Judge: Linda S. Marks, Case: 2019-01072129, Date: 2022-12-12 Tentative Ruling
Motion for Summary Judgment and/or Adjudication filed by Kerby Mellott, The Regents Of The University Of California, Nancy Eagan, Susanna Rustad on 9/26/22
Defendants move for summary judgment, or in the alternative, summary adjudication in its favor and against Plaintiff Inmaculada M. Unkle for the following causes of action: (1) First Cause of Action for Whistleblower Retaliation in Violation of Labor Code section 1102.5 as Plaintiff did not suffer a materially adverse employment action, Plaintiff’s complaints were not a contributing factor to any adverse employment action, and all of the Regents’ actions were undertaken for independent, legitimate business reasons; and (2) Second Cause of Action for Intentional Infliction of Emotional Distress as the Regents did not intend to cause Plaintiff emotional distress and the Regents’ conduct was neither extreme nor outrageous.
Plaintiff’s Objection:
Plaintiff has filed an objection to “Defendants’ facts numbered 18 and 44” on the ground of lack of foundation as it calls for a legal conclusion. (ROA 164.)
It appears that Plaintiff is objecting to the fact being asserted, and not to the evidence cited, i.e., excerpts from Plaintiff’s deposition, in support of the fact being asserted. This is not a proper evidentiary objection. The Court OVERRULES Plaintiff’s purported evidentiary objections to “Defendants’ facts numbered 18 and 44.”
Defendant’s Objections:
Defendant filed “Evidentiary Objections” to seven of eight of Plaintiff’s additional facts (Nos. 1-3, and 5-8), and not the evidence upon which the fact relies. Defendant does not specify the part of evidence cited to which Defendant objects such that it is unclear to what precise part of the evidence cited that Defendant objects. The Court OVERRULES all objections, consisting of Objection Nos. 1 through 7.
First Cause of Action for Whistleblower Retaliation in Violation of Labor Code section 1102.5:
“Section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities . . . . “[S]ection 1102.5 prohibits an employer from retaliating against an employee for sharing information the employee ‘has reasonable cause to believe . . . discloses a violation of state or federal statute’ or of ‘a local, state, or federal rule or regulation’ with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation [Citation.] (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709 (“Lawson”).) “An employee injured by prohibited retaliation may file a private suit for damages. [Citations.]” (Ibid.) To come within the provisions of Section 1102.5, the activity disclosed by an employee must violate a federal or state law, rule or regulation. (Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 821-822.)
“[T]he 2003 amendments added a procedural provision, section 1102.6, which states in full: ‘In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.’ ” (Lawson, supra, 12 Cal.5th at p. 711.) Section 1102.6 supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims.” (Id. at p. 712.) “By its terms, section 1102.6 describes the applicable substantive standards and burdens of proof for both parties in a section 1102.5 retaliation case.: First it must be ‘demonstrated by a preponderance of the evidence’ that the employee’s protected whistleblowing was a ‘contributing factor’ to an adverse employment action. [Citation.] Then, once the employee has made that necessary threshold showing, the employer bears ‘the burden of proof to demonstrate by clear and convincing evidence’ that the alleged adverse employment action would have occurred ‘for legitimate, independent reasons.’ Even if the employee had not engaged in protected whistleblowing activities. [Citation.]” (Ibid.) This standard applies at summary judgment. (Id. at pp. 717-718.)
To establish a prima facie case of retaliation under Labor Code section 1102.5, plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) a causal link between the two. (St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 314.)
1. Individual Liability of Rustad:
As a threshold matter, and only as a commentary to the status of Rustad, footnote 1 of the moving papers provides that the First Cause of Action was initially alleged against the Regents and Defendants Eagan, Mellott and Rustad, and that the parties filed a joint stipulation dismissing the individual employee defendants but they appear to have inadvertently omitted Defendant Rustad.
Citing to Reno v. Baird (1998) 19 Cal.4th 40 and Jones v. Torrey Pines Partnership (2008) 42 Cal.4th 1158, Defendants contend that individual defendants cannot be held personally liable to a plaintiff for an employment-related retaliation claim such that Plaintiff’s claim against Defendant Rustad in her individual capacity fails as a matter of law.
