Judge: Lee W. Tsao, Case: 22NWCV00509, Date: 2023-08-24 Tentative Ruling
Case Number: 22NWCV00509 Hearing Date: August 24, 2023 Dept: C
ACEVEDO-COSIO v.
PIH HEALTH HOSPITAL WHITTIER
CASE NO.: 22NWCV00509
HEARING: 08/24/23
#9
Defendant PIH HEALTH
WHITTIER HOSPITAL’s Motion for Summary Judgment is DENIED. The alternative
Motion for Summary Adjudication is
GRANTED in part as to the first through fifth causes of action; and DENIED in
part as to the sixth cause of action.
Moving Party to give notice.
This wrongful termination action was filed by Plaintiff LILIA
ACEVEDO-COSIO (“Plaintiff”) on June 23, 2022.
Plaintiff was employed by Defendant PIH HEALTH WHITTIER
HOSPITAL (“Defendant” or “PIH”) as a nurse. (Complaint ¶7.) On or around
September of 2021, PIH established a COVID-19 policy requiring all employees to
be vaccinated against COVID-19 (the ‘Vaccine Mandate’). (Complaint ¶20.)
“Plaintiff is a lifelong Christian who believes that her body is a vessel for
the Holy Spirit of God, and that the forced injection of an unknown, untested,
experimental, and potentially harmful substance into her body is contrary to
the Christian mandate to treat the body like a ‘temple.’ Accordingly, Plaintiff
did not want to receive a COVID-19 vaccine. Hence, on August 18, 2021,
Plaintiff applied for a religious exemption to the COVID-19 vaccine (the
‘Religious Exemption’). (Complaint ¶22.) “The prospect of being forced to
inject the COVID-19 vaccination per the Vaccine Mandate, as well as the
pressure to get vaccinated which PIH constantly exerted, caused Plaintiff to
experience heart palpitations and anxiety attacks. As a direct result of the
stress that PIH caused Plaintiff, Plaintiff applied for and was granted medical
leave on August 19, 2021.” (Complaint ¶23.) “On or about August 23, 2021, PIH
sent Plaintiff an email stating that her Religious Exemption had been approved
with respect to vaccination, however, PIH still required Plaintiff to submit to
biweekly COVID-19 testing.” (Complaint ¶24.) Plaintiff was allegedly informed
that “[t]here were no exemptions offered for testing. None.” (Complaint ¶26.)
Plaintiff returned to work from medical leave on or about September 30, 2021.
(Complaint ¶30.) On her first day back, “Ms. Boyer asked Plaintiff repeatedly
whether Plaintiff had tested. Plaintiff requested that Ms. Boyer provide her
question in writing so that Plaintiff could respond in writing. Ms. Boyer
became enraged and started yelling at Plaintiff that she needed to answer the
question of whether Plaintiff had tested.” (Complaint ¶31.) “Plaintiff received
an email informing her that she was being put on unpaid administrative leave.”
(Complaint ¶22.) “On or about November 15, 2021, PIH terminated Plaintiff’s
employment.” (FAC ¶36.)
Plaintiff’s Complaint asserts the following causes of
action: (1) Discrimination in Violation of Gov’t Code §§12940, et seq.; (2)
Retaliation in Violation of Gov. Code §§12940 et seq.; (3) Failure to Prevent
Discrimination and Retaliation in Violation of Gov. Code §§12940(k); (4)
Wrongful Termination in Violation of Public Policy; (5) Declaratory Judgment;
and (6) Failure to Inspect Personnel and Payroll Records.
Defendant PIH HEALTH WHITTIER HOSPITAL (“Defendant” or “PIH”)
moves for summary judgment, or alternatively, summary adjudication of the
following issues:
·
As to Plaintiff’s First Cause of Action
o
Plaintiff’s first cause of action for religious
discrimination fails as a matter of law because Plaintiff cannot demonstrate
she suffered an adverse employment action;
o
Plaintiff’s first cause of action for religious
discrimination fails because Plaintiff cannot demonstrate that she could have
performed the essential job functions of her position without submitting to
COVID-19 testing and PIH could not accommodate her request to continue to work
in her position without testing because it would have been an undue burden on
PIH;
o
Plaintiff’s first cause of action for religious
discrimination fails as a matter of law because PIH fully engaged in an
interactive process with Plaintiff and she was provided reasonable
accommodations, which Plaintiff declined;
o
Plaintiff’s first cause of action for religious
discrimination fails because PIH had a legitimate, non-discriminatory reason
for the institution of its COVID-19 testing mandate and Plaintiff cannot
produce substantial responsive evidence demonstrating such reasons were
pretextual.
