Judge Robert B. Broadbelt, Case Number: 22STCV09281, Date: 2023-09-29 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 22STCV09281, Date: 2023-09-29 Tentative Ruling

MOVING PARTIES: Defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, The Permanente Medical Group, Inc., and Southern California Permanente Medical Group

(2) Defendants’ Ex Parte Application for Continuance of Trial and Related Deadlines

The court considered the moving, opposition, and reply papers filed in connection with the motion for summary judgment. The court considered the moving papers filed in connection with the ex parte application. No opposition papers to the ex parte application were filed.

The court rules on plaintiff Adriane Nolan’s evidentiary objections to the declaration of Corazon Nirona, filed on August 17, 2023, as follows:

The court rules on plaintiff Adriane Nolan’s evidentiary objections to the declaration of Poulyana Pazand-Srouji, filed on August 17, 2023, as follows:

The court rules on plaintiff Adriane Nolan’s evidentiary objections to the declaration of Maria Sulsona, filed on August 17, 2023, as follows:

The court rules on plaintiff Adriane Nolan’s evidentiary objections to the declaration of Kathryn Van Voltinburg, filed on August 17, 2023, as follows:

The court rules on defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, The Permanente Medical Group, Inc., and Southern California Permanente Medical Group’s evidentiary objections to the declaration of Ryan Fowler, filed on August 25, 2023, as follows:

The court sustains defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, The Permanente Medical Group, Inc., and Southern California Permanente Medical Group’s evidentiary objections to the declaration of Roberta Pryor, filed on August 25, 2023.

The court rules on defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, The Permanente Medical Group, Inc., and Southern California Permanente Medical Group’s evidentiary objections[1] to the deposition of plaintiff Adriane Nolan, filed on August 25, 2023, as follows:

The court overrules plaintiff Adriane Nolan’s objections to the reply papers because the substantive portions of the reply memorandum amount to 10 pages. (Cal. Rules of Ct., rule 3.1113, subd. (d).)

The court denies plaintiff Adriane Nolan’s request for judicial notice because the court may not rely on unpublished trial court orders in ruling on this motion. (Cal. Rules of Ct., rule 8.1115.)

The court denies defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, The Permanente Medical Group, Inc., and Southern California Permanente Medical Group’s request for judicial notice as to Exhibit A because the court may not rely on unpublished trial court orders in ruling on this motion. (Cal. Rules of Ct., rule 8.1115.)

The court denies defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, The Permanente Medical Group, Inc., and Southern California Permanente Medical Group’s request for judicial notice as to Exhibit B because it is not relevant to a material issue presented by this motion. (Malek Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 825 [“Any matter to be judicially noticed must be relevant to a material issue”].)

The purpose of a motion for summary judgment or summary adjudication “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.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

Defendants Kaiser Foundation Health Plan Inc. (“KFHP”), Kaiser Foundation Hospitals (“KFH”), Southern California Permanente Medical Group (“SCPMG”), and The Permanente Medical Group (“TPMG”) move the court for an order granting summary judgment in their favor and against plaintiff Adriane Nolan (“Plaintiff”) on her Complaint, or, in the alternative, granting summary adjudication as to each cause of action alleged in the Complaint and as to her claim for punitive damages.

Defendants argue that Plaintiff cannot state any of her five causes of action against defendants TPMG and KFH because those defendants neither employed Plaintiff nor denied her any position during the relevant period of time.

The court finds that Defendants have met their burden of showing that the causes of action against TPMG and KFH have no merit because Defendants have shown that an element of each cause of action (that TPMG and KFH employed Plaintiff) cannot be established.

Plaintiff’s first, second, third, and fifth causes of action are alleged under California’s Fair Employment and Housing Act (“FEHA”), which makes unlawful certain employment practices committed by employers.[2] (Gov. Code, § 12940, subds. (a), (h), (k).) Plaintiff’s fourth cause of action for whistleblower retaliation under Labor Code section 1102.5 prohibits retaliation by “[a]n employer, or any person acting on behalf of the employer . . . .” (Lab. Code, § 1102.5, subd. (b).)

Defendants present evidence showing that Plaintiff was employed first by KFHP as an Administrative Specialist IV during the period from September 23, 2013 through August 2, 2015, and second by SCPMG as an Imaging Support Specialist from August 3, 2015 to July 23, 2017, and as an Imaging Project Manager I from July 24, 2017 through April 1, 2022. (UMF Nos. 7-9; Def. Compendium of Evidence (“Def. COE”), Vol. 1, Ex. 4, Nirona Decl., ¶ 14.) Further, it is undisputed that Plaintiff “never applied to any job posting at TPMG or KFH between March 14, 2019, and April 1, 2022.” (Undisputed Material Fact (“UMF”) No. 32.) Thus, the court finds that Defendants have met their burden to produce evidence showing that Plaintiff was not employed by defendants TPMG and KFH.

The court finds that Plaintiff has not met her burden to show that a triable issue of material fact exists as to whether defendants TPMG and KFH may be held liable as her joint employers.

Plaintiff contends that the integrated enterprise test governs. That test, derived from federal labor case law, “has four factors: interrelation of operations, common management, centralized control of labor relations, and common ownership or financial control.” (Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 737, disapproved of on other grounds in Reid v. Google (2010) 50 Cal.4th 512, 524 (“Laird”).) In their motion, Defendants rely on Gopal v. Kaiser Foundation Health Plan, Inc. (2016) 248 Cal.App.4th 425 (“Gopal”), which provides for two conditions to apply joint enterprise liability: “(1) such a unity of interest and ownership that separate corporate personalities are merged, so that one corporation is a mere adjunct of another or the two companies form a single enterprise, and (2) an inequitable result if the acts in question are treated as those of one corporation alone.” (Gopal, supra, 248 Cal.App.4th at p. 432.)

