or the filing of a complaint, testifying, or assisting in any proceeding under FEHA.” (Moore v. Regents of Univ. of California (2016) 248 Cal.App.4th 216, 247.) But without further clarification regarding why the circumstances surrounding requested accommodations could not be discriminatory, the court finds Defendant has not met its initial burden as to issue ten.
As to a causal link, Defendant argues the allegedly protected activity occurred after Plaintiff’s performance issues were documented and therefore, the timing does not support retaliation. This argument presumes that the only adverse action taken was the issuance of the PIP. However, it is unlawful for an employer to “discharge, expel or otherwise discriminate” against an employee for engaging in a protected right. (Gov. Code, §12940, subd. (h).) Accordingly, Defendant’s termination, if unlawfully motivated can support a claim for retaliation. Defendant’s motion does not address the fact that if the adverse action is termination, then Plaintiff’s complaints after the PIP support a claim for retaliation.
Additionally, the evidence shows that Plaintiff made statements to Defendant regarding a lack of accommodation prior to the issuance of the PIP. Plaintiff testified that she understood Defendant’s treatment to stem from her request for accommodations, which took place prior to Defendant’s issuance of the PIP. (Plf. Depo., at pp. 28:19-29:18.) Defendant issued Plaintiff a PIP on February 8, 2018. (Lalani Decl., 81, Ex. 34 [“PIP”].) Prior to the PIP, in September 2017, Plaintiff’s office was changed. (Lalani Decl., ¶11.) Plaintiff needed assistance with the move but did not receive it. (Lalani Decl., ¶12.) Plaintiff emailed Zink shortly after the move stating that movers never arrived, and she had to move her boxes herself causing her injury. (Lalani Decl., ¶¶12, 14, Ex. 51.) After the move Plaintiff initiated an ergonomic evaluation with Estafan during which she disclosed her injury. (Lalani Decl., ¶19.) Defendant did not provide the ergonomic assessment until November or December of 2017. (Lalani Decl., ¶21.) Plaintiff never received the recommended ergonomic modifications despite reaching out to Zink. (Lalani Decl., ¶21.) Thus, to the extent Defendant has argued the timing does not support a causal link, the motion denied as to issue eleven.
As to pretext, the court incorporates it prior discussion from cause of action one regarding pretext and finds Defendant has not met its initial burden as to issue twelve.
Accordingly, the motion for summary adjudication as to the fourth cause of action is denied.
5. Fifth Cause of Action for Violation of CFRA [Issue Number 13]
Defendant argues Plaintiff cannot prevail on her violation of CFRA claim because there is no causal link between Plaintiff’s CFRA leave and any adverse employment action. (Notice of Mtn., at p. 4.)
“The elements of a cause of action for retaliation in violation of CFRA are: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA leave.” (Moore, supra, 248 Cal.App.4th 216, 248.)
Defendant argues there is no causal link between Plaintiff’s leave and the PIP due to the timing of events, and cites Artega v Brink’s, Inc., (2008) 163 Cal.App.4th 327. In Artega a former armored transport company employee brought a claim for disability discrimination and retaliation. He alleged defendant company terminated him in retaliation for filing a workers compensation claim related to his disability. The court affirmed the granting of summary judgment because plaintiff did not have a qualifying disablility, and defendant had a legitimate nondiscriminatory reason for termination—management lost confidence in him due to shortages from machines plaintiff serviced. (Id. at p. 341, 352.)
That court noted that the timing of the termination alone—within days of the workers compensation claim—was insufficient to create a triable issue as to pretext. (Id. at p. 341.) The court stated “[a]lthough temporal proximity, by itself, may be sufficient to establish a prima facie case of discrimination or retaliation, it does not create a triable fact as to pretext once the employer has offered evidence of a legitimate, nonprohibited reason for its action. This is especially so where the employer raised questions about the employee’s performance before he engaged in protected activity, and the subsequent discharge was based on those performance issues.” (Id. at p. 334.)
Defendant provides Zink’s declaration in support of the fact that Plaintiff’s performance issues were noted prior to any complaints she made. Zink declares “I attempted to correct Plaintiff’s deficient performance, and on July 26, 2017, I formally coached Plaintiff about her job duties.” (Zink Decl., ¶3, Ex. A.) The notes from the discussion state that during the meeting Young “set his expectations with Diana as his support profession.” (Zink Decl., ¶3, Ex. A.) Based on this evidence, Defendant likens the case to Artega and states that Plaintiff cannot demonstrate pretext. However, Defendant, has only provided evidence supporting its version of the events transpired. Defendant has not established that there can be no material dispute and that Plaintiff lacks any evidence to demonstrate pretext, which does not shift the burden to Plaintiff.