·
As to Plaintiff’s Second Cause of Action
o
Plaintiff’s second cause of action for
retaliation fails as a matter of law because Plaintiff cannot demonstrate that
she suffered an adverse employment action;
o
Plaintiff’s second cause of action for retaliation
fails as a matter of law because there is no causal link between any “protected
activity” and PIH’s decision to place her on administrative leave or deem that
Plaintiff was resigning from her position.
·
As to Plaintiff’s Third Cause of Action
o
Plaintiff’s third cause of action for failure to
prevent discrimination and retaliation fails as a matter of law because
Plaintiff cannot demonstrate that any discrimination or retaliation occurred.
·
As to Plaintiff’s Fourth Cause of Action
o
Plaintiff’s fourth cause of action for wrongful
termination in violation of public policy fails as a matter of law because she
was not subjected to any actionable discrimination or retaliation.
·
As to Plaintiff’s Fifth Cause of Action
o
Plaintiff’s fifth cause of action for
declaratory relief fails because Plaintiff is seeking redress for alleged past
wrongs and there is no present or probable future controversy between Plaintiff
and Defendant to warrant declaratory relief. In addition, Plaintiff was not
subjected to any actionable discrimination or retaliation.
·
As to Plaintiff’s Sixth Cause of Action
o
Plaintiff’s sixth cause of action for failure to
inspect personnel and payroll records because PIH produced the required
documents in a timely fashion.
·
As to Plaintiff’s Prayer for Punitive Damages
o
Plaintiff’s prayer for punitive damages fails as
a matter of law because Plaintiff cannot establish by clear and convincing
evidence that she was subjected to discrimination or retaliation and there is
no clear and convincing evidence of oppression, fraud or malice.
In Opposition, Plaintiff argues that summary
judgment/adjudication should be denied because there are a number of material
issues of disputed facts.
First Cause of Action – Religious Discrimination
To prove a claim of religious discrimination, Plaintiff has
the initial burden of making a prima facie showing of each of the following
elements: (1) she was a member of a protected class (based on “religious creed”);
(2) she was performing competently in the job she held; (3) she suffered an
adverse employment action, including but not necessarily limited to
termination; and (4) the circumstances suggest a discriminatory motivation for
the adverse employment action. (Guz v. Bechtel Nat., Inc. (2000) 24
Cal.4th 317, 355.)
Once Plaintiff makes a prima facie case, then a presumption
of religious discrimination arises, and the burden shifts to Defendant to rebut
the presumption by proving by a preponderance of the evidence that the adverse
employment action was not motivated by religious discrimination, but by a
legitimate business reason. (Id. at 355-356.) If Defendant makes that
showing, then the burden shifts back to Plaintiff to prove by a preponderance
of the evidence that the reason given by Defendant is a pretext for actual
discriminatory intent. (Id. at 356.)
Prima
Facie Showing of Discrimination
In support of its Motion, PIH argues that Plaintiff: (1) cannot
demonstrate that she suffered an adverse employment action because she was not
terminated; and (2) cannot demonstrate that could perform the essential
functions of her job. PIH relies on the following evidence to support its
arguments:
·
“Based on the fact that Plaintiff rejected the
accommodations provided to her and given there was no other fully-remote positions
for Plaintiff, PIH believed that it had no reasonable choice but to deem her as
having resigned from her position.” (SS No. 61.)
·
“On August 5, 2021, the CDPH issued a public
health order, which required all health facilities licensed by CDPH to implement
by September 20, 2021, a mandatory COVID vaccine program for all health care
workers, unless the employee qualified for a medical or religious exemption”
(SS No. 10.)
·
“Under the August 5, 2021, order, employees who
received a medical or religious exemption from the vaccine requirement were
still required to undergo regular COVID testing. The CDPH did not recognize any
exemption from the testing requirement either for medical or religious
reasons.” (SS No. 11.)
In Opposition, Plaintiff disputes that any legitimate
religious accommodation offer was made to her, and disputes that a fully-remote
position was the only option open to PIH. Plaintiff also maintains that she did
not resign. (Response to SS No. 61.) Moreover, Plaintiff objects to PIH’s
reliance on the CDPH (California Department of Public Health) public health
order as hearsay.
