Judge Randolph M. Hammock, Case 21STCV23460 2023-01-31 Tentative Ruling

Plaintiff Gustavus Mata, a Filipino-American, worked for Defendant Kaiser Foundation Hospitals as a registered nurse. Plaintiff alleges he suffered from work-related stress which led to chronic stable angina. He also suffered alleged neck injuries in a car accident. These injuries necessitated leave from work. Plaintiff alleges Defendant discriminately imposed and required that he pass a proficiency exam before returning to work. Plaintiff now brings causes of action for (1) disability discrimination in violation of FEHA; (2) failure to accommodate in violation of FEHA; (3) failure to engage in the interactive process in violation of FEHA; (4) harassment in violation of FEHA; (5) retaliation in violation of FEHA; (6) race discrimination in violation of FEHA; (7) national origin harassment in violation of FEHA; (8) wrongful termination in violation of public policy and FEHA; (9) failure to prevent discrimination, harassment, and retaliation in violation of FEHA; (10) hostile work environment; and (11) gender discrimination in violation of FEHA.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.

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. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. 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 motion for summary judgment must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak. Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.

A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action. Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858. Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. § 437c(o)(2).

Where a plaintiff cannot establish an essential element of a cause of action, or where a complete defense is shown, a court must grant a motion for summary adjudication. Code Civ. Proc. § 437c(o)(1)-(2). A defendant meets its burden by showing that “one or more elements of a cause of action . . . cannot be established.” Id.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. Parol evidence cannot be used to supply unwritten details of an arrangement between the parties. Friedman v. Bergin (1943) 22 Cal.2d 535, 539.

When a defendant moves for summary judgment or adjudication on the basis of an affirmative defense, the defendant has the burden of establishing the undisputed facts support each element of the affirmative defense. Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467-68.

Most of all, the required separate statement is designed to be a simple mechanism for this Court to utilize in examine whether or not there are triable issues of material fact. It is absurd to submit in this case almost THREE HUNDRED (300) alleged “undisputed material facts.” The key word is MATERIAL. What the Plaintiff stated in a deposition does not, in and of itself, create a “undisputed material fact.” Typically, what the Plaintiff states is the “supporting evidence” for an alleged “undisputed material fact.” It is not the responsibility of this Court to search for the proverbial “needle in the haystack.”

The same is true for the Plaintiff’s responses to the separate statement submitted by the Defendant. Additionally, Plaintiff commits a common error in its opposition papers by labeling part of his response to the moving party’s separate statement as “Plaintiff’s Separate Statement of Undisputed Material Facts (”PUMF”). He lists thirty-two (32) of these additional “undisputed” facts. It would seem that the Plaintiff may intend that some of these facts are actually “disputed,” as opposed to “undisputed.” Typically, parties who oppose summary judgment motions note that there are “additional disputed material facts” which defeat such a motion. See, CCP § 437c (b) (3) [“The opposition papers shall include a separate statement . . . The statement shall also set forth plainly and concisely any other material facts the opposing party contends are disputed.”] (Emphasis added.) In this case, the court is unclear as to which of these 32 additional facts are disputed or not or are even actually “material.”

The following facts are undisputed. Defendant Kaiser Foundation Hospitals hired Plaintiff Gustavus Mata as a registered nurse in January 2010. Plaintiff is a Filipino American and suffers from one or more disabilities. On or about June 11, 2018, Plaintiff went on medical leave from work to undergo triple heart bypass surgery. In April 2019, Plaintiff returned to work.

On May 31, 2019, Plaintiff injured his neck in a car accident. Plaintiff went on a second medical leave starting on or about June 15, 2019, and returned to work on October 24, 2019. On November 18, 2019, Plaintiff took another medical leave to undergo surgery on his neck. Plaintiff had surgery on December 10, 2019. He returned to work on or about June 15, 2020.