Assuming, Defendant had presented sufficient evidence, Plaintiff rebuts Defendant’s showing. Plaintiff provides evidence showing that not only does the timing suggest pretext, but also Defendant’s deviation from its policies and the false statements in the PIP.
Plaintiff notes she was given exemplary performance reviews until shortly before her termination. (Lalani Decl., ¶¶ 3, 40.) The change in performance reviews occurred during the same period Plaintiff began making accommodation request. Plaintiff testified that she understood Defendant’s treatment to stem from her request for accommodations, which took place prior to Defendant’s issuance of the PIP. (Plf. Depo., at pp. 28:19-29:18.)
Plaintiff also presents evidence from Lopez attesting to Defendant’s policies and procedures for discipline. Notably Lopez was not Defendant’s PMK but testified as to this information based on her experience in her roles working for Defendant over approximately nine years. She declares Defendant had a progressive disciplinary policy which involved escalating discipline beginning with a verbal counseling, then written counseling, then final written counseling/suspension, and ending with termination with written notification. (Lopez Decl., ¶18.) As she understood it “performance issues should be documented at or around the time of the supposed issue arising, to the greatest extent possible.” (Lopez Decl., ¶18.) Defendants did not follow these procedures at all with respect to Plaintiff to notify her of the need for improvement. (Lalani Decl., ¶¶ 3,40.)
Finally, the original PIP stated Plaintiff was “unable to satisfactorily craft, edit, and proof documents, spreadsheets and presentations.” (Lalani Decl., ¶81, Ex. 34.) The revised PIP omitted that plaintiff was “unable to satisfactorily craft, edit, and proof documents, spreadsheets and presentations.” (Lalani Decl., ¶92, Ex. 45.) Plaintiff also refers the court to Zink’s testimony stating that after the PIP was revised if the bullet point was true, it would have remained in the revised PIP. (Deposition of Amanda Zink [“Zink Depo.”] at pp. 210:23-212:03.) The court’s review of the PIP and the revised PIP shows that the revised PIP also changed from Plaintiff being “unable” to do certain task to Plaintiff not doing those tasks “satisfactorily.” (Lalani Decl., ¶¶81, 92, Ex. 34, 45.)
Plaintiff’s evidence regarding the lack of warning of possible termination, Defendant’s use of inconsistent procedures for warning an employee about needing improvement, and the testimony about the changes in the PIP could create a reasonable inference that Defendant’s purported reasons for termination were pretextual.
Accordingly, the motion for summary adjudication of the fifth cause of action is denied.
6. Sixth Cause of Action for
Harassment [Issue Numbers 14, 15]
Defendant argues Plaintiff cannot prevail on her harassment claim because (i) any of the allegedly harassing behavior was not based on any protected classification of Plaintiff, and (ii) any allegedly harassing behavior was not severe or pervasive. (Notice of Mtn., at p. 4.)
To establish a claim of harassment under FEHA, Plaintiff must show “(1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Galvan v. Dameron Hosp. Assn. (2019) 37 Cal.App.5th 549, 563.) “Harassment[] [] may be verbal, physical, or visual and communicates an offensive message to the harassed employee.” (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 877.) It “cannot be occasional, isolated, sporadic, or trivial.” (Ibid.)
“The law prohibiting harassment is violated when 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.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263 [internal quotations and brackets omitted].) Whether this occurred is assessed “from the perspective of a reasonable person belonging to the [protected]. . . group of the plaintiff.” (Ibid.)
Plaintiff alleged Defendant “engaged in actions to harass Plaintiff because of her age, disability, race, or ancestry, and requests for accommodation.” (Compl., ¶85.) Defendant argues that Plaintiff cannot identify any comments about her age, race, or alleged disability. Accordingly, her harassment claim cannot stand. Defendant cites to Plaintiff’s deposition testimony that no one made any statements regarding Plaintiff’s disability leave. (Plf. Depo., at pp. 120:01-121:13.) Defendant’s evidence is lacking. Harassment can include verbal, physical, or visual messages to an employee. (Thompson, supra, 186 Cal.App.4th at p. 877) The fact that Plaintiff admits she cannot recall anyone making statements about her taking leave is not equivalent to Plaintiff having no evidence of harassment. Furthermore, Plaintiff’s admission about no comments regarding leave has no relevance to harassment based on age or disability.