Plaintiff refers to the following evidence in support of her opposition. First, Meisner testified that KFHP, KFH, and SCPMG share the same administrative offices in Southern California. (Pl. Appendix of Declarations and Exhibits (“Pl. Ex.”) Ex. H, Meisner Dep., p. 63:14-64:2.) Second, KFHP’s manager of consulting, Van Voltinburg, stated in their declaration that, at the time they were employed by KFHP as a Taleo Systems Analyst, they had the capability “to determine if an individual ha[d] applied to any posted job openings with any Kaiser entity, including SCPMG, as well as at KFHP, [KFH] and [TPMG.]” (Def. COE Vol. 2, Ex. 8, Van Voltinburg Decl., ¶¶ 3-4.) Third, Plaintiff points to the declaration of KFHP’s Vice President of Financial Planning & Analysis for the Southern California and Hawaii regions, Timothy Everett (“Everett”), submitted in connection with Defendants’ moving papers, in which Everett states that (1) the entities that make up the integrated health care system commonly referred to as Kaiser Permanente is, in Southern California, principally comprised by KFHP, KFH, and SCPMG; (2) SCPMG and KFH directly contract with each other for limited purposes relating “to structuring the cooperation or administration of discrete patient care activities for which SCPMG and KFH each have responsibility to KFHP, or for which liaison and cooperation are appropriate[;] and (3) SCPMG has voluntarily adopted certain human resources policies and procedures that are uniform across SCPMG, KFHP, and KFH. (Def. COE Vol. 2, Ex. 11, Everett Decl., ¶¶ 3, 6, 18-20.) Finally, Plaintiff points out that one of Defendants’ declarants, Sulsona, states that (1) she was formerly a temporary contract employee for KFH, but (2) has authenticated the documents maintained by KFHP. (Def. COE Vol. 2, Ex. 6, Sulsona Decl., ¶¶ 3, 8-9.)

In support of their moving papers, Defendants have submitted evidence arguing that they are separate entities and not Plaintiff’s joint employers. First, Everett states that (1) neither KFHP nor KFH has any ownership or partnership interest in SCPMG, and SCPMG has no ownership interest in KFHP or KFH, and (2) KFHP and KFH have no involvement in SCPMG’s partnership agreements, its board of directors, its governing bodies, maintenance of its financial books and records, including financial operations reports, balance sheets, and income statements, and does not pay taxes owed by SCPMG. (Def. COE Vol. 2, Ex. 11, Everett Decl., ¶¶ 12-14.) Further, KFHP and KFH do not issue IRS Form W-2s to SCPMG’s employees. (Id., ¶ 15.) Second, TPMG’s Senior Director of Human Resources, Michael McClure (“McClure”) states that TPMG (1) is not a parent or subsidiary of KFH or KFHP, (2) has a completely separate governing body from KFHP and KHF, and (3) has its own financial organization, processes and accountable financial executives from the finance organizations of KFHP and KFH. (Def. COE Vol. 1, Ex. 3, McClure Decl., ¶¶ 3, 10-12.)

The court finds that Plaintiff has not submitted evidence sufficient to show the existence of a triable issue of material fact as to whether the court may consider defendants TPMG and KFH to be her joint employers under both the test articulated in Laird and the test articulated in Gopal.

As set forth above, there are four factors of the Laird test: (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, (4) and common ownership or financial control. (Laird, supra, 68 Cal.App.4th at p. 737.) As to the interrelation of operations element, the court finds that Plaintiff has shown that there is some interrelation of operations since (1) defendants KFHP, KFH, and SCPMG make up the integrated healthcare system referred to as Kaiser Permanente, and (2) SCPMG and KFH contract with each other for certain limited purposes, including the administration of patient care activities. (Def. COE Vol. 2, Ex. 11, Everett Decl., ¶¶ 3, 6, 18-20; Laird, supra, 68 Cal.App.4th at p. 737.) The court, however, notes that this evidence does not include defendant TPMG, and thus does not show that TPMG may be considered Plaintiff’s joint employer under the Laird integrated enterprise test.

As to the element of common management, the court finds that Plaintiff has not shown that TPMG and KFH share common management with KFHP and SCPMG. (Laird, supra, 68 Cal.App.4th at p. 737.) The court notes that Plaintiff points to the fact that some employees of certain entities authenticate documents created by other entities. (Def. COE Vol. 2, Ex. 6, Sulsona Decl., ¶¶ 3, 8-9.) However, the court finds that this evidence, alone, is insufficient to show the existence of a triable issue of material fact as to whether Defendants share common management and, thus, as to whether TPMG and KFH may be considered joint employers of KFHP and SCPMG. As to the centralized control of labor relations element, Plaintiff points to the evidence showing that defendants SCPMG, KFHP, and KFH have adopted uniform human resources policies and procedures. (Def. COE Vol. 2, Ex. 11, Everett Decl., ¶ 20; Laird, supra, 68 Cal.App.4th at p. 737.) The court (1) notes that this does not include defendant TPMG, and (2) finds that this evidence is insufficient, alone, to show that a triable issue of material fact exists. As to the common ownership or financial control element, the only evidence to which Plaintiff cites in her opposition is that Defendants are interrelated entities that make up the integrated healthcare system commonly referred to as Kaiser Permanente. (PUMF No. 35; Laird, supra, 68 Cal.App.4th at p. 737.) The court finds that this evidence is insufficient, alone, to show a triable issue of material fact as to the existence of common ownership or financial control. Even if this evidence were sufficient to show the existence of a triable issue of material fact, the court has concluded, as set forth above, that Plaintiff has not shown that a triable issue of material fact exists as to the other three elements.

As set forth above, the Gopal joint enterprise liability test sets forth two factors: (1) a unity of interest and ownership that merges corporate personalities, and (2) an inequitable result will occur if the acts in question are treated as those of one corporation alone. (Gopal, supra, 248 Cal.App.4th at p. 432.) Plaintiff did not address Gopal in her opposition papers, and therefore did not address the second element of inequity if the court were to treat the wrongful acts and omissions as of KFHP and SCPMG alone.

The court further notes that, even if Plaintiff had met her burden to show the existence of a triable issue of material fact as to whether TPMG and KFH are her joint employers, the court has found, for the reasons set forth below, that all Defendants have met their burden to show that each cause of action has no merit.

It is an unlawful employment practice “[f]or an employer, because of the race . . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).) “The specific elements of a prima facie case [for discrimination] ‘may vary depending on the particular facts,’ but generally include evidence that the plaintiff: (1) was a member of a protected class; (2) was qualified for the position he or she sought or was performing competently in the position he or she held; (3) suffered an adverse employment action; and (4) was subject to some other circumstance suggesting discriminatory motive.” (Diego v. City of Los Angeles (2017) 15 Cal.App.5th 338, 350.)

Defendants contend that summary adjudication as to the first cause of action for race discrimination is warranted because (1) any claims before March 14, 2019 are barred by the statute of limitations; (2) Plaintiff cannot establish circumstances suggesting discriminatory motive; and (3) Defendants had legitimate, non-discriminatory reasons for their hiring decisions.

Defendants first argue, and request that the court adjudicate as issue number 1 in their notice of motion for summary adjudication, that Plaintiff’s causes of action for discrimination fail as to any claim that occurred before March 14, 2019 because they are barred by the statute of limitations. (Notice of Mot., p. 2:15-17.) While the court notes that this issue not one that the court may adjudicate separately on motion for summary adjudication since it would not “dispose of a cause of action” in its entirety, the court considers this evidence and argument in support of Defendants’ contention that the adverse employment actions that are within the statute of limitations are insufficient to support Plaintiff’s causes of action for discrimination for other reasons. (Code Civ. Proc., § 437c, subd. (f)(1).)