In July of 2020, Defendant informed Plaintiff that continuing work was contingent on him taking and passing an “EKG Exam.” Plaintiff took and failed the exam on August 12, 2020. Defendant will not allow Plaintiff to return to work until he passes the EKG Exam. Beginning August 26, 2020, to present, Plaintiff has taken extended medical leave and has not retaken the exam. On June 6, 2021, Plaintiff filed this action alleging violations of the FEHA, contending he has been effectively terminated.

When ruling on a motion for summary adjudication in the context of a discrimination claim, “the trial court will be called upon to decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. If the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing. (Moore v. Regents of Univ. of California (2016) 248 Cal. App. 4th 216, 236 [emphasis in original].) “Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case....[Citation.] However, ‘many employment cases present issues of intent, ... motive, and hostile working environment, issues not determinable on paper. Such cases ... are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.” (Id. [emphasis in original].)

Generally, to make a prima facie case for FEHA discrimination, “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.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355.)

In the Second Amended Complaint, Plaintiff alleges Defendant knew he “suffered from psychological conditions including but not limited to extremely high levels of stress and anxiety and psychological strain he sustained during his time employed with Defendants,” a disability that “substantially limited…his ability to work.” (SAC ¶ 37.) Plaintiff alleges that “Defendants discriminated against and took adverse employment actions” against him “due to his actual or perceived disability.” (Id. ¶ 39.) These adverse employment actions included “failing to accommodate his disability, failing to timely interact in good faith regarding accommodations for his disability, and effectively terminating his employment.” (Id.)

“[T]he employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” (Galvan v. Dameron Hosp. Assn. (2019) 37 Cal. App. 5th 549, 559.)

Defendant argues Plaintiff cannot make a prima facie case of discrimination because he was not qualified for his job, as evidenced by his failing of the EKG exam. Defendant also argues that Plaintiff has not suffered an adverse employment action, because he is on medical leave and has never been terminated. Defendant argues there is no causal connection between his medical condition and any negative treatment.

Defendant finally argues that the EKG exam is not discriminatory and it did not single-out Plaintiff. Instead, the EKG exam “is a required competency assessment for all RNs in the Unit.” (SSUMF ¶¶ 2, 15.) Joyce Leido, the Chief Nurse Executive (CNE) at Kaiser Permanente’s Los Angeles Medical Center,” submits that the EKG exam was instituted in 2018 as a “standardized,” “required competency exam for nurses to continue practicing” in the Coronary Care Unit where Plaintiff worked. (Leido Decl. ¶ 4.) Defendant has therefore met its burden.

This shifts the burden to Plaintiff to “offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Foroudi v. Aerospace Corp. (2020) 57 Cal. App. 5th 992, 1007.)

Plaintiff presents evidence (1) that he suffers from both psychological and physical disabilities; (2) that aside from the passing the EKG exam he was otherwise qualified for his position, as evidenced by his years of experience working as a registered nurse, many with Defendant Kaiser; and (3) that he suffered an adverse employment action, in that he was “effectively terminated” by the imposition of the mandatory EKG Exam. (See Mata Decl. ¶¶ 2, 13, 19.)

Plaintiff purports to dispute that the EKG Exam is mandatory, and contends he was never told it was mandatory. (SSDMF ¶¶ 1, 2.) He also contends that Defendants refused to show him the results of this EKG exam, and indeed, “do[es] not believe that [he] failed” it. (Mata Decl. ¶ 13.) [FN 1] At Plaintiff’s deposition, when asked if he had “ever observe[d] anyone treating [him] differently because of [his] specific medical conditions,” Plaintiff responded: “I can’t recall.” (SSUMF ¶ 20.) When asked if he “ever hear[d] anyone make any specific negative comments about [his] specific medical condition,” he responded, “I don’t recall.” (SSUMF ¶ 21.)