As Defendant has not met its burden the court does not address Plaintiff’s argument that the “campaign of pretextual performance criticism” amounts to harassment. However, it is questionable whether Plaintiff will be able to demonstrate a sufficiently hostile work environment to succeed on a claim for harassment. Even so, since Defendant’s showing is insufficient, the motion is denied.
Summary adjudication of sixth cause of action is denied.
7. Seventh Cause of Action for Failure to Prevent or Remedy Discrimination [Issue Numbers 16, 17]
Defendant argues Plaintiff cannot prevail on her cause of action for failure to prevent or remedy discrimination because (i) Defendant took reasonable steps to prevent retaliation, and (ii) the cause of action is derivative from the first, second, fourth and sixth causes of action and fails with them. (Notice of Mtn., at p. 4.) In the moving papers Defendant argues the claim cannot proceed because Plaintiff never engaged in any protected activity. The court incorporates by reference its prior discussion of protected activity and finds Defendant has not satisfied its initial burden on this issue. Accordingly, summary adjudication of the seventh cause of action is denied.
8. Eighth Cause of Action for Wrongful Discharge [Issue Number 18]
Defendant argues Plaintiff cannot prevail on her cause of action for wrongful discharge because the cause of action is derivative from the first, second, fourth and sixth causes of action and fails with them. (Notice of Mtn., at p. 4.) As the court has not found summary adjudication appropriate for the first, second, fourth, and sixth causes of action, the wrongful discharge cause of action also survived. Summary adjudication of the eighth cause of action is denied.
9. Ninth Cause of Action for
Whistleblower Retaliation [Issue Numbers 19, 20, 21]
Defendant argues Plaintiff cannot prevail on her cause of action for whistleblower retaliation because (i) Plaintiff did not engage in a protected activity, (ii) there is no causal link between any alleged protective activity and any adverse employment action, and (iii) Plaintiff cannot establish Defendant’s reason for termination was pretextual. (Notice of Mtn., at pp. 4-5.) The court incorporates by reference its prior discussion as to whether Plaintiff states a claim for retaliation as laid out in the discussion of the fourth cause of action and finds Defendant has not met its burden. Accordingly, the motion for summary adjudication as to the ninth cause of action is denied.
10. Tenth Cause of Action for Breach of Express Oral and Implied Contract [Issue Number 22]
Plaintiff alleged that she and
defendant entered in to an “oral express and/or implied-in-fact agreement not
to terminate Plaintiff’s employment except for good cause.” (Compl., ¶104) Defendant
argues Plaintiff cannot prevail on her cause of action for breach of express
oral and implied contract because Plaintiff’s employment was at-will. (Notice
of Mtn., at p. 5.)
Defendant argues, such an alleged agreement is invalid where there is an express agreement for at-will employment. This is correct. There is a presumption of at-will employment in California if the “parties have made no express oral or written agreement specifying the length of employment or other grounds for termination.” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677.) Further, “[t]here cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results.” (Agosta v. Astor (2004) 120 Cal.App.4th 596, 604.) “[M]ost California cases have held that an at-will provision in an express written agreement, signed by an employee, cannot be overcome by proof of an implied contrary understanding.” (Ibid.)
Here, Defendant presents evidence that Plaintiff was an at-will employee, and included a signed Acknowledgement of Receipt confirming that Plaintiff “understand[s] and agree[s] my employment relationship at Children’s Hospital Los Angeles is and will remain at all times completely consensual and may be terminated by either the Hospital or me at any time and for any reason.”(See Plf. Depo., at p. 62:05-24; Declaration of Ronal Stoneburner [“Stoneburner Decl.”], ¶8, H.) Accordingly, Defendant has shown there is no genuine dispute as to whether there was a breach of an express oral agreement. Plaintiff offers no opposition. Accordingly, summary adjudication of cause of action ten and issue twenty-two is granted.
11. Eleventh Cause of Action
for Defamation [Issue Number 23]
Plaintiff alleged Zink, Maddison, and Young each made untrue, slanderous and defamatory statements of fact about Plaintiff including that she was incompetent, could not follow instructions, and could not satisfy the requirements of her job. (Compl., ¶107.) Defendant argues Plaintiff cannot prevail on her cause of action for defamation because any allegedly defamatory remark is subject to the common-interest privilege. (Notice of Mtn., at p. 5.)