In order to move for summary adjudication, the party moving must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. (California Rules of Court, Rule 3.1350 (b).) A notice of motion must state the “grounds upon which it will be made.” (Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498 [citing Code Civ. Proc. § 1010] (“Homestead”).) The court has no power to adjudicate others. (Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead, supra, 179 Cal. App. 3d at p. 498.)
The Court declines to adjudicate this issue as it is not set forth in the notice as an issue for adjudication of the First Cause of Action for Rustad. In addition, Plaintiff does not address this argument.
2. Adverse Employment Action:
Plaintiff alleges that from 2007 through Plaintiff’s termination, Defendants Eagan, Mellott, and Rustad retaliated against her by transferring her from the Liver Transplant Program, harassing Plaintiff, threatening Plaintiff, misclassifying Plaintiff as AAII, promoting other employees over Plaintiff and terminating Plaintiff as a result of Plaintiff’s whistleblower complaint and communications with the FBI. (SAC, ¶¶ 13, 14, 23.)
It is undisputed that on December 21, 2017, Plaintiff received a letter notifying her that her position had been eliminated, effective February 5, 2018, and that Plaintiff elected to receive severance pay in lieu of Preference and Recall. (PSS, 93, 94.)
At minimum, terminating Plaintiff constitutes an adverse employment action. Thus, Defendants fail to negate this element for the First Cause of Action.
3. Contributing Factor:
Defendant contends that assuming arguendo that the Regents subjected Plaintiff to an adverse employment action, Plaintiff’s claim fails because her 2006 Whistleblower Complaint did not contribute to any adverse employment action.
Plaintiff contends that her status as a whistleblower was “well known” throughout her employment, and that her statements to the FBI were “well known” throughout the workplace. Plaintiff argues that Defendants Eagan, Mellott, and Rustad retaliated against Plaintiff due to her Whistleblower Complaint such that there exists a triable issue of fact.
“Section 1102.6 requires whistleblower plaintiffs to show that retaliation was a ‘contributing factor’ in their termination, demotion, or other adverse action. This means plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action. [Citations.]” (Id. at p. 713-714.) “Under section 1102.6, a plaintiff does not need to show that the employer’s nonretaliatory reason was pretextual. Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action.” (Lawson, supra, 12 Cal.5th at pp. 715-716.)
Here, it is undisputed that Plaintiff was first hired by the Regents in 1997, that she held the position of Administrative Assistant III in the Managed Care Department and had a break of service between 2000 and 2003, and that she was rehired in 2003 in the administrative capacity as an Administrative Assistant II (“AAII”), providing clerical support to physicians in the Liver Transplant Program. (PSS, 1-5.)
Plaintiff alleges that she first attempted to blow the whistle in February 2006. (PSS 11.) It is undisputed that the Liver Transplant Program was permanently shut down in November 2005. (PSS, 6.) It is also undisputed that on April 3, 2006, Plaintiff filed a Complaint regarding the Liver Transplant Program (PSS, 12), and that on September 26, 2006, Plaintiff filed a Whistleblower Retaliation Complaint against her supervisor, Nancy Eagan (PSS, 33).
Additionally, it is undisputed that Plaintiff admits that she has no evidence that Defendants Eagan, Mellott, and Rustad were even aware of Plaintiff’s Whistleblower Complaint. (PSS, 18.) Plaintiff does not state whether the fact is disputed or undisputed but only objects to this fact as a legal conclusion. This is not a legal conclusion, and does not show that any of the individual Defendants were aware of the Whistleblower Complaint.
Moreover, it is undisputed that Plaintiff is not aware if Mellott knew about her whistleblower complaint. (PSS, 38.) Similarly, it is undisputed that Plaintiff is not aware if Rustad knew about her whistleblower complaint, and Plaintiff never discussed her whistleblower complaint with Rustad. (PSS, 76, 77.)
It is further undisputed that none of the individual Defendants recall when they learned of the Whistleblower Complaint or recall whether Plaintiff communicated with the FBI as it did not affect their departments. (PSS, 20.)