In his declaration, Plaintiff contends he “was singled out, discriminated, and harassed” due to his disability and medical conditions. (Mata Decl. ¶¶ 24. 29.) He points to a particular scenario, among others, when a Kaiser employee, Sarah Kwan, “made discriminatory remarks during a lecture about both disabled people and males where she stated that middle aged men were more prone to depression compared to people who were not males and not middle aged.” (Mata Decl. ¶ 26.) Plaintiff interpreted this comment as directed toward him because he had recently informed Kwan he suffered from depression. (Id.) Thus, Plaintiff believes he was “wrongfully terminated from Kaiser as Kaiser is not allowing [him] to return to work,” and attributes this discrimination in part to his disability, his “requests for medical leave to accommodate [his] disability,” and his “requests for reasonable accommodations.” (Id. ¶¶ 28-29.) In another instance, sometime in May 2018, Plaintiff asked Kwan “for a copy of the previous EKG Exam.” (Mata Decl. ¶ 25.) She responded “by giving [Plaintiff] a demeaning look and answered [him] in a blunt and rude manner that she could not provide it to” him. (Id.) Plaintiff believes that Kwan “was singling [him] out for differential treatment due to [his] disability.” (Id.)

As a matter of law, Plaintiff’s arguments and declaration cannot defeat summary judgment. “The employee's ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’ [Citation.]” (Foroudi, supra 57 Cal. App. 5th at 1007-08.) “Although an employee's evidence submitted in opposition to an employer's motion for summary judgment is construed liberally, it ‘remains subject to careful scrutiny.’” [Citation.] (Id. [emphasis added].)

Moreover, the “stronger the employer's showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff's evidence must be in order to create a reasonable inference of a discriminatory motive.” (Id. at 1008.) There can be no doubt that Defendant has shown a strong and legitimate reason for imposing the EKG exam. Indeed, it is a required competency exam for all nurses in the Coronary Care Unit. From Plaintiff’s evidence, which mainly consists of his subjective beliefs of discrimination, this court cannot find that Plaintiff has created a reasonable inference of discriminatory motive. Thus, Plaintiff has failed to carry his burden.

This Court is mindful of its obligation to “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. Moreover, this Court is aware of its duty not to weigh or to judge the credibility of the witnesses.

However, this duty is not necessarily absolute. As discussed supra, any evidence proffered by the opposing party still must be specific and “substantial” in nature in order to create a triable issue of material fact. It cannot be “speculative.” The inferences required to be taken must be “reasonable.” See, e.g., Huitt v. Southern California Gas Co., (2010) 188 Cal.App.4th 1586; Trujillo v. First American Registry, Inc., (2007) 157 Cal.App.4th 628.

The elements of a failure to accommodate claim are “(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1009–10.)

As framed by the pleading, Plaintiff alleges that Defendants knew he “suffered from a disability during his employment with Defendants” that “substantially limits one or more major life activities, including but not limited to his ability to work.” (SAC ¶ 46.) Plaintiff alleges he “was willing and able to perform the essential job duties of his position or other suitable positions if reasonable accommodation had been made by Defendants.” (Id. ¶ 47.) Instead, Plaintiff alleges “Defendants failed to reasonably accommodate his disability, and instead of interacting about accommodations, Defendants retaliated against Plaintiff because of his disabilities and/or her requests for accommodation for his disabilities.” (Id. ¶ 48.)

The evidence shows that Plaintiff cannot reasonably dispute that Defendant provided Plaintiff with all the time off that he requested. Indeed, neither Plaintiff’s memorandum nor separate statement present evidence suggesting otherwise. Plaintiff is still on leave. Plaintiff has presented no evidence that Defendant’s failure to allow him to return to work reflects a failure to accommodate. Rather, Plaintiff’s extended leave is attributed to him failing the EKG Exam. Neither has Plaintiff argued what accommodation Defendant could have but failed to provide.

Instead, Plaintiff raises a new argument in his opposition that due to his psychological disability and “very high levels of stress and anxiety, he “could not perform well while taking an exam under strict timed conditions.” He requested accommodations to take the exam, but those “were not met.” (Mata Decl. ¶ 15.)