The court finds that Defendants have met their burden of showing that the first cause of action for discrimination based on race has no merit because Defendants have shown that they had legitimate, non-discriminatory reasons for their hiring decisions. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926 [to satisfy burden on summary judgment in an employment discrimination case under McDonnell Douglas, “a defendant employer must either undermine an element of the plaintiff’s prima facie case—by affirmatively negating it or showing the plaintiff cannot prove it—or provide a legitimate nondiscriminatory reason for the adverse employment action”].)

As set forth above, Plaintiff was employed by (1) defendant KFHP from September 23, 2013 to August 2, 2015, and (2) defendant SCPMG from August 3, 2015 to April 1, 2022. (UMF Nos. 7-9.) Plaintiff filed her Department of Fair Employment and Housing Complaint on March 14, 2022, and filed this action on March 16, 2022. (UMF No. 1; Def. COE Vol. 2, Ex. 10, Novell Decl., Ex. A [complaint of discrimination filed with the Department of Fair Employment and Housing dated March 14, 2022; Compl.)

“A complaint alleging . . . any other violation of Article 1 (commencing with Section 12940) of Chapter 6 shall not be filed after the expiration of three years form the date upon which the unlawful practice or refusal to cooperate occurred.” (Gov. Code, § 12960, subd. (e)(5).) Thus, Plaintiff’s claims of discrimination lapsed as of March 14, 2019 (i.e., three years before the date that Plaintiff filed her complaint with the Department of Fair Employment and Housing).

Defendants present evidence showing that, for the period of time between March 14, 2019 through the present, Plaintiff applied to eight job postings with SCPMG and KFHP. (Def. COE Vol. 1, Ex. 4, Nirona Decl., ¶ 20, Ex. 2a.) Of those eight postings, Plaintiff declined to proceed with four.

First, Plaintiff applied to the Site Administrator position (Req. No. 860839) on January 21, 2020. (Def. COE Vol. 1, Ex. 4, Nirona Decl., ¶ 21.) The next day, KHFP cancelled this requisition and matched candidates to requisition number 856046; thereafter, candidates, including Plaintiff, were invited to apply to requisition number 880308. (Ibid.) Plaintiff did not accept the invitation to apply to requisition number 880308 and therefore did not file an application for the position labeled as requisition number 880308. (Ibid.)

Second, the job postings associated with requisition numbers 860839 and 856046 were cancelled and never filled. (Ibid.)

Third, Plaintiff applied for the Senior Program Manager Experience and Education – National Equity, Inclusion, and Diversity position (Req. No. 969758), but the assigned recruiter cancelled the requisition one month later. (Def. COE Vol. 1, Nirona Decl., ¶ 23.) This position was reposted as Senior Program Manager Experience and Ed’n NEID (Req. No. 995085), but Plaintiff “did not submit an application to [Senior] Program Manager Experience and Ed’n NEID (Req. No. 995085).” (Id., ¶ 24; Def. COE Vol. 2, Pazand-Srouji Decl., ¶ 8 [“KFHP’s records do not reflect that [Plaintiff] applied to the new Senior Program Manager Experience & Ed’n NEID (Req. No. 995085) position”].) Fourth, Plaintiff indicated that she “Ha[d] Declined” the requisition for requisition number 845010. (Def. COE Vol. 1, Nirona Decl., ¶ 27.)

Two of the remaining four job openings for the positions of Equity, Inclusion & Diversity Coordinator (Req. No. 859772) and Consultant (Req. No. 826549), to which Plaintiff applied, were coded as rejected because she did not meet the preferred qualifications. (UMF No. 44; Def. COE Vol. 1, Ex. 4, Nirona Decl., ¶¶ 25 [Plaintiff was rejected for Equity, Inclusion & Diversity Coordinator position because she did not meet preferred qualifications as to “Work Experience”], 29 [Plaintiff was rejected for the Consultant position with SCPMG because she did not meet preferred qualifications as to “Other job related skills and/or competencies”].) As to the Equity, Inclusion & Diversity Coordinator position, the recruiter (1) determined that Plaintiff was overqualified because it was considered to be an entry-level position, Plaintiff had salary expectations “much higher than the midpoint for this” type of position and thus would have required Plaintiff to take a pay-cut, and (2) therefore dispositioned Plaintiff. (Def. COE Vol. 2, Ex. 6, Sulsona Decl., ¶¶ 4, 7 [“When a candidate expresses a salary expectation that [the recruiter] understand[s] to be significantly higher than the mid-point provided by the hiring manager, [the recruiter] disposition[s] them”].) As to the Consultant position, the recruiter determined that Plaintiff did not meet the technical experience specified by the hiring manager and, in particular, “did not show on her resume that she had any experience in the Health Connect System, which was an additional requirement for this role.” (Def. COE Vol. 1, Ex. 1, Cannizzaro Decl., ¶¶ 4, 8.) The recruiters assisting with hiring for these positions did not know Plaintiff’s race. (Def. COE Vol. 1, Ex. 1, Cannizzaro Decl., ¶¶ 4, 9 [recruiter assigned to assist with hiring for the Consultant position was not aware of Plaintiff’s race at the time her application was rejected]; Def. COE Vol. 2, Ex. 6, Sulsona Decl., ¶¶ 4, 10 [recruiter assigned to assist with hiring for the Equity, Inclusion & Diversity Coordinator position “was not aware of” Plaintiff’s race at the time her application was rejected].)

The two remaining job listings were posted by defendant KFHP for the positions of Business Consultant (Req. No. 784620) and Departmental Business Consultant (Req. No. 789041), and Plaintiff’s applications reached manager review. As to the Business Consultant position, Plaintiff’s application was coded as rejected because her application did not meet the preferred qualifications for “Work experience[.]” (UMF No. 37; Def. COE Vol. 1, Ex. 4, Nirona Decl., ¶ 31.) Although Plaintiff reached the manager review step for this position, she was rejected for not meeting those qualifications and the hiring manager did not review her application. (Def. COE Ex. 2, Hyderi Decl., ¶¶ 3, 7.) As to the Departmental Business Consultant position, Plaintiff’s application was advanced to the “Manager Review” step, but she was ultimately not selected. (UMF No. 41; Def. COE Vol. 1, Ex. 4, Nirona Decl., ¶ 30.) KFHP’s hiring manager assistant for this requisition concluded that (1) Plaintiff’s previous experience was not particularly relevant for that role, and (2) other applicants, including the successful applicant, had the relevant experience that KFHP was seeking to a degree that Plaintiff did not. (Def. COE Vol. 2, Ex. 9, Park Decl., ¶¶ 7-8.) The recruiters for this position were unaware of Plaintiff’s race. (Def. COE Vol. 2, Ex. 9, Park Decl., ¶ 9.)

