Judge Teresa A. Beaudet, Case 19STCV36903 2022-08-17 Tentative Ruling

isabel folgado,

Plaintiff,

vs.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.

Defendants.

Case No.:

19STCV36903

Hearing Date:

August 17, 2022

Hearing Time: 2:00 p.m.

[TENTATIVE] ORDER RE:

DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION

On October 11, 2019, Plaintiff Isabel Folgado (“Plaintiff”) filed this employment action against Defendant The Regents of the University of California (“Defendant”).

On September 8, 2020, Plaintiff filed the operative Second Amended Complaint (“SAC”) asserting causes of action for (1) age discrimination in violation of FEHA, and (2) retaliation in violation of Government Code section 12940.

Defendant now moves for summary judgment, or in the alternative, summary adjudication. Plaintiff opposes.

The Court grants Defendant’s request for judicial notice. The Court grants Plaintiff’s request for judicial notice a to Exhibit 1, and denies the request as to Exhibits 2-4.[1]

Objections 3-8: As the Court sustains Defendant’s objection to Plaintiff’s “Exhibit 2” on the grounds that Plaintiff has provided no authentication of the deposition transcript, the Court finds that Defendant’s objections to portions of the transcript set forth in Objections Nos. 3-8 are moot.

Objections 10-15: As the Court sustains Defendant’s objection to Plaintiff’s “Exhibit 3” dated “March 10, 2???” on the ground that it is not signed under penalty of perjury, the Court finds that Defendant’s Objections Nos. 10-15 to portions of the document are moot.

Objection 17: As the Court sustains Defendant’s objection to Plaintiff’s “Exhibit 4” on the ground that it is not signed under penalty of perjury, the Court finds that Defendant’s Objection No. 17 is moot.

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid. .)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid. .) 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.)

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c(p)(2).)

In the SAC, Plaintiff alleges that she was hired by Defendant in or about 2004, and was employed by Defendant at the Ronald Reagan UCLA Medical Center. (SAC, ¶¶ 8, 16.) Plaintiff is a registered nurse and a member of the “CNA”[2] union. (SAC, ¶ 10.) She was born on March 21, 1964. (SAC, ¶ 10.)

On February 20, 2017, Plaintiff received a phone call ordering Plaintiff not to come to work for her twelve-hour shift. (SAC, ¶ 10.) Plaintiff learned that a “Traveller [sic] Registered Nurse” who was approximately 25 years old replaced her for this shift. (SAC, ¶ 10.) Plaintiff complained to management that she was denied the opportunity to work her February 20, 2017 shift, and was reimbursed her wages. (SAC, ¶ 10.)

On or about April 24, 2017, within approximately sixty days of Plaintiff complaining she was not allowed to work her February 20, 2017 shift, Plaintiff received a “Notice of Intent to Dismiss.” (SAC, ¶ 11.) Plaintiff was terminated effective May 12, 2017. (SAC, ¶ 11.)

In support of her first cause of action, Plaintiff alleges that “[a]s a result of the employer engaging in deceitful conduct in violation of Government Code 12940 by discriminating against Plaintiff based primarily on Plaintiff’s age and failing to comply with the Union contract, Plaintiff was denied the ability to work her twelve hour shift by Defendant on or about February 20, 2017.” (SAC, ¶ 20.) Plaintiff alleges that Defendant hired a “non-CNA Union” nurse who was approximately half Plaintiff’s age to replace Plaintiff on February 20, 2017. (SAC, ¶ 19.)

“It is an unlawful employment practice . . . (a) [f]or an employer, because of the . . . race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person . . . or to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).)

California applies the burden-shifting formula set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802,[3] under which a plaintiff must first establish a prima facie case of discrimination by showing that: (1) he or she was a member of a protected class, (2) he or she was qualified for and performing competently in the position he or she held, (3) he or she suffered an adverse employment action, and (4) conduct by the employer suggesting that it is more likely than not that the adverse employment action was due to a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) If the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut the presumption of discrimination by offering a legitimate nondiscriminatory reason for the adverse employment action. (Ibid. .) If the employer meets this burden, the presumption of discrimination disappears, and the burden shifts back to the plaintiff to produce evidence that the employer’s reasons for the adverse employment action were a mere pretext for discrimination. (Id. at p. 356.) “An employer’s burden can be met by producing evidence of one or more reasons for the adverse employment action that were ‘unrelated to unlawful discrimination.’” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1524.)