First, Plaintiff’s Second Amended Complaint does not contain any allegations suggesting that his failure to accommodate cause of action is based on Defendant’s failure to accommodate his test-taking. Rather, the SAC frames the issues as those based on failure to accommodate his ability to work. Nowhere, however, does Plaintiff plead that Defendant failed to accommodate his exam taking process.

Even assuming such allegations were present in the Complaint, Plaintiff has failed to meet his burden. Plaintiff has produced no evidence demonstrating he ever informed anyone at Kaiser that he needed additional time on the EKG Exam. It appears the only competent evidence in the record where Plaintiff asked for an accommodation for the EKG exam was in an email in which he requested “a neutral place to take the EKG Exam, free from harassment and intimidation.” (D’s Exh. 29.) Defendant apparently did as much, and it is undisputed that Defendant offered Plaintiff numerous opportunities to retake the exam. Thus, Plaintiff has failed to establish the existence of a triable issue of fact on his second cause of action for failure to accommodate.

Once again, this Court is mindful of its obligation to “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. Moreover, this Court is aware of its duty not to weigh or to judge the credibility of the witnesses.

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

Like for the second cause of action, discussed above, Plaintiff’s opposition attempts to shift the issues underlying the third cause of action for failure to engage in the interactive process. Plaintiff now argues that “Defendants did not engage in a meaningful interactive process with Plaintiff, particularly with regard to Plaintiff’s requests for accommodations relating to the administration of the EKG Exam, despite Plaintiff having conveyed to Kaiser that he was suffering from high levels of stress and anxiety such as to inhibit his ability to take the exam under strict time limits.” (Opp. 11: 8-12 [emphasis added].) However, the SAC based this cause of action on Defendant having failed to “determine whether a reasonable accommodation could be made so that he would be able to perform the essential job requirements for his position or any other positions within KAISER for which he was eligible.” (SAC ¶ 55.)

Thus, as framed by the pleading, Plaintiff alleges his disability limited his ability to work, but “was willing to participate in an interactive process to determine whether a reasonable accommodation could be made so that he would be able to perform” his or similar roles. (SAC ¶ 55.) Plaintiff alleges Defendant “failed to participate in a timely, good-faith interactive process with Plaintiff to determine whether a reasonable accommodation could be made.” (Id. ¶ 56.)

For his burden, Plaintiff has presented no evidence that Defendants failed to engage in an interactive process. As noted, the uncontroverted evidence suggests that Plaintiff was given all the time off he requested. Plaintiff’s opposition papers also fail to address the failure to engage in the interactive process on the issues delineated by the pleading—instead, he focuses on the lack of an interactive process in the specific context of taking the EKG exam. Accordingly, Plaintiff cannot meet his burden to establish a triable issue of fact on the Third Cause of Action.

To establish a prima facie case of harassment, a plaintiff must establish that “(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, supra, 37 Cal. App. 5th at 563.)

As framed by the pleadings, Plaintiff alleges he was “subject to harassing conduct because he had refused to submit to the constant bullying and harassment by [Defendant’s] managers and supervisors, had complained about the workplace abuses existing at [Defendant], including tolerance for abuse and humiliation of employees, and complaining about the treatment he had received from [Defendant’s] employees.” (SAC ¶ 64.) Plaintiff alleges “he was terminated due to these complaints and other reasons.” (Id. ¶ 65.)

Plaintiff’s opposition argues harassment by being “subjected to continual accusations of underperforming in his workplace duties, being accused without justification of being rude and disrespectful when Plaintiff merely requested accommodations or complained about discriminatory and harassing treatment against him and attempts to misrepresent Plaintiff as mentally unwell.” (Opp. 17: 9-13.)