It is undisputed that in or around May 2015, Plaintiff requested a reclassification, and that on October 16, 2015, Plaintiff was informed that her classification as AAII was correct. (PSS, 45, 56.) It is undisputed that on December 21, 2017, Plaintiff received a letter notifying her that her position had been eliminated, effective February 5, 2018, and that Plaintiff elected to receive severance pay in lieu of Preference and Recall. (PSS, 93, 94.)
Based on the foregoing, Plaintiff fails to present evidence showing that any of the individual defendants had knowledge of Plaintiff’s Whistleblower Complaint or communications with the FBI concerning the Liver Transplant Program prior to any of their alleged wrongful conduct against Plaintiff occurring from 2007 through Plaintiff’s termination. (SAC, ¶¶ 17-19.) In turn, Plaintiff fails to show by a preponderance of the evidence that Plaintiff’s Whistleblower Complaint or communications with the FBI was a contributing factor to the failure to reclassify her in 2015 and her ultimate termination in 2018, or any other alleged adverse employment action. Plaintiff fails to meet her burden under Labor Code section 1102.6 pursuant to Lawson, and fails to create a triable issue of fact as to a causal connection between the alleged Whistleblower Complaints and any adverse employment action.
Plaintiff argues that Defendants’ reliance on Lawson for the proposition that a plaintiff must demonstrate by a preponderance of the evidence that the retaliation was a contributing factor to the adverse termination action is not the standard in a summary judgment motion. (Opposition, 7:17-20.) However, Plaintiff does not address Lawson, which provides that the standard set out in Section 1102.6 applies to summary judgment motions. (Lawson, supra, 12 Cal.5th at pp. 717-718.)
As Plaintiff fails to meet her burden, the burden does not shift to Defendants to demonstrate by clear and convincing evidence that the alleged adverse employment action would have occurred for legitimate, independent reasons even had the plaintiff not engaged in protected activity.
Second Cause of Action for Intentional Infliction of Emotional Distress:
The Second Cause of Action is brought against Defendants Mellott, Eagan, and Rustad, is based on the alleged retaliatory conduct of Defendants Mellott, Eagan, and Rustad, and alleges, that “[t]he conduct of Defendants, and each of them, was outrageous and beyond the bounds of decency such that no reasonable person could be expected to endure it.” (SAC, ¶¶ 26-27.) The SAC alleges that Defendants’ conduct was intentional and in reckless disregard for the probability that severe injury would result, that Plaintiff was forced to ensure pain, mental anguish, shock, humiliation, feelings of helplessness, and depression as a result of Defendant’s conduct, and that Plaintiff sustained severe and serious injury to her person. (SAC, ¶¶ 28-30.)
“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.)
“Outrageous conduct is conduct that is intentional or reckless and so extreme as to exceed all bounds of decency in a civilized community. [Citation.] The defendant's conduct must be directed to the plaintiff, but malicious or evil purpose is not essential to liability. [Citation.] Whether conduct is outrageous is usually a question of fact. [Citation.]” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 203.)
Defendants fail to meet their burden to show that the element of intent cannot be established as they provide no evidence in support of the contention that Regents undertook all actions for the financial health of the Hospital and for the benefit of the Hospital’s patients. Nor is this cause of action asserted against the Regents.
As to extreme and outrageous conduct, it is undisputed that Defendants Eagan, Mellott, and Rustad deny any retaliatory treatment of Plaintiff. (PSS, 21.) It is also undisputed that on January 9, 2017, Rustad informed Plaintiff that Plaintiff could not take her lunch break at the end of her shift because it violated the Regents’ policies (PSS, 88); and that Rustad determined that several employees in the Department, including Plaintiff, were to be laid off because their skillset and experience did not support the new ERP system (PSS, 92).
It is also undisputed that in 2005, the Liver Transplant Program was permanently shut down in November 2005. (PSS, 6.) It is undisputed that that Plaintiff’s Complaint filed on April 3, 2006, took place after the program had shut down and Plaintiff had been transferred to the CDDC. (PSS, 14.) It is undisputed that some of Plaintiff’s allegations against Defendant Eagan were unfounded. (PSS, 23.)