Defendant contends that Plaintiff’s first cause of action for age discrimination is without merit because Plaintiff cannot show (1) that she was competently performing in the position that she held; (2) that a single, canceled shift constitutes an adverse employment action; or (3) that Defendant’s termination of Plaintiff’s employment occurred under circumstances suggesting a discriminatory motive. Defendant also contends that Plaintiff’s first cause of action is without merit because Defendant had legitimate and nondiscriminatory reasons for its actions which Plaintiff cannot establish was a pretext for discrimination.

With regard to Plaintiff’s performance in her position, Defendant provides evidence that it received a number of complaints from patients’ family members and other nurses regarding Plaintiff’s poor performance and deficient patient care. (Defendant’s Undisputed Material Fact (“UMF”) Nos. 1-15.) The complaints about Plaintiff’s performance included numerous charting errors, complaints about Plaintiff not attending to the hygiene needs of her patients, and forgetting to administer patient medication or to perform lab tests. (Ibid.) Plaintiff was issued a Counseling Memo dated August 28, 2015 regarding Plaintiff’s deficient performance on June 29, 2015 and August 3, 2015. (UMF No. 4.) Plaintiff also was issued a Written Warning dated February 23, 2016 regarding charting errors made by Plaintiff on January 18, 2016. (UMF No. 7.) Plaintiff was suspended from her employment with Defendant from June 3, 2016 through June 6, 2016 due unsatisfactory performance related to the concerns raised by a patient’s family on or about May, 2016. (UMF No. 11.) Plaintiff was terminated from employment with Defendant effective May 12, 2017 due to Plaintiff’s unsatisfactory performance related to the concerns from a primary nurse on February 20, 2017, concerns raised by a “4ICU” patient’s family on February 26, 2017, and Plaintiff’s continuous poor performance. (UMF No. 15.) Defendant asserts that accordingly, Plaintiff cannot establish a prima facie case for discrimination.

Plaintiff does not present any admissible evidence in connection with her opposition to raise a disputed issue of material fact as to whether she was performing her duties in a competent manner. As Defendant notes, although Plaintiff attaches portions of a purported deposition transcript to the opposition, Plaintiff has provided no authentication of the deposition transcript. Plaintiff also provides a statement by her dated “March 10, 2???,” and referenced as “Exhibit 3,” which is not signed under penalty of perjury. Plaintiff’s July 2, 2022 letter referenced as “Exhibit 4” is also not signed under penalty of perjury. Code of Civil Procedure section¿2015.5¿defines a¿“declaration”¿as a writing that is signed, dated, and certified as true under penalty of perjury. “A party cannot avoid summary judgment based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.” (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524 (internal citation omitted).)

In addition, although Plaintiff asserts that Defendant’s UMF Nos. 2-4, 6, 8-10, 12-15, 18, 19, and 25 are “disputed,” Plaintiff fails to cite any admissible evidence in support of the purported “dispute.” As Defendant notes, other than a reference to Plaintiff’s inadmissible March 10 statement in response to UMF No. 6, Plaintiff provides no evidence to support her contention that any of Defendant’s UMFs are disputed. Code of Civil Procedure section 437c, subdivision (b)(3) provides, “[t]he opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed…Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Emphasis added.) Moreover, Plaintiff states in the opposition that “Plaintiff admitted she made a mistake in charting and needed to better follow the new charting system.” (Response to UMF No. 5.)

In light of the foregoing, the Court finds that Defendant has met its burden of showing that Plaintiff’s first cause of action for age discrimination is without merit, and that Plaintiff has failed to demonstrate that a triable issue of material fact exists as to this cause of action.[4]

“[I]n order to 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.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.’” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.) Protected activity includes opposing “any practices forbidden” under FEHA or filing a complaint, testifying, or assisting in any proceeding under FEHA. (Gov. Code, § 12940, subd. (h).)

In support of the second cause of action, Plaintiff alleges that she engaged in “protected activity” because she complained that she could not be replaced by a nonunion nurse. (SAC, ¶ 30.) As set forth above, Plaintiff alleges she was ordered not to come to work for a shift on February 20, 2017, and was replaced during this shift by a “Traveller [sic] Registered Nurse” approximately half Plaintiff’s age that was not a member of the “CNA Union.” (SAC, ¶¶ 10, 11.) Plaintiff alleges that approximately 60 days after complaining to Defendant of being replaced by a nonunion nurse, she received a Notice of Termination letter. (SAC, ¶ 30.) In addition, Plaintiff alleges that her union contract indicates that “[t]he University has the authority to discharge or take appropriate disciplinary action against a nonprobationary nurse for just cause,” and that “just cause” has been determined to require certain elements, including that substantial evidence of an employee’s guilt was obtained. (SAC, ¶¶ 31, 33.)[5]

Defendant asserts that Plaintiff’s retaliation cause of action fails because she did not engage in “protected activity” under FEHA and because there is no evidence of a causal link between her termination and her alleged protected activity. Defendant also asserts that it had legitimate, nonretaliatory reasons for its actions, which Plaintiff cannot establish was a pretext for retaliation.