Thus, based on the evidence set forth above, the court finds that Defendants have shown that Defendants had legitimate, non-discriminatory reasons for their hiring decisions, because, of the eight jobs that Plaintiff applied for during the relevant time period, (1) Plaintiff did not proceed with the application process of four (including those job postings that were cancelled and re-listed under different requisition numbers); (2) two of the applications were screened out for failing to meet preferred qualifications; and (3) the remaining two applications were denied because the candidates selected better fit the qualifications for those positions.

The court finds that Plaintiff has not met her burden to show that a triable issue of material fact exists as to whether Defendants’ proffered reasons for their hiring decisions are pretextual.

As a threshold matter, the court finds that Plaintiff has not shown that a triable issue of material fact exists as to whether the statute of limitations bars her claims before March 14, 2019 pursuant to the continuing violations doctrine because Plaintiff has not shown that Defendants’ acts in declining to extend offers of employment did not acquire a degree of permanence.

“[T]he continuing violation doctrine ‘allows liability for unlawful . . . conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period.’” (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1124.) An employer’s unlawful acts may constitute continuing violations if those actions are “(1) sufficiently similar in kind . . . ; (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence.” (Richards v. CH2m Hill, Inc. (2001) 26 Cal.4th 798, 823.)

Plaintiff asserts that she applied for 162 jobs within Kaiser, yet received no offers. (Pl. Ex. A, p. PLAINTIFF000087 [email from Plaintiff stating that she “applied to 162 postings to advance [her] career unsuccessfully”].) She contends that, because she “remained optimistic for several years during her employment at Kaiser about the prospects of landing a job that advanced her career[,]” Defendants’ actions did not acquire a degree of permanence. The court disagrees.

“Permanence” means “that an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation” to address the unlawful actions “will be futile.” (Richards, supra, 26 Cal.4th at p. 823.) Here, Defendants’ acts in declining to extend offers of employment to Plaintiff and, in some instances, offering the jobs to other individuals, were complete and permanent acts. (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1128 [“There can be no other conclusion . . . but that City’s independent promotion decisions each became permanent when a different applicant was put in the position”], 1129 [“The fact that [plaintiff] continued to apply for promotions in response to new openings does not establish a lack of permanence as to his past applications; we decline to hold his conduct in applying for future jobs revived his claims of [unlawful employment practices] for the City’s prior decisions”].)

The court therefore considers whether Plaintiff has met her burden to show the existence of a triable issue of material fact as to whether Defendants’ hiring decisions in connection with the eight applications that she submitted since March 14, 2019 were pretextual.

The court finds that Plaintiff has not met her burden to submit evidence sufficient to show the existence of a triable issue of material fact as to whether Defendants’ hiring decisions were pretextual. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861 [if employer meets its burden to show that the adverse employment action is based on legitimate, nondiscriminatory factors, “the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action’”].)

Plaintiff appears to, primarily, rely on “me too” evidence in order to show the existence of discriminatory animus. The court recognizes that such evidence may be relevant to this inquiry. “Where evidence of workplace discrimination is proffered to cast doubt on an employer’s stated justification for an adverse employment action, for example, ‘me too’ evidence can be admissible to show intent or motive, which could establish that the employer’s stated reason was a pretext.” (Pinter-Brown v. Regents of University of California (2020) 48 Cal.App.5th 55, 96.) The court also recognizes that Plaintiff has submitted the declaration of Fredrick D. Lee II (“Lee”), in which he states that (1) he is employed by Kaiser Permanente; (2) he is Black; (3) he was not promoted or hired for any of the 25 jobs to which he applied, despite being qualified for thos jobs; and (4) after he filed a race discrimination complaint against Kaiser, a slideshow listed his name as “Frederick Douglass[,]”a racially-motivated reference. (Pl. Ex., Lee Decl., ¶¶ 1-2, 4, 7.) However, the court finds that this evidence is not sufficient to show that a triable issue of fact exists as to discriminatory animus or pretext, because Plaintiff has not submitted evidence showing that the individuals who were involved in the racially offensive slideshow regarding Lee were the same individuals that (1) were involved in making the hiring decisions regarding Plaintiff, or (2) worked in the same department as Plaintiff or were connected to Plaintiff in any manner.

Further, although Plaintiff has argued that Defendants have settled a class action lawsuit, their election to settle a lawsuit is not equivalent to an admission that their conduct was discriminatory and unlawful. (Opp., p. 5:13-24 [asserting that Defendants settled the class action case entitled Stewart v. Kaiser Foundation Health Plans, Inc., et al., San Francisco County Superior Court No. CGC-21-590966].)

The court also notes that Plaintiff argues that there is a dispute as to issues with Plaintiff’s Internal Employee Portal (Taleo) profile.

In their moving papers, Defendants submitted evidence showing that (1) Plaintiff responded “no” on April 10, 2017 to the question regarding Defendants’ Principles of Responsibility (“POR”) and Plaintiff’s agreement to abide by those principles; (2) this update impacted nine of Plaintiff’s job submissions that were active as of April 10, 2017; (3) “only an applicant may change the responses to the POR and other disqualifying questions in their Taleo profile[;]” and (4) Plaintiff changed her response from “no” to “yes” on April 13, 2017, meaning that applications submitted after that date “would not be automatically dispositioned for answering the POR question incorrectly.” (Def. COE Vol. 1, Ex. 4, Nirona Decl., ¶¶ 15, 17, 19, 18; Def. COE Vol. 2, Ex. 8, Van Voltinburg Decl., ¶¶ 3 [Van Voltinburg was formerly a Taleo Systems Analyst], 10 [“only an applicant may change the responses to the POR and other disqualifying questions in their Taleo profile”].)

In contrast, Plaintiff testified that “[t]here [was] no way [she] would consciously check that box knowing that that is a requirement of remaining employed with the organization.” (Pl. Ex. G, Pl. Dep., pp. 220:21-221:15.) Instead, Plaintiff argues that someone working for Defendants, who had the authority to make changes on her profile, changed her response. (Pl. Ex. G, Pl. Dep., pp. 235:23-237:7.) However, the court finds that (1) Plaintiff has not introduced substantial evidence supporting her contention that someone changed the response to the POR question on her Taleo profile, and (2) even if Plaintiff had submitted such evidence, Plaintiff has not submitted substantial evidence to show the existence of a triable issue of material fact as to whether the person(s) who did so were motivated by discriminatory animus.