The Court finds that Plaintiff has raised triable issues as
to whether or not she suffered an “adverse employment action”—i.e., whether or
not Plaintiff was terminated at PIH’s sole discretion.
However, Plaintiff is unable to establish a prima facie case
of religious discrimination because she cannot demonstrate that she is able to
perform the essential duties of her position without endangering herself or
others. “The essential functions of a job are ‘the fundamental…duties of the
employment position the individual with a disability holds or desires,’ not
including ‘the marginal functions of the position.’ Cal. Gov. Code §12926(f)….
However, other relevant evidence that may be considered in determining the
essential functions of a job includes the actual work experience of current or
past employees in the job, the amount of time spent performing a function, and
the consequences of not requiring that an employee perform a function. [Citations Omitted.]”
(Bezzina v. United Airlines, Inc. (2022 WL 878921, at *6.) “With respect to essential functions of a
position ‘consideration shall be given to the employer’s judgment… and, if an
employer has prepared a written description… for the claimant’s job, this
description shall be considered evidence of the essential functions of the
job.” (Richardson v. Honda Mfg. of Alabama (2009) 635 F. Supp.2d 1261,
1275-1276.) Here, PIH’s COVID mandate (instituted by the CDPH) made either
vaccination or submitting to COVID testing an essential duty. It is undisputed that Plaintiff returned to
work on September 30, 2021 without testing for COVID. (UMF, ¶38.)
By not getting vaccinated or tested, Plaintiff could not perform the
essential duties of her job without endangering herself or others.
PIH further argues
that, even in the event that Plaintiff could establish a prima facie case, it
would have caused an undue burden to allow Plaintiff to work on hospital
grounds while untested (and unvaccinated). PIH’s burden would be to show that
it reasonably accommodated Plaintiff’s religious beliefs, or that no
accommodation was possible without producing undue hardship. (Soldinger v.
Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370.) Plaintiff fails
to sufficiently raise a triable issue of material fact. It is undisputed that
PIH is licensed by the CDPH, and that PIH’s failure to comply with CDPH’s COVID
mandates would result in a loss of licensure. Moreover, given the circumstances
surrounding the global COVID-19 pandemic at the time, permitting Plaintiff to
work on the hospital premises while unvaccinated and untested would have caused
an undue burden to PIH, its staff members, and patients.
Legitimate
and Non-Discriminatory Reason/Pretext
“An employer moving for summary judgment on a FEHA cause of
action may satisfy its initial burden of proving a cause of action has no merit
by showing either that one or more elements of the prima facie case is lacking,
or that the adverse employment action was based on legitimate nondiscriminatory
factors.” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5
Cal.App.5th 570, 591.) “Once the employer sets forth a nondiscriminatory reason
for the decision, the burden shifts to the plaintiff to produce substantial
responsive evidence that the employer’s showing was untrue or pretextual.” (Id.)
“An employer is entitled to summary judgment if, considering the employer’s
innocent explanation for its actions, the evidence as a whole is insufficient
to permit a rational interference that the employer’s actual motive was
discriminatory.” (Id.) To defeat summary adjudication, Plaintiff must
produce “substantial responsive evidence that the employer’s showing was untrue
or pretextual.” (Hersant v. California Dept. of Social Svcs. (1997) 57
Cal.App.4th 997, 1004-1005.) The employee cannot meet her burden of
establishing pretext by simply showing that the employer’s reason was wrong or
mistaken, because the issue is not the wisdom of the decision, but whether it
was discriminatory. (Wills v. Sup. Ct. (2011) 195 Cal.App.4th 143,
159-160.) “Rather, the [employee] must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable fact
finder could rationally find them ‘unworthy of credence.’… and hence infer
‘that the employer did not act for the [asserted] nondiscriminatory reasons.” (Sandell
v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 314.)
Even assuming that Plaintiff established a prima facie case
for discrimination, PIH has shown that its actions were legitimate and
non-discriminatory based on the issuance of the CDPH’s mandate. (SS Nos.
10-11.)