“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. The defamatory statement must specifically refer to, or be of and concerning, the plaintiff.” (John Doe 2 v. Superior Ct. (2016) 1 Cal.App.5th 1300, 1312 [internal citations and quotations omitted].)
Defendant argues the alleged statements made fall within the common interest privilege. Where one person makes a statement to another about a matter in which they are both interested, the statement is privileged if made without malice. (Civ. Code, § 47, subd. (c); See also Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 723.) The privilege has been “determined to apply to statements by management and coworkers to other coworkers explaining why an employer disciplined an employee.” (McGrory v. Applied Signal Tech., Inc. (2013) 212 Cal.App.4th 1510, 1538.) The statements at issue, according to Plaintiff’s testimony, are all of Zink’s statements in the PIP about Plaintiff’s competency as to her job, (Plf. Depo., at pp. 43:18-44:16); Maddison’s statement to Plaintiff that she was incompetent, (Plf. Depo., at p. 44:20-24); and Young’s statements that Plaintiff was incompetent and emails discrediting Plaintiff’s skills. (Plf. Depo., at pp. 45:02-18.)
As to Zink’s statements in the PIP, the PIP by its very name appears to fall within the common interest privilege. It goes to an employer’s vested interest in “pursing its own economic interest and that of its employees to ascertain whether an employee has breached [their] responsibilities. . .[and] to communication, in good faith, that fact to others within its employ. . .” (McGrory, supra, 212 Cal.App.4th at p. 1538.) It is unclear whether Maddison made her statement in relation to Plaintiff’s performance or explaining discipline to Plaintiff. There is insufficient evidence to show that Maddison’s statements definitively fall within the common interest privilege to shift the burden to Plaintiff. The same problem exists regarding Young’s statements. It is unclear when, where, to whom, or under what circumstances he made the statements such that the common interest protects the statements. Defendants have not established Plaintiff cannot show that the statements will fall outside of the common interest privilege. Although Zink’s statements may fall under the common interest privilege, ultimately, Defendant has not shifted the burden as to the defamation cause of action for the alleged statements.
Assuming Defendant had, Plaintiff presents almost no rebuttal. Plaintiff states that she disputes that these are the only defamatory statements made. In reference to evidence, she cites every single exhibit she submitted in support of her motion, as well as exhibits submitted by Defendant and hundreds of different pages of deposition testimony. (Sept Stmt Opp., Vol 17, No. 83, at pp. 4907-4908.) She then provides in her declaration that she “reasonably believed that Defendant was spreading false statements about me, which I reasonably believed to be in violation of law, rule, and/or regulation, namely defamation.” (Lalani Decl., ¶45) Plaintiff has failed to point the court to any meaningful or particularized evidence of other defamatory statements. Further, Plaintiff offers no argument for why the statement falls out of the common interest privilege. The case for defamation appears limited.
Nevertheless, the motion for summary adjudication of cause of action eleven is denied.
12. Twelfth Cause of Action for Intentional Infliction of Emotional Distress (“IIED”) [Issue Numbers 24, 25]
Plaintiff alleges Defendant’s conduct as outlined in the entire complaint is “so extreme and outrageous that it exceeded the boundaries of a decent society and lies outside the compensation bargain.” (Compl., ¶120.) Defendant argues Plaintiff cannot prevail on her cause of action for IIED because (i) the alleged conduct was neither extreme nor outrageous, and (ii) the IIED claim is pre-empted by the California worker’s compensation act (the “Act”). (Notice of Mtn., at p. 5.)
To make a claim IIED, plaintiff
must show (1) defendant’s outrageous conduct; (2) intentional or reckless
causing of emotional distress; (3) severe emotional distress resulting from the
defendant’s conduct; and (4) causation. (Trerice v. Blue Cross of
California (1989) 209 Cal.App.3d 878, 883.) Conduct is outrageous if it is of
“such substantial quantity or enduring quality” that an individual in civilized
society should not be expected to endure it. (Angie M. v. Superior Court (1995)
37 Cal.App.4th 1217, 1227; see also Cochran v. Cochran (1998) 65 Cal
App.4th 488, 494 [stating
that the conduct must be “so outrageous in character,
and so extreme in degree, as to go beyond all bounds of decency, and to be
regarded as atrocious. . .”].)