Plaintiff argues that he has suffered “severe and pervasive” harassment—his evidence, however, fails to demonstrate it. Plaintiff’s separate statement only makes reference his own declaration. (See P’s Separate Statement of Undisputed Material Facts, ¶¶ 19-22.) In that declaration, Plaintiff states he was “harassed due to [his] disability and due to [his] medical conditions, both physical and psychological.” (Mata Decl. ¶ 24.) At his deposition, however, Plaintiff could not recall hearing anyone make negative comments about his medical conditions, and could not recall anyone treating him differently on account of his medical conditions. (SSUMF ¶ 37.)

Plaintiff also points to him having to take the mandatory EKG exam as harassment. The only examples of “harassment” unique to Plaintiff appear to be the alleged conduct by fellow employee Sarah Kwan, when she gave Plaintiff a “demeaning look and answered [him] in a blunt and rude manner,” and later when she made remarks about depression which Plaintiff believed were intended to “single [him] out.” (Mata Decl. ¶¶ 25, 26.) Plaintiff’s claim for harassment is thus supported only by his own perceptions, but with little competent evidence to corroborate the same.

Again, there is little doubt that Defendant has shown a compelling reason for imposing the EKG exam as a required competency exam for all nurses in the Coronary Care Unit. From Plaintiff’s evidence—which mainly consists of his subjective beliefs and one-off instances of “harassment:—this court cannot find that Plaintiff has created a reasonable inference of harassment such that a reasonable trier of fact could find for Plaintiff on this cause of action. Thus, Plaintiff has failed to carry his burden. See, e.g., Huitt v. Southern California Gas Co., (2010) 188 Cal.App.4th 1586; Trujillo v. First American Registry, Inc., (2007) 157 Cal.App.4th 628.

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.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359.)

As framed by the pleading, Plaintiff alleges he suffered from a disability and was terminated or suffered “other adverse employment actions” for engaging in the following protected activities: “seeking reasonable accommodations for his disability”; “attempting to engage in a timely good-faith interactive process,” “exercising his rights to take a leave of absence,” and “exercising his right to report any form of harassment or discrimination to his current or former employer.” (SAC ¶¶ 75, 76, 77.)

This shifts the burden to Plaintiff. Plaintiff notes that he brought “numerous grievances” against his coworkers. (Mata Decl. 20.) He “believe[s] that Kaiser's supervisory employees wanted to get revenge” against him for filing these grievances, but “were afraid to do so openly since they knew it could potentially expose them to litigation.” (Id.) He contends that Defendant therefore used the EKG Exam as a pretext to fire him. (Id.)

Plaintiff also states he had false accusations leveled at him by Kaiser's supervisory employees with the intent to retaliate against him for filing grievances. (Mata Decl. ¶ 21.) He also believes employees “intended to retaliate against [him] for having requested medical leaves.” (Id. ¶ 22.) Finally, he believes he was retaliated against “for requesting accommodations for [his] disability and complaining about Kaiser's failure to engage in a meaningful interactive process.” (Id. ¶ 30.) (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1043 [“It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA.”].)

It appears the only actionable retaliation that Plaintiff can claim as retaliatory is that Defendant forced him to take the EKG Exam. The other actions—single instances of demeaning glances by a coworker, co-workers walking in on Plaintiff’s break, etc.—are “[m]inor or relatively trivial adverse actions or conduct by…fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee,” and thus “cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable.” (Yanowitz, supra, 36 Cal. 4th at 1054–55.)

Plaintiff cannot show a causal link between the EKG exam and his “seeking reasonable accommodations for his disability”; “attempting to engage in a timely good-faith interactive process,” “exercising his rights to take a leave of absence,” or “exercising his right to report any form of harassment or discrimination to his current or former employer.” Similarly, Plaintiff has presented no competent evidence that imposition of the EKG exam was a pretextual maneuver to terminate him. (See Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479 [“Pretext may ... be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination.”].) Indeed, there can be no doubt that Defendant has shown a strong and legitimate reason for imposing the EKG exam. Plaintiff’s evidence, which mainly consists of his subjective beliefs of retaliation, cannot establish a triable issue of retaliation. Thus, Plaintiff has failed to carry his burden. See, e.g., Huitt v. Southern California Gas Co., (2010) 188 Cal.App.4th 1586; Trujillo v. First American Registry, Inc., (2007) 157 Cal.App.4th 628.