Thus, the court finds that Plaintiff has not met her burden to show the existence of a triable issue of material fact as to whether Defendants’ proffered reasons for their hiring decisions were pretextual or motivated by a discriminatory animus based on Plaintiff’s race.

The court therefore grants Defendants’ motion for summary adjudication as to the first cause of action for race discrimination.

It is an unlawful employment practice “[f]or an employer, because of the . . . age . . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).) “In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)

The court finds that Defendants have met their burden of showing that the second cause of action for age discrimination has no merit because Defendants have shown that they had legitimate, nondiscriminatory reasons for their hiring decisions. (Cornell, supra, 18 Cal.App.5th at p. 926.)

As with the first cause of action, Defendants argue that summary adjudication as to the second cause of action for age-based discrimination is warranted because (1) any claims before March 14, 2019 are barred by the statute of limitations; (2) Plaintiff cannot establish circumstances suggesting discriminatory motive; and (3) Defendants had legitimate, non-discriminatory reasons for their hiring decisions that were not based on Plaintiff’s age.

The court finds that, for the same reasons set forth above, (1) Plaintiff’s claims are limited to the time period of March 14, 2019 to the present, and (2) Defendants have met their burden to submit evidence showing that they had legitimate, non-discriminatory reasons to decline to offer to Plaintiff the jobs to which she applied during this time period because (i) Plaintiff did not proceed with the application process as to four of those jobs (including for job postings that were cancelled and re-listed under different requisition numbers), (ii) two of the applications were screened out for failing to meet preferred qualifications; and (iii) the remaining two applications were denied because the candidates selected better fit the qualifications.

The court finds that Plaintiff has not met her burden to show that a triable issue of material fact exists as to whether Defendants’ proffered reasons for their hiring decisions were pretextual or motivated by discriminatory animus based on her age. (Serri, supra, 226 Cal.App.4th at p. 861.)

Plaintiff submits evidence showing the ages of the successful candidates for the positions for which she applied as follows: (1) the successful applicant selected for the Business Consultant position (Req. No. 784620) was 31 years old at the time of hire; (2) the successful applicant selected for the Departmental Business Consultant position (Req. No. 789041) was 34 years old at the time of hire; (3) the successful applicant selected for the Consultant position (Req. No. 826549) was 29 years old at the time of hire; and (4) the successful applicant selected for the Equity, Inclusion & Diversity Coordinator position (Req. No. 885580) was 23 years old at the time of hire.[3] (Pl. Ex. F.)

While the court notes that this might be sufficient to establish a prima facie case for age discrimination since the evidence of the successful applicants’ ages might show circumstances that give rise to an inference of unlawful discrimination, the court finds that this evidence is not sufficient to show that a triable issue of material fact exists as to whether Defendants’ proffered reasons for their hiring decisions were pretextual. (Sandell, supra, 188 Cal.App.4th at p. 321 [setting forth elements of prima facie age-based discrimination cause of action].) “[I]n the face of [a defendant’s] showing of nondiscriminatory reasons, [a plaintiff has the burden] to show there was nonetheless a triable issue that decisions leading to [the adverse employment action] were actually made on the prohibited basis of [her] age.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 360.) Here, Plaintiff has not presented sufficient evidence or argument to show that a triable issue of material fact exists that refutes Defendants’ showing that Plaintiff’s age was not the reason she was not offered the jobs. Thus, the court finds that Plaintiff has not met her burden to “‘demonstrate a triable issue by producing substantial evidence that’” Defendants’ stated reasons for their hiring decisions were pretextual or motivated by a discriminatory animus. (Serri, supra, 226 Cal.App.4th at p. 861.)

The court therefore grants Defendants’ motion for summary adjudication as to the second cause of action for discrimination based on age.

It is an unlawful employment 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.” (Gov. Code, § 12940, subd. (h).) “‘[T]o establish a prima facie case of retaliation under the 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.’” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879.)

The court finds that Defendants have met their burden of showing that the third cause of action for retaliation for conducted protected by FEHA has no merit because Defendants have shown that elements of the cause of action (i.e., (1) that some of the complaints Plaintiff made constitute protected activity, and (2) a causal link between the protected activity and Defendants’ actions) cannot be established.

Defendants identify five instances that make up the basis of Plaintiff’s retaliation claim: (1) Plaintiff’s complaint to Syed Samiullah (“Samiullah”); (2) Plaintiff’s complaint to Dr. Ronald Copeland (“Dr. Copeland”); (3) Plaintiff’s complaint to Human Resources and Talent Management about a glitch in the Taleo system; (4) Plaintiff’s complaint to Christian Meisner (“Meisner”); and (5) Plaintiff’s complaint to Irene Santiago (“Santiago”), Mohammad Malik (“Malik”), and Ana Lacayo (“Lacayo”). Defendants contend that these instances either do not constitute protected activity or occurred after the last date on which Plaintiff was rejected from a requisition.

First, Plaintiff testified that she did not recall whether she told Samiullah that she was not being offered the jobs to which she applied because of her age or race. (Def. COE Vol. 2, Ex. 10, Novell Decl., Ex. D, Pl. Dep., p. 100:13-24 [Plaintiff stated “I don’t recall” when asked if she “also t[old] [Samiullah] that I don’t believe I’m getting these jobs because of my age or my race?”].) Thus, the court finds that Defendants have shown that her conversation with Samiullah does not constitute a complaint opposing protected activity. (Gov. Code, § 12940, subd. (h).)

Second, Defendants submit the deposition testimony of Plaintiff, in which she stated that, in her conversations with Dr. Copeland, Long, Michelle Lineras, Dr. Cornwell, and Sandoval, she (1) told them that she was interested in advancing specifically in DEI, and (2) did not, in those initial conversations, tell them that she felt that she was being denied positions on the basis of her age or race. (Def. COE Vol. 2, Ex. 10, Novell Decl., Ex. D, Pl. Dep., 102:16-103:24.) Thus, the court finds that Defendants have shown that her initial conversations with these individuals do not constitute a complaint opposing protected activity. (Gov. Code, § 12940, subd. (h); Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 680 [“‘Although an employee need not formally file a charge in order to qualify as being engaged in protected opposing activity,’ and might adequately convey her message through ‘ “inartful, subtle, or circumspect remarks,” ’ the employee’s communications must ‘ “sufficiently convey [her] reasonable concerns that the employer has acted or is acting in an unlawfully discriminatory manner” ’”].)