Defendant argues, generally, personnel
actions cannot be used to state a claim for IIED and Plaintiff has no factual
support demonstrating the dispute here rises to anything beyond a personnel
decision. Defendant’s showing is deficient. Defendant has artificially narrowed
the issue of the IIED claim to a personnel action; however, the allegations and
evidence presented are considerably broader than a personnel decision. Defendant
does not attempt to show that Plaintiff cannot establish any evidence in
support of an IIED claim beyond a cursory sentence. This does not shift the
burden.
Defendant simply argues the claim is preempted
because it is premised on employer misconduct as part of the employment
relationship. However, Plaintiff’s complaint encompasses alleged conduct broader
than a criticism of work practices. Defendant’s narrow characterization without
more is insufficient to show Plaintiff’s claim is preempted. Defendant has not
cited any authority where a similar claim was subject to preemption on a motion
for summary judgment.
Finally, Defendant argues Plaintiff cannot prevail on her claim for punitive damages because (i) there are no facts supporting the existence of malice, fraud, or oppression, and (ii) Plaintiff cannot establish an officer, director or managing agent was involved in the challenged employment action. (Notice of Mtn., at pp. 5-6.)
Punitive damages are available in non-contract actions where a defendant is guilty of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (c)(1).) “A corporation is not deemed to ratify misconduct, and thus become liable for punitive damages, unless its officer, director, or managing agent actually knew about the misconduct and its malicious character. A ‘managing agent’ is an employee with authority to establish corporate policy, that is, the broad principles and rules of general application which govern corporate conduct.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 163.)
Defendant argues Plaintiff cannot identify a single act of malice, oppression or fraud taken against her by an officer based on Plaintiff’s testimony that she believed the people involved in her termination caused her harm. (Plf. Depo., at pp. 165:23-167:17.) At the time of the testimony, the only four people Plaintiff identified wanting to cause her harm were Zink, Young, Maddison and Melissa Metz (“Metz”). This showing is insufficient to establish that Plaintiff is categorically unable to demonstrate any evidence arising to the level of malice, fraud, and oppression. The citation is to narrow testimony on an issue of who Plaintiff believed intended to cause her harm. This does not establish that Plaintiff cannot prove malice, fraud or oppression by Defendant and its managing agents.
Defendant also argues Plaintiff cannot show Defendant’s decision to terminate her was made by a managing agent, such that Defendant is liable. As stated, “[m]anaging agents are employees who exercise substantial discretionary authority over decisions that ultimately determine corporate policy.” (Davis v. Kiewit Pac. Co. (2013) 220 Cal.App.4th 358, 366.) To establish an employee is a managing agent “a plaintiff seeking punitive damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporation's business.” (Ibid.) In support, Defendant presents Zink, Young, and Maddison declarations stating that they are not managing agents of Defendant. (Young Dec., ¶ 10; Maddison Dec., ¶ 9; Zink Dec., ¶ 15) This is sufficient to shift the burden to Plaintiff as to whether Sink, Young and Maddison were managing agents.
In rebuttal Plaintiff argues Maddison, Young, and Zink exerted significant discretionary authority regarding corporate policy. Plaintiff cites their deposition testimony in support. Zink testified that she was involved in hiring, firing, training, disciplining, promoting, scheduling, and addressing policy violations. (Zink Depo., at pp. 40:14-42:09, 45:24-46:06). Maddison testified she oversaw Defendant’s finance, budget, and administrative duties among others; she directly supervised up to twelve employees and indirectly supervised between 100 and 300 employees, (Deposition of Malika Maddison [“Maddison Depo.”], at pp. 25:18-26:03, 27:12-28:22.) Finally, Young testified that he does not “develop any policies” with the exception of an anticoagulation management policy, and that he provided feedback on employees’ performance (Young Depo., at pp. 29:15-30:02, 141:25-142:15.)
Here, the
combination of testimony regarding Maddison, Young, and Zink’s ability to
exercise authority for Defendant raises a genuine issue of material fact as to
whether Defendant is liable for punitive damages for their conduct.
Accordingly, the motion for summary adjudication on punitive damages is denied.
For the reasons
stated, summary judgment is DENIED; summary adjudication is granted as to issue
22, only.
Moving party is directed to give notice.