Again, to make a prima facie case for FEHA discrimination, “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.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355.)

Plaintiff alleges he “is a Brown Filipino American.” (SAC ¶ 84.) Plaintiff “believes that his race, the color of his skin, and his national origin as a Filipino was a substantial motivating factor” for Defendant’s “harassment, abusive conduct, bullying[,] ridicule,” and his eventual termination. (Id. ¶¶ 85, 86.) Likewise, Plaintiff alleges he “is of Filipino descent.” (SAC ¶ 92.) Defendant subjected Plaintiff to unwanted harassment, taunts and name calling, and ridicule “due to his Filipino heritage. (Id. ¶¶ 93, 94.) Defendant’s conduct “interfered with Plaintiffs work performance and it created an intimidating, hostile, and offensive working environment.” (Id. ¶ 95.)

In his declaration, Plaintiff states he was “harassed due to [his] race and national origin,” which was “substantially motivated by the fact that [he is] Filipino” and speaks with an accent. (Mata Decl. ¶ 31.) However, Plaintiff has not presented any evidence of harassment or discrimination on account of his race, aside from the few instances of slights by his coworkers that he attributes to his race or national origin. Plaintiff also stated in deposition, apparently without corroboration, that Kaiser discharged a number of Filipino nurses, who were replaced by “either white or black American[s].” (SSDMF 121; P’s Depo. Vol. II at p. 389.) However, of the two Filipino employees Plaintiff could reference, he conceded he did not know why they were terminated. (Id. at 380, 89.)

Absent is any other evidence to corroborate his beliefs. “The employee's ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’ [Citation.]” (Foroudi, supra, 57 Cal. App. 5th at 1007-08.) Plaintiff has therefore failed to carry his burden. See, e.g., Huitt v. Southern California Gas Co., (2010) 188 Cal.App.4th 1586; Trujillo v. First American Registry, Inc., (2007) 157 Cal.App.4th 628.

A claim for wrongful discharge in violation of public policy requires the employee to prove (1) he or she was employed by the employer, (2) the employer discharged the employee, (3) the alleged violation of public policy was a motivating reason for the discharge, and (4) the discharge caused the employee harm. (Haney v. Aramark Unif. Servs. Inc. (2004) 121 Cal. App. 4th 623.)

Plaintiff alleges “in or about July 2020 and August 2020,” Defendant “effectively terminated” his employment “by refusing to permit him to return to work” because he failed the Prophecy Exam. (SAC ¶ 103.) Plaintiff alleges, however, that Defendant had not “permitt[ed] him to inspect the results to determine if this was in fact true.” (Id.) Plaintiff further alleges that Defendant required Plaintiff to take the Exam “despite not being a requirement for registered nurses.” (Id. ¶ 104.) Plaintiff also alleges that the exam requirement had not been “imposed on a fellow Caucasian White employee” who kept his or her job as a registered nurse “despite not having been compelled to take the Prophecy Exam.” (Id. ¶ 104.) Plaintiff alleges his “complaints about the harassment, discrimination, and retaliation he faced while employed with Defendants, including their attacks on him for his Filipino identity and his brown skin, as well as the harassment, ridicule, and humiliation he had endured while employed with KAISER, was a substantial motivating reason for Plaintiff's discharge from his employment.” (Id. ¶ 105.)