The court notes that in the deposition testimony cited by Defendants, Plaintiff also testified that she “became [Santiago’s] direct report in 2019” and, thus, would “share with her whatever concerns [Plaintiff] had[,]” including that she “felt that [she] was being discriminated against . . . .” (Def. COE Vol. 2, Ex. 10, Novell Decl., Ex. D, Pl. Dep., 105:7-20.) However, it is unclear, from the evidence submitted by Defendants, whether Plaintiff sufficiently conveyed her concerns that Defendants were discriminating against her because of her race or age. (Ibid.; Mackey, supra, 31 Cal.App.4th at p. 680.) Instead, Plaintiff testified that she felt that she was “being discriminated against or in a toxic – or picked on,” and told Santiago that she “felt that [she] was being set up for failure in some of [her] projects . . . .” (Id., at p. 105:15-25.) Thus, while Plaintiff made complaints to Santiago beginning in 2019 about discrimination or being treated unfavorably, this testimony does not show that Plaintiff sufficiently conveyed that she was being discriminated against because of her protected characteristics (i.e., her race and age).

Third, Plaintiff made a complaint to Human Resources about a glitch in the Taleo system in May of 2017. (UMF No. 86.) Plaintiff’s complaint “did not mention race or age as the reason for her being rejected from” the requisitions to which she had applied. (Def. COE Vol. 2, Ex. 8, Van Voltinburg Decl., ¶ 7, Ex. A [May 4, 2017 email from Plaintiff].) Thus, the court finds that Defendants have shown that this complaint does not constitute a complaint opposing protected activity. (Gov. Code, § 12940, subd. (h); Mackey, supra, 31 Cal.App.5th at p. 680.)

Fourth, Plaintiff raised her concerns in an email to Meisner in a February 2022 email. (Def. COE Vol. 2, Ex. 10, Novell Decl., Ex. D, Pl. Dep., pp. 105:4-6, 121:20-24.) Specifically, Plaintiff stated that she believed that “the treatment [she’d] been subjected to is because of [her] race.” (Id., Ex. 35, p. PLAINTIFF000090].) The court finds that this complaint constitutes protected opposing activity. (Gov. Code, § 12940, subd. (h); Mackey, supra, 31 Cal.App.5th at p. 680.) However, Defendants have presented evidence showing that Plaintiff “has not applied to any requisitions with any Kaiser Entities since July 29, 2021” (i.e., before the date of Plaintiff’s February 2022 complaint). (Def. COE Vol. 1, Ex. 4, Nirona Decl., ¶ 20.) Thus, the court finds that Defendants have shown that they did not subject Plaintiff to an adverse employment action (i.e., by failing to extend an offer of employment for any of the requisitions she applied for) because of her February 2022 complaint. (Meeks, supra, 24 Cal.App.5th at pp. 878-879 [elements of FEHA retaliation claim].)

Finally, Plaintiff made a written complaint to Malik, Santiago, Lacayo, and Meisner at the time of her resignation. (UMF No. 94; Def. COE Vol. 2, Ex. 10, Novell Decl., Ex. D, Pl. Dep., Ex. 36, p. SCPMG_00000560 [March 21, 2022 resignation email from Plaintiff stating that the environment “promote[s] toxicity and micro-aggressive behaviors” which “contributed [to] a hostile work environment”].) The court finds that Defendants have shown that they did not subject Plaintiff to an adverse employment action (i.e., by failing to extend an offer of employment for any of the requisitions she applied for) because of her March 21, 2022 complaints made in her notice of resignation since Defendants did not deny any job applications submitted by Plaintiff after this time. (Def. COE Vol. 1, Ex. 4, Nirona Decl., ¶ 20.)

The court finds that Plaintiff has not met her burden to show that a triable issue of material fact exists (1) as to the element that some of her complaints constituted protected opposing activity, and (2) as to the element of causation and the existence of pretext as to the protected opposing activity.

First, Plaintiff does not dispute that she made a complaint, by email, to Meisner. (Opp., p. 16:24-25.) However, as set forth above, this complaint was made on February 9, 2022. (Def. COE Vol. 2, Ex. 10, Novell Decl., Ex. D, Pl. Dep., Ex. 35, p. PLAINTIFF000090.) Plaintiff has not set forth evidence or argument showing that a triable issue of material fact exists as to the element of a causal link between (1) Plaintiff’s February 9, 2022 complaint, and (2) Defendants’ decisions not to extend offers of employment to Plaintiff based on her employment applications that were submitted before that date, nor does Plaintiff meaningfully dispute that she did not apply to any other positions after that date. (Def. COE Vol. 1, Ex. 4, Nirona Decl., ¶ 20 [Plaintiff has not applied to any requisitions since July 29, 2021].)

Second, Plaintiff argues that she made complaints about discrimination between 2019 and February 2022. (Opp., pp. 16:27-17:2 [citing to Plaintiff Additional Fact No. 9].) Plaintiff cites to her own deposition testimony to establish the existence of her other, prior complaints as follows. (Pl. Additional Fact No. 9.)

Plaintiff testified that she had the belief that management or human resources employees were blackballing Plaintiff to prevent her from getting hired into new positions or being promoted, including because someone with a higher-level clearance changed the response on her Taleo profile. (Pl. Ex. G, Pl. Dep., Vol. I, p. 203:24-208:6.) However, this testimony does not show that Plaintiff made a complaint opposing practices forbidden under FEHA since Plaintiff did not testify that she complained that she was being blackballed because of her race or age. (Ibid.)

Plaintiff also testified that she raised concerns with Samiullah but does not appear to have specified when she made those complaints. (Pl. Ex. G, Pl. Dep., Vol. II, p. 93:13-21.) Plaintiff further testified that, in 2020 (following the George Floyd incident), Greg Adams, Meisner, and Dr. Copeland held a roundtable discussion in which they “heard that [Plaintiff’s] complaints were similar to others” and became aware of a systemic issue in the organization. (Id., p. 94:3-10.) The court notes that this testimony might imply that Plaintiff made complaints about discrimination based on her race and age in or around 2020. (Ibid.) However, for the four positions to which Plaintiff applied, individuals other than Greg Adams, Meisner, and Dr. Copeland made the hiring decisions. (Def. COE Vol. 1, Ex. 2, Hyderi Decl., ¶¶ 3 [Hyderi served as the hiring manager for Business Consultant (Req. No. 784620) position], 7 [Sulsona determined that Plaintiff did not meet the qualifications and therefore dispositioned Plaintiff]; Def. COE Vol. 1, Ex. 1, Cannizzaro Decl., ¶¶ 4 [Cannizzaro was recruiter assigned to assist with hiring for the Consultant (Req. No. 826549) position], 8 [Cannizzaro dispositioned Plaintiff for failing to meet the technical experience specified by the hiring manager]; Def. COE Vol. 2, Sulsona Decl., ¶¶ 4 [Sulsona was the recruiter assisting with hiring for the Equity, Inclusion & Diversity Coordinator (Req. No. 859772) position], 7 [Sulsona dispositioned Plaintiff because she was overqualified]; Def. COE Vol. 2, Ex. 9, Park Decl., ¶¶ 3 [Park was the hiring manager assistant for the Departmental Business Consultant (Req. No. 789041) position], 8 [Park concluded that other applicants had the relevant experience sought for this position].)