The burden shifts back to Plaintiff to show that PIH’s
nondiscriminatory reasons are pretextual. “If the employer sustains this
burden, the presumption of discrimination disappears. The plaintiff must then
have the opportunity to attack the employer’s proffered reasons as pretexts for
discrimination, or to offer any other evidence of discriminatory motive.” (Guz
v. Bechtel National, Inc. (2000) 24 Cal.4th 315, 355.) “At least three
types of evidence can be used to show pretext: (1) direct evidence of
retaliation, such as statements or admissions, (2) comparative evidence, and
(3) statistics.” (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th
803, 816.) “Direct evidence is evidence which, if believed, proves the fact [of
discriminatory animus’ without inference or presumption.’ [Citation.]” (Godwin
v. Hunt Wesson, Inc. (9th
Cir. 1998) 150 F.3d 1217, 1221.) Here, Plaintiff offers no evidence of pretext.
The CDPH instituted a neutral policy requiring mandatory COVID vaccination or
testing for all healthcare workers. There was no exemption for submitting to
COVID testing, regardless of religious affiliation.
Summary adjudication of the first cause of action is GRANTED.
Second Cause of Action – Retaliation (Gov. Code
§12940(h).)
Gov. Code §12940(h)
makes it an unlawful business practice “[f]or any employer… to discharge,
expel, or otherwise discriminate against any person because the person has
opposed any practices forbidden under this part or because the person has filed
a complaint, testified, or assisted in any proceeding under this part.” “To
establish a prima facie case of retaliation under FEHA, a plaintiff must show
(1) he or she engaged in a ‘protected activity.’ (2) the employer subjected the
employee to an adverse employment action, and (3) a causal link existed between
the protected activity and the employer’s action. [Citations.]” (Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 380.)
Summary adjudication
is GRANTED.
Plaintiff fails to
submit sufficient evidence to show that the proffered reasons for her
termination were a pretext for a retaliatory motive. Plaintiff relies on the
following facts: PIH engaged in unlawful retaliation by placing her on unpaid
leave for remaining unvaccinated, and then eventually terminating her because
of her refusal to get vaccinated and/or submit to COVID testing. Plaintiff
argues that there is a causal link between her religious objection and the
adverse employment action.
Plaintiff is unable
to establish a prima facie case of retaliation because the alleged adverse
employment actions (either being placed on unpaid leave or getting fired) are
unconnected to Plaintiff’s accommodation requests. The vaccine/testing policies
existed before Plaintiff opposed the testing requirement/was placed on
administrative leave. “[I]t is not reasonable to infer that there was a causal
connection between her criticism of the policy and her termination.” (Lundstrom v. Contra Costa Health Svcs.
(2022 WL 17330842, at *7)
Third Cause of Action – Failure to Prevent Religious Harassment,
Discrimination, and Retaliation
Gov. Code §12940(k)
makes it an independent tort for employers “to fail to take all reasonable
steps necessary to prevent discrimination and harassment from occurring.” A
successful claim for Failure to Prevent Harassment, Discrimination, and
Retaliation depends on whether Plaintiff has adequately alleged claims for for Harassment, Discrimination, or
Retaliation. As indicated above, Plaintiff has not successfully alleged a claim
for Religion-Based Discrimination sufficient to withstand summary adjudication.
Accordingly, summary
adjudication of the third cause of action is GRANTED.
Fourth Cause of Action – Wrongful Termination
Plaintiff’s fourth
cause of action is for wrongful termination in violation of public policy. In
moving for summary adjudication on Plaintiff’s Tameny claim, PIH
essentially repeats all of the material facts asserted in connection with other
causes of action. Because Plaintiff has not successfully alleged her underlying
claims for Religion-Based Discrimination
or Retaliation, summary adjudication is GRANTED.
Fifth Cause of
Action – Declaratory Relief
Plaintiff seeks a
judicial declaration that her religion/engagement in protected activity was a
substantial motivating factor in an adverse employment action being taken
against her by PIH.
PIH argues that it
is entitled to summary adjudication of this claim because an actual, present
controversy has not been established. Plaintiff no longer works for PIH, and
declaratory relief is not available to redress past wrongs. This argument lacks
merit. “Declaratory relief, where appropriate, may serve to reaffirm the
plaintiff’s equal standing among her coworkers and community, and to condemn
discriminatory employment policies or practices.” (Harris v. Santa Monica
(2013) 56 Cal.4th 203, 234.)
Notwithstanding, PIH
additionally argues that this claim is essentially derivative of all of
Plaintiff’s other claims. As summary adjudication of those claims is
appropriate for reasons articulated above, it follows that summary adjudication
of Plaintiff’s claim for declaratory relief is also warranted. Summary
adjudication is GRANTED.