Assuming that Plaintiff has been terminated or discharged as required to support the cause of action, it otherwise fails for the same reasons his discrimination, retaliation, and harassment causes of action do. Plaintiff has not presented evidence by which a reasonable trier of fact could conclude that any public policy violation was a motivating reason for Plaintiff’s discharge. Therefore, Plaintiff cannot carry his burden. See, e.g., Huitt v. Southern California Gas Co., (2010) 188 Cal.App.4th 1586; Trujillo v. First American Registry, Inc., (2007) 157 Cal.App.4th 628.

As discussed herein, this court finds that Plaintiff has not carried his burden to show that a reasonable trier of fact could find that any discrimination, harassment, or retaliation occurred. Thus, the claim for failure to prevent the same fails. “[C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k)” for failure to prevent discrimination. (Dickson v. Burke Williams, Inc., (2015) 234 Cal. App. 4th 1307, 1314.)

“Whether an environment is hostile or abusive can be determined only by looking at all the circumstances. [Citation]. ‘These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other factor, may be taken into account, no single factor is required.’” (Jones v. Dep't of Corr. & Rehab. (2007) 152 Cal. App. 4th 1367, 1378.)

Plaintiff alleges he “was subject to harassment due to his disability and due to having complained about the racially motivated discrimination and harassment he was being subjected to by KAISER, its managers, and supervisors.” (SAC ¶ 117.) This included “ridicule and name-calling,” “frequent reprimands and criticisms without justification,” “false allegations,” “refusal to accommodate Plaintiff's disability,” and “refusal to engage in a good faith interactive process.” (Id. ¶¶ 118-120.)

Plaintiff has produced no evidence to create a triable issue. Absent some corroborating evidence aside from Plaintiff’s own perceptions, the acts Plaintiff complains of are objectively non-discriminatory and isolated. (See Jones, supra, 152 Cal. App. 4th at 1377–78 [“harassment cannot be occasional, isolated, sporadic, or trivial”].) Thus, as here, when a Plaintiff does “not produce evidence that the conditions she complained of were sufficiently severe or pervasive to constitute harassment,” summary judgment of the cause of action is appropriate. (Id. at 1378-79.)

Employment…because he is a male.” (SAC ¶ 135.) This discrimination included “abusive and harsh treatment, impugning his ability to perform her work duties, subjecting him to false accusations of workplace misconduct, and effectively terminating him from his employment by refusing to permit him to return to his workplace duties.” (Id. ¶ 134.)

Plaintiff attests he was “harassed due to [his] gender and because [he is] a male.” (Mata Decl. ¶ 32.) Plaintiff attests he had been “accused of speaking ‘loudly’ and [been] criticized for the tone of [his] voice.” (Id; SSDMF ¶ 172.) Plaintiff says he observed “that female employees at Kaiser were treated favorably compared to male employees.” (Id.)

However, Plaintiff has not presented any evidence of discrimination on account of his gender, aside from the few instances of slights by his coworkers that he attributes to his gender. There is no evidence to corroborate his beliefs. It bears repeating: “[t]he employee's ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’ [Citation.]” (Foroudi, supra, 57 Cal. App. 5th at 1007-08.) Plaintiff therefore cannot carry his burden. See, e.g., Huitt v. Southern California Gas Co., (2010) 188 Cal.App.4th 1586; Trujillo v. First American Registry, Inc., (2007) 157 Cal.App.4th 628.

Judge of the Superior Court

FN 1 - The issue of whether there is a “triable issue of material fact” created by the sworn testimony of Plaintiff claiming that Defendant refused to show him the “results’ of this test is a fair one. Plaintiff “believes” he passed the test. Defendant clearly states that he “failed” it several times. Indeed, this is the sole non-discriminatory basis for Plaintiff’s termination, per the Defendant. Plaintiff claims he requested the test results and was flatly refused. This potentially could raise issues as to whether this claimed failed “test result” was merely a pretext. See, PUMF, No. 26. This Court cannot find any pleading in which the Defendant responded to that particular claim. Did Plaintiff ever request these results in discovery? If so, when, and how? What was Defendant’s response to same? This issue is worthy of further discussion at the hearing.