Next, when asked if she complained to anyone other than Meisner that she was denied positions or treated unfairly because of her race or age, Plaintiff testified that she made a complaint through HR with Lacayo and Malik and “made that known to” Santiago. (Pl. Ex. G, Pl. Dep., Vol. II, pp. 103:25-104:13.) As to Santiago, Plaintiff testified that she shared her concerns “[t]hroughout[,]” i.e., after the time that Plaintiff became her direct report in 2019. (Id., p. 105:7-10.) However, as set forth above, Plaintiff testified that she told Santiago that she felt “that [she] was being discriminated against or in a toxic – or picked on” and was being set up for failure in some of her projects. (Id., p. 105:12-24.) She further stated that she did not recall whether she specifically raised concerns that she was being denied positions because of her age or race. (Id., p. 107:5-14.) Thus, the court finds that Plaintiff has not shown that she sufficiently conveyed her reasonable concerns that Defendants acted in an unlawfully discriminatory manner as to their hiring decisions with these remarks. (Mackey, supra, 31 Cal.App.5th at p. 680.)

As to Malik, Plaintiff testified that she went to him and “told him the issues that [she] was having in MITI, and [she] felt that some of those were because of [her] gender and [her] race and possibly age” at some point in time after he became executive director in 2021. (Pl. Ex. G, Pl. Dep., Vol. II, pp. 108:12-18, 108:23-109:10.) However, as to whether Plaintiff complained to Mailk about whether she was being denied positions because of her age or race, Plaintiff stated that she did not “recall outside of MITI issues.” (Id., pp. 109:19-110:4.) Thus, it appears that Plaintiff did not sufficiently convey to Malik her reasonable concerns that Defendants acted in an unlawfully discriminatory manner as to their hiring decisions with these remarks, since her complaints about Defendants’ discriminatory conduct centered on issues with MITI. However, even if Plaintiff did make formal complaints with Malik about Defendants’ discriminatory hiring practices, Plaintiff has not disputed that other decisionmakers were involved in making the decisions not to hire her for the positions to which she applied, namely, Hyderi, Sulsona, Cannizzaro, and Park. (Def. COE Vol. 1, Ex. 2, Hyderi Decl., ¶¶ 3, 7; Def. COE Vol. 1, Ex. 1, Cannizzaro Decl., ¶¶ 4, 8; Def. COE Vol. 2, Ex. 6, Sulsona Decl., ¶¶ 4, 7; Def. COE Vol. 2, Ex. 9, Park Decl., ¶¶ 3, 8.) Further, those decisionmakers have stated that they were unaware of Plaintiff’s complaints, and Plaintiff has not submitted evidence showing the existence of a triable issue of material fact as to whether they had knowledge of her complaints to Malik. (Def. COE Vol. 1, Ex. 1, Cannizzaro Decl., ¶ 9 [“I was not aware of [Plaintiff’s] age, race or complaint(s) (if any) at the time I made the decision to reject her application]; Def. COE Vol. 1, Ex. 2, Hyderi Decl., ¶ 11 [“At the time I made the decision to hire the successful candidate, I was not aware of [Plaintiff’s] age or race, or any prior complaint(s) she made”]; Def. COE Vol. 2, Ex. 6, Sulsona Decl., ¶ 10 [“I was not aware of [Plaintiff’s] age, race, or any prior complaint(s) at the time I made the decision to reject her application”]; Def. COE Vol. 2, Ex. 9, Park Decl., ¶ 9 [“At the time I made the decision to disposition [Plaintiff], I was not aware of [her] age, race, or prior complaints”].)

As to Lacayo, Plaintiff asserts that she made a complaint in December 2019. (Pl. Ex. G, Pl. Dep., Vol. II, p. 110:7-13.) When asked about the details of Plaintiff’s complaint to Lacayo, she testified that Defendants wanted Plaintiff and two others to visit medical facilities during the height of the COVID-19 pandemic, with which she did not feel comfortable. (Id., p. 110:14-25.) Thus, the deposition testimony submitted by Plaintiff does not make clear that she made specific complaints to Lacayo that Defendants were acting in an unlawfully discriminatory manner as to their hiring decisions based on Plaintiff’s race and age. (Mackey, supra, 31 Cal.App.5th at p. 680.)

Plaintiff also testified that she spoke with Jerome Blackwell, her co-chair in Colorado, about “how [she] was unable to advance within the organization” because of her race or age. (Pl. Ex. G, Pl. Dep., Vol. II, p. 114:1-23.) However, Plaintiff has not provided evidence showing that Blackwell was a decisionmaker with respect to her job applications, and Blackwell does not appear to have such authority since Plaintiff testified that he was her “co-chair[.]” (Ibid.)

Finally, Plaintiff testified that she made complaints to Vanessa Bene that she was unable to advance her career “because of who [she] was as a person, [her] whole totality[,]” including “[her] age, [her] race, [her] voice.” (Pl. Ex. G, Pl. Dep., Vol. II, p. 157:15-22.) When asked if she told Bene that she was being discriminated against specifically because of her age or race, Plaintiff stated that she “believe[d] that [she] did.” (Id., pp. 157:23-18.) However, Plaintiff has not submitted evidence showing the existence of a triable issue of material fact as to whether Bene was a decisionmaker with respect to her job applications, or that any of the decisionmakers were aware of Plaintiff’s complaints to Bene. (Def. COE Vol. 1, Ex. 2, Hyderi Decl., ¶¶ 3, 7, 11; Def. COE Vol. 1, Ex. 1, Cannizzaro Decl., ¶¶ 4, 8, 9; Def. COE Vol. 2, Ex. 6, Sulsona Decl., ¶¶ 4, 7, 10; Def. COE Vol. 2, Ex. 9, Park Decl., ¶¶ 3, 8-9.)

Thus, the court finds that Plaintiff has not met her burden to show that a triable issue of material fact exists as to the element of causation and whether Defendants’ stated reasons for their hiring decisions were pretextual.

The court therefore grants Defendants’ motion for summary adjudication as to the third cause of action for retaliation for conduct protected by FEHA.

“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.” (Lab. Code, § 1102.5, subd. (b).) Thus, “[u]nder this statute, an employer cannot retaliate against an employee for disclosing information that the employee has reasonable cause to believe reveals a violation of a local, state, or federal law.” (Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 371.)