It is additionally undisputed that Plaintiff received written warnings for poor work habits such as tardiness, absences, and non-compliance of supervisory directives in violation of the Regents’ policies and procedures from Defendant Eagan between January and September 2006 (PSS, 24, 25); that Plaintiff was counseled by Egan on August 9, 2006 due to Plaintiff’s inappropriate attire which violated the Regents’ dress code policy (PSS, 29); and that on August 10, 2006, Plaintiff was temporarily transferred to the Occupational Health Department as part of a reasonable accommodation for approximately six months (PSS, 30).
It is further undisputed that on September 25, 2006 Plaintiff was reminded not to wear CDDC scrubs when working in other departments (PSS 32); that Plaintiff was transferred on April 6, 2007 to the Purchasing Procedure Department in the Fullerton Warehouse where she worked as a Purchasing Assistant/AAII (PSS, 37); that Mellott’s bullying and intimidation was used with other employees at the office (PSS, 39, 41); that Plaintiff was transferred to the Ambulatory Care Department where she reported to the CDDC Administrative Director, Dr. Hu, with whom she previously worked (PSS, 7); that Plaintiff admits that Mellott either took action to alleviate Plaintiff’s concerns regarding her co-workers, or that she did not report her issues directly to him (PSS, 43); that the Regents’ determined that Plaintiff’s job was appropriately positioned after her request for reclassification (PSS, 59); that on June 13, 2017, Rustad sent Plaintiff a letter advising her not to disrupt her co-workers while on a leave of absence which Plaintiff did (PSS, 90), and that Plaintiff admitted that she disrupted her co-workers by asking them if they also needed to complete the activity logs and by showing up at the warehouse to socialize with the warehouse employees while she was on a medical leave of absence (PSS, 91).
The foregoing indicates that Plaintiff was corrected and given written warnings for failure to follow the Regents’ policy.
Plaintiff’s additional material facts include that Defendant Eagan told Plaintiff that she needed to leave and to quit and the Eagan did not want the Plaintiff in her department. (Plaintiff’s Additional Material Facts, 4.)
The Court notes that Defendants do not address certain factual allegations including those against Eagan and allegations that Eagan yelled at Plaintiff, ordered her to find another job, excluded Plaintiff in meetings that she was to be included in, forced Plaintiff to do demeaning and repetitive jobs, called Plaintiff useless, stated that Plaintiff was unprofessional/flaunting with patients, demeaned Plaintiff by stating that she had big breasts and could not wear certain articles of clothing, laughed at Plaintiff and mocked Plaintiff’s doctor’s appointments, slammed tables that Plaintiff sat at, did not allow Plaintiff to attend personal appointments, and changed Plaintiff’s voicemail access.
Where a defendant moving for summary judgment has failed to controvert the factual allegations in the complaint, the trial court must deem the allegations true for purposes of the motion. (Gutierrez v. Girardi (2011) 194 Cal. App. 4th 925, 933.)
Even considering Plaintiff’s additional material fact and deeming the allegations that Defendants do not controvert as true, Defendants’ conduct is insufficient to amount to extreme and outrageous conduct. “Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyance, petty oppressions, or other trivialities.” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 233, internal quotations omitted.)
Defendants meet their burden to show that the alleged conduct by the individual defendants is insufficient to constitute extreme and outrageous conduct. In response, Plaintiff merely argues in conclusory fashion that the totality of Defendants’ conduct was outrageous for the workplace. Plaintiff presents no evidence as to the nature and duration of any of the alleged conduct and fails to create an issue of triable fact as to whether each individual defendant’s conduct was extreme and outrageous.
Tentative Ruling: The Motion for Summary Judgment filed by Defendants, The Regents of the University of California (the “Regents”), Kerby Mellott (“Mellott”), Nancy Eagan (“Eagan”), and Susanna Rustad (“Rustad”) (collectively, the “Defendants”) is GRANTED.
Defendants to give notice.