Judge: Maurice A. Leiter, Case: 22STCV07170, Date: 2023-09-19 Tentative Ruling

Case Number: 22STCV07170    Hearing Date: February 15, 2024    Dept: 54

Hearing Date: February 15, 2024

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Moving Party: Defendant Kaiser Foundation Hospitals

Responding Party: Plaintiff Sheila Sansano

T/R:      DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, MOTION FOR SUMMARY ADJUDICATION IS DENIED.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On February 28, 2022, Plaintiff Sheila Sansano sued Defendant Kaiser Foundation Hospitals, asserting causes of action for (1) discrimination; (2) harassment; (3) retaliation; (4) failure to prevent discrimination, harassment and retaliation; (5) wrongful termination in violation of public policy; (6) whistleblower retaliation; (7) breach of oral contract; and (8) breach of implied-in-fact contract.

The Court sustained Defendants’ demurrer to the seventh and eighth causes of action with leave to amend. On September 6, 2022, Plaintiff filed a first amended complaint for 1) discrimination; (2) harassment; (3) retaliation; (4) failure to prevent discrimination, harassment, and retaliation; (5) wrongful termination in violation of public policy; (6) whistleblower retaliation; and (7) breach of implied-in-fact contract.

Plaintiff, a Filipino woman, alleges Defendant terminated her employment as the Director of Food and Nutrition Services on the basis of her race, national origin and gender, and for reporting instances of discrimination and harassment.

EVIDENCE OBJECTIONS

Defendant’s objections to the declarations of Plaintiff and Melineh Jingozian are OVERRULED.

ANALYSIS

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Trial judges are required “to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2).) Once the defendant has met that burden, “the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id.)  To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

A. First Cause of Action for Discrimination

To successfully assert a claim for discrimination, Plaintiff must satisfy the requirements of the three-step McDonnell Douglas test. (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-55.)  Generally, a prima facie case requires showing that (1) plaintiff was a member of a protected class; (2) they were qualified for the position they sought or were performing competently in the position they held; (3) plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive. (See id. at 355.) 

Once a plaintiff has established a prima facie case, there is a “rebuttable” but “legally mandatory” presumption of discrimination. (Id. at 355.) The burden then shifts to the defendant to rebut the presumption by producing admissible evidence that the defendant’s “action was taken for a legitimate, nondiscriminatory reason.” (Id. at 355-356.) 

Finally, if the defendant meets its burden, “the presumption of discrimination disappears.” (Id. at 356.) The plaintiff must then show that the defendant’s legitimate reason is merely pretext. (Id.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.” (Id.) 

Defendant asserts Plaintiff’s claim for discrimination fails because Plaintiff was not performing her job satisfactorily, Plaintiff cannot show a causal nexus between her race and her termination, and Defendants had legitimate, non-discriminatory reasons. Defendant presents evidence purportedly showing Plaintiff violated various company policies. Defendant asserts Plaintiff was terminated because she improperly expensed and reimbursed herself for food items that were donated by other employees and the investigation into this incident revealed other policy violations.

In opposition, Plaintiff argues Defendant’s reasons for termination are pretext. Plaintiff presents evidence showing she performed her job satisfactorily, she did not violate the policies identified by Defendant, and other employees who purportedly violated the same policies were treated more favorably than Plaintiff. Plaintiff provides evidence showing she reported the conduct of at least two employees who treated her with hostility and made disparaging comments about Plaintiff’s Filipino descent. Plaintiff asserts these employees also made false reports of misconduct against Plaintiff and deflated her tires. Plaintiff disputes that Defendant properly investigated her claims. This is sufficient to establish a triable issue of fact as to discrimination.

Defendant’s motion for summary judgment is DENIED.

B. Third and Sixth Causes of Action for Retaliation

To establish retaliation, 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.) A retaliation claim can be brought by an employee who has complained of conduct reasonably believed to be discriminatory. (Id. at 1043; see also Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 209-10.)

Defendant asserts Plaintiff’s claims for retaliation fail because there is no causal link between Plaintiff’s complaints and her termination. Plaintiff presents evidence showing she made at least three complaints to Defendant about conduct she believed to be discriminatory, two as late as 2020. Plaintiff points to an April 2020 email from HR Business Partner Carole Erken, stating “We cannot have Sheila continue to put her thoughts down on paper making up conclusions when an investigation has not occurred,” and “I am very concerned that her inappropriate emails continue and will create future liability for the organization.” This is sufficient to create a triable issue of fact as to retaliation.

C. Second Cause of Action for Harassment

Defendant argues Plaintiff’s claim for harassment fails because the alleged harassment was perpetrated by subordinate, rather than supervisory, employees. Defendant asserts “[w]hen the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action).” (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 952.) As discussed, Plaintiff has presented evidence showing Defendant was aware of the subordinate employees’ behavior and nonetheless terminated Plaintiff’s employment. This creates a triable issue of fact as to harassment.

D. Fourth and Fifth Causes of Action for Failure to Prevent and Wrongful Termination and Punitive Damages

Defendant asserts the fourth and fifth causes of action and the claim for punitive damages fail because they are derivative of the causes of action for discrimination, harassment, and retaliation. Plaintiff has presented triable issues of fact as to these claims.

E. Seventh Cause of Action for Breach of Implied-in-Fact Contract

Courts have acknowledged that implied-in-fact contracts to terminate an individual’s employment without cause can exist. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 336-7.) Factors to consider are “the personnel policies or practices of the employer, the employee's longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.” (Id. Internal quotations omitted.)

Defendant asserts there is no implied contract allowing only “for cause” termination because Defendant had an express “at-will” policy and Plaintiff admitted at deposition that she knew her employment was “at-will.” In opposition, Plaintiff argues that her years of satisfactory performance and Defendant’s policies against discriminatory terminations imply a contract mandating “for cause” terminations. This is sufficient to create a triable issue of fact.