The court finds that Defendants have met their burden of showing that the fourth cause of action for whistleblower retaliation has no merit because Defendants have shown that (1) an element of the cause of action (that an activity protected by Labor Code section 1102.5 was a contributing factor in Defendants’ hiring decisions) cannot be established, and (2) even if Plaintiff could establish a prima facie case for whistleblower retaliation, the alleged action would have occurred for legitimate, independent reasons. (Lab. Code, §§ 1102.5, subd. (b), 1102.6.)

As set forth above, Defendants have shown that the complaints made by Plaintiff that disclosed information of a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation (i.e., complaints of Defendants’ discriminatory conduct) were not a contributory factor in their decisions not to hire Plaintiff in connection with the eight relevant applications since Plaintiff was not selected for those positions on the grounds that (i) she did not proceed with the applications, (ii) she did not meet the preferred qualifications, or (iii) the other candidates selected better met Defendants’ requirements. (Lab. Code, §§ 1102.5, subd. (b), 1102.6.) The court finds that this evidence is sufficient to show (1) that Plaintiff cannot meet her burden to establish that her complaints were a contributory factor in Defendants’ decisions not to hire Plaintiff for the four applications she proceeded with, and (2) even if Plaintiff could meet her initial burden, Defendants have shown that the hiring decisions would have occurred for legitimate, independent reasons.

The court finds that Plaintiff has not met her burden to show that a triable issue of material fact exists (1) as to whether her protected activity was a contributing factor in Defendants’ hiring decisions, and (2) as to whether the hiring decisions would not have occurred for legitimate, independent reasons. (Lab. Code, § 1102.6.) As set forth above, Plaintiff did not meet her burden to submit evidence showing the existence of a triable issue of material fact as to (1) whether the protected complaints that she made were known to any of the decisionmakers as to the four applications she submitted, and (2) whether her complaints were considered and relied on by Defendants in deciding not to offer her those positions.

The court therefore grants Defendants’ motion for summary adjudication as to the fourth cause of action for whistleblower retaliation.

It is an unlawful employment practice “[f]or an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) “‘[C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k).’” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.)

The court finds that Defendants have met their burden of showing that the fifth cause of action for failure to prevent discrimination and retaliation has no merit because Defendant has shown that an element of the cause of action (valid underlying claims for retaliation and discrimination) cannot be established since the court has granted, for the reasons set forth above, Defendants’ motion for summary adjudication as to the first and second causes of action for discrimination and the third and fourth causes of action for retaliation. (Dickson, supra, 234 Cal.App.4th at p. 1314.)

The court finds that Plaintiff has not met her burden to show that a triable issue of material fact exists as to the element of valid, underlying claims for retaliation and discrimination for the reasons set forth in connection with the court’s ruling on Defendants’ motion for summary adjudication as to the first and second causes of action for discrimination and the third and fourth causes of action for retaliation.

The court therefore grants Defendants’ motion for summary adjudication as to the fifth cause of action for failure to prevent discrimination and retaliation.

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) “[O]n a motion for summary adjudication with respect to a punitive damages claim, the higher evidentiary standard applies. If the plaintiff is going to prevail on a punitive damages claim, he or she can only do so by establishing malice, oppression or fraud by clear and convincing evidence.” (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.) “Under the clear and convincing evidence standard, the evidence must be ‘ “ ‘ “so clear as to leave no substantial doubt” ’ ” ’ and ‘ “ ‘ “sufficiently strong to command the unhesitating assent of every reasonable mind. ” ’ ” ’ [Citation.] Although the clear and convincing evidentiary standard is a stringent one, ‘it does not impose on a plaintiff the obligation to “prove” a case for punitive damages at summary judgment [or summary adjudication].’” (Butte Fire Cases, supra, 24 Cal.App.5th at p. 1158 [internal citations omitted].) However, the court must take this higher standard of proof into account in ruling on a motion for summary judgment. (Ibid.)

Because the court has granted summary adjudication on all of the causes of action alleged in Plaintiff’s Complaint, the court finds that all of the papers submitted show that there is no triable issue as to any material fact and that Defendants are entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The court therefore grants Defendants’ motion for summary judgment.

Because the court’s ruling granting Defendants’ motion for summary judgment makes Defendants’ motion for summary adjudication on Plaintiff’s claim for punitive damages moot, the court does not address the motion for summary adjudication on that claim.

Defendants move the court, ex parte, for an order (1) continuing the date of trial in this action by 90 days (to March 4, 2024), and (2) continuing all related pretrial deadlines continued in accordance with the new trial date.

Because the court has granted summary judgment in favor of Defendants and against Plaintiff, the court denies as moot Defendants’ ex parte application.

The court grants defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, The Permanente Medical Group, Inc., and Southern California Permanente Medical Group’s motion for summary judgment on plaintiff Adriane Nolan’s Complaint.

The court orders defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, The Permanente Medical Group, Inc., and Southern California Permanente Medical Group to prepare, serve, and lodge a proposed judgment no later than 10 days from the date of this order.

The court sets an Order to Show Cause re entry of judgment for hearing on December 19, 2023, at 8:30 a.m., in Department 53.

The court orders that the Final Status Conference, scheduled for November 16, 2023, is vacated.

The court denies as moot defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, The Permanente Medical Group, Inc., and Southern California Permanente Medical Group’s ex parte application for continuance of trial and related deadlines.

[1] The court notes that the evidentiary objections to the deposition of Adriane Nolan are not numbered. The court has ruled on the objections in numerical order.

[2] The court notes that some unlawful employment practices are actionable as against labor organizations, employment agencies, person, apprenticeship training program, or any training program leading to employment. (Gov. Code, § 12940, subds. (h), (k).) However, Plaintiff has alleged that defendants KFH and TPMG are “covered employer[s] as defined in the FEHA, at California Government Code § 12926(d).” (Compl., ¶¶ 3-4 [italics in original].)

[3] The court notes that Plaintiff has submitted evidence showing that the successful applicants for the job postings associated with requisition numbers 845010, 880308, and 995085 were, respectively, 39 years old, 36 years old, and 48 years old at the time of hire. (Pl. Ex. F.) However, as set forth above, Plaintiff did not proceed with those applications. (Def. COE Vol. 1, Ex. 4, Nirona Decl., ¶¶ 27 [Plaintiff declined requisition number 845010], 21 [Plaintiff did not submit an application related to requisition number 880308], 24 [Plaintiff did not submit an application to requisition number 995085].)

ADRIANE NOLAN ; Plaintiff, vs. kaiser foundation health plan, inc. , et al.; Defendants.	Case No.:	22STCV09281

	Hearing Date:	September 29, 2023

	Time:	10:00 a.m.

	[Tentative] Order RE: (1) defendants’ motion for summary judgment or, in the alternative, summary adjudication (2) defendants’ ex parte application for continuance of trial date and related deadlines