Sixth Cause of
Action – Failure to Inspect Personnel and Payroll Records
“An employer who
receives a written or oral request to inspect or receive a copy of records
pursuant to subdivision (b) pertaining to a current or former employee shall
comply with the request as soon as practicable, but not later than 21 calendar
days form the date of the request.” (Cal. Labor Code §226(c).)
Plaintiff requested
employment records on October 18, 2021. 21 days from October 18, 2021 is
November 8, 2021. Records were provided to Plaintiff’s counsel on November 4
and 12, 2021. Thus, Plaintiff maintains that the November 12, 2021 production
is untimely and that summary adjudication must be denied.
It is undisputed
that PIH untimely produced Plaintiff’s records on November 12, 2021- beyond 21
days of Plaintiff’s written request. (See SS No. 65 and Response to SS No. 65.)
Summary adjudication is DENIED.
Punitive Damages
A claim for punitive
damages is properly the subject of a motion for summary adjudication. Summary
adjudication may only be granted when an entire claim for punitive damages is
eliminated. (Catalano v. Sup. Ct. (2000) 82 Cal.App.4th 91, 92.)
Pursuant to Cal.
Civ. Code §3294(b), “[a]n employer shall not be liable for damages…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 or
oppression, fraud, or malice must be on the part of an officer, director, or
managing agent of the corporation.” (Id.) “ ‘Malice’ means conduct which is
intended by the defendant to cause injury to the plaintiff or despicable
conduct which is carried on by the defendant with a willful and conscious
disregard for the rights and safety of others.” (Cal. Civ. Code §3294(c)(1).)
Oppression “means despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person’s rights.” (Cal. Civ. Code
§3294(c)(2).) Fraud “means an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant with the intention on the
part of the defendant of thereby depriving a person or property or legal rights
or otherwise causing injury.” (Cal. Civ. Code §3294(c)(3).) Summary
adjudication on a punitive damages claim is properly granted when a plaintiff
fails to present clear and convincing evidence of tortious conduct that was
malicious, fraudulent or in blatant violation of law or policy. (Food Pro
International, Inc. v. Farmers Ins. Exchange (2008) 169 Cal.App.4th 976,
995.)
“[A]n unlawful
termination, without more, is insufficient. In general, ‘[p]unitive damages are
proper only when the tortious conduct rises to levels of extreme indifference to
the plaintiff’s rights, a level which decent citizens should not have to
tolerate.’ [Citation.] Thus, ‘[s]omething more than the mere commission of a
tort is always required for punitive damages. There must be circumstances of
aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil
motive on the part of the defendant, or such a conscious and deliberate
disregard of the interests of others that his conduct may be called willful or
wanton.’” (Ocampo v. HeiTech Services, Inc. (2020) (N.D. Cal., Sept. 16, 2020) 2020 WL
5545286, at *7.)
Punitive damages are
not warranted here because, “the only evidence of wrongful conduct directed
towards [the plaintiff] was her termination for an improper reason.
[Citation.]” (Id.) This is not enough to support a claim for punitive
damages.
Summary adjudication
of Plaintiff’s claim for punitive damages against is GRANTED.
Given the Court’s ruling as to the sixth cause of action,
the Motion for Summary Judgment is DENIED.
Plaintiff’s
Evidentiary Objections
1.
Sustained
2.
Overruled
3.
Overruled
4.
Overruled
5.
Overruled
6.
Sustained
7.
Sustained
8.
Sustained
9.
Sustained
10.
Sustained
11.
Sustained
12.
Sustained
13.
Sustained
14.
Sustained
15.
Sustained
16.
Sustained
17.
Overruled
18.
Overruled
19.
Overruled
20.
Overruled
21.
Overruled
22.
Overruled
23.
Sustained
24.
Sustained
25.
Overruled
26.
Overruled
27.
Overruled
28.
Overruled
29.
Overruled
30.
Overruled
31.
Overruled
32.
Overruled
33.
Overruled
34.
Overruled
35.
Overruled
36.
Overruled
37.
Overruled
38.
Overruled
39.
Overruled
40.
Overruled
41.
Overruled
42.
Overruled
43.
Overruled
44.
Overruled
45.
Overruled
46.
Overruled
47.
Overruled
48.
Overruled
Defendant’s Evidentiary
Objections
Nos. 1-24. Overruled
Defendant’s
Objections to Exhibits Attached to Declaration of Lilia Acevedo-Cosio
Overruled as to Exs.
3, 5, and 6; Sustained as to Ex. 15.