Defendant contends that a complaint about employer actions like replacing a union nurse with a nonunion nurse or the differences of opinion about whether there was “just cause” to terminate an employee as the union contract requires are not protected activity under FEHA. In support of this assertion, Defendant cites to Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 372, 382, where the plaintiff, a former employee of the Recreation and Parks Department (the Department) of the City and County of San Francisco, contended that “the Department retaliated against him for his overall support and promotion of the rights of the disabled community.” The plaintiff attributed his failure to be rehired to his opposition to the relocation of a car show event, and stated he spoke in opposition to what he viewed as the elimination of a program benefitting the disabled community. (Id. at p. 382.) The Court of Appeal concluded that “none of these activities are protected for the purposes of the FEHA’s antiretaliation provision, because none of them express opposition to practices one could reasonably believe are unlawful under the FEHA.” (Ibid.) “[T]o be protected, an employee’s actions must oppose activity the employee reasonably believes constitutes unlawful discrimination.” (Id. at p. 383 [internal quotations and emphasis omitted].) The Court does not find that the protected activities alleged by the plaintiff in Dinslage are similar to the alleged protected activities here (i.e., that Plaintiff complained that her February 20, 2017 shift was canceled and that a younger nonunion nurse worked in her place.)

Next, Defendant asserts that Plaintiff cannot establish a causal connection between the alleged protected activity and her termination. It is undisputed that sometime after February 20, 2017, Plaintiff complained that her February 20, 2017 shift was canceled and a traveler/nonunion nurse worked in her place. (UMF No. 17.)[6] Defendant asserts that the evidence establishes that the performance issues that led to Plaintiff’s termination predated Plaintiff’s complaint about her canceled shift on February 20, 2017 by as much as 18 months. (See UMF Nos. 2, 3, 6, 10.)

Defendant contends that Plaintiff thus cannot establish a prima facie case of retaliation because she cannot establish a causal connection between her complaint about the canceled February 20, 2017 shift and the vast majority of the performance issues that lead to Plaintiff’s termination.

Defendant also asserts that even if Plaintiff established a prima facie case, Defendant had legitimate, nonretaliatory reasons for terminating Plaintiff, namely, her consistent and documented unsatisfactory performance. “Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation drops out of the picture, and the burden shifts back to the employee to prove intentional retaliation.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 91 (internal quotations and citations omitted).) As set forth above, Plaintiff provides evidence that it received a number of complaints from patients’ family members and other nurses regarding Plaintiff’s poor performance and deficient patient care. (UMF Nos. 1-15.)

In addition, Plaintiff fails to present any admissible evidence to show that Defendant retaliated against her for complaining that her February 20, 2017 shift was canceled and that a younger nonunion nurse worked in her place.

In light of the foregoing, the Court finds that Defendant has met its burden of showing that Plaintiff’s second cause of action for retaliation is without merit, and that Plaintiff has failed to demonstrate that a triable issue of material fact exists as to this cause of action.

For the foregoing reasons, Defendant’s motion for summary judgment is granted. The Court orders Defendant to file and serve a proposed judgment within 10 days of the date of this Order.

[1]The Court sustains Defendant’s objections to Plaintiff’s request for judicial notice. As Defendant notes, the “Exhibit 2” attached to Plaintiff’s request for judicial notice is not a copy of the SAC as Plaintiff states; it is portions of a deposition transcript.

[2]It appears this acronym refers to “California Nurses Association.” (See Mot. at p. 9:3.)

[3]((See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2.)

[4]Because the Court finds that Defendant has met its burden of demonstrating that Plaintiff cannot show she was competently performing in the position she held, and because Plaintiff has failed to establish a triable issue of material fact thereto, the Court finds it unnecessary to consider the merits of Defendant’s remaining arguments as to the first cause of action.

[5]As Defendant notes, Plaintiff appears to imply by these allegations that there was no just cause for her termination.

[6]See Plaintiff’s response to UMF No. 16. As Defendant notes, Plaintiff’s responses to certain of Defendant’s UMFs are misnumbered.

Superior Court of California

County of Los Angeles

Department 50