2015-00182090-CU-OE

Liz Negrete vs. The Regents of the University of Ca

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Berry, Rex Darrell

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of moving defendant’s 56 Undisputed Material Facts, which of plaintiff’s 10 Additional Material Facts and/or which of the objections to evidence will be addressed at the hearing. The parties should be prepared to point to specific admissible evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendant The Regents of the University of California’s (“UC”) motion for summary judgment or in the alternative, summary adjudication of the eight individual causes of action alleged by plaintiff as well as the claim for punitive damages is GRANTED, as follows.

Several of the opposition papers fail to comply with CRC Rule 3.1110(b)(1), (3) and (4).

Opposing counsel again failed to comply with CRC Rule 3.1350(g), requiring a single volume of evidence (including all declarations) with a table of contents when evidence exceeds 25 pages, and Rule 3.1350(f), requiring a response claiming a material fact is disputed to include reference to the exhibit, title, page, and line numbers so the court need not waste its limited resources scouring pages of evidence in an attempt to find the line(s) the opposition believes are relevant.

Opposing counsel again failed to comply with CRC Rule 3.1116(a), relating to the use of deposition testimony as an exhibit.

Factual Background

This action arises out of plaintiff’s employment with defendant UC in admissions for the latter’s emergency room. Plaintiff’s complaint filed on 7/22/2015 asserts eight causes of action for failure to reasonably accommodate (lactation), disability discrimination, failure to reasonably accommodate (allergies to perfumes), failure to engage in interactive process (allergies to perfumes), retaliation, violation of Civil Code §56 et seq. (Confidentiality of Medical Information Act), violation of right to privacy and violation of First Amendment Rights under Title 42 U.S.C. §1983.

In short, plaintiff received a demotion in April 2015 after an investigation concluded plaintiff likely made false allegations against her co-workers but plaintiff insists the true motivation for this demotion was her union activities. She also asserts a number of other claims in her complaint against UC.

Moving Papers. Defendant UC now moves for summary judgment/adjudication on the ground that each cause of action fails for various reasons and that plaintiff cannot present evidence sufficient to establish any triable issues of material fact, thereby entitling UC to judgment as a matter of law. As support for summary judgment/adjudication of the eight causes of action, defendant cites Undisputed Material Fact (“UMF”) Nos. 1-56.

Opposition. Plaintiff opposes the motion, arguing that she was a productive employee with a good attendance record, active in her union and had an acute sensitivity to perfumes which sometimes necessitated admission to the emergency room where she worked. However, the opposition insists many thought this sensitivity was “a joke” and “This skepticism, fueled by malice and hostility…, escalated to more than one employee invading [plaintiff’s] patient records, in violation of department policy and California law.” Plaintiff adds that despite her productivity, she was ultimately demoted and the question of whether this was the result of some illegal animus is for a jury to resolve after a trial on the merits. Still, the opposition appears to concede that summary adjudication of several of the causes of action is appropriate and that no punitive damages claim is actually being asserted against UC.

The opposition also contends that a number of the UMF offered by UC are “disputed” but in several instances, plaintiff failed cite any evidence whatsoever (see, Resp. to UMF Nos. 20, 24-25, 27, etc.) and thus, plaintiff must be reminded of the “Golden Rule” of summary judgment/adjudication: “If it is not set forth in the separate statement, it does not exist.” (See, Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 (italics in original).) In those instances where plaintiff did include a citation to evidence, she did not include any page/line citation for the evidence as required by CRC Rule 3.1350(f) and thereby caused a needless waste of finite judicial resources.

Finally, plaintiff also offered 10 of her own Additional Material Facts (“AMF”) claimed to create triable issues of fact precluding summary judgment/adjudication but these AMF, aside from being only arguably relevant to just two or three of the eight causes of action alleged, are insufficient to establish the existence of any triable issue of material fact which precludes summary adjudication of any cause of action. The gist of these AMF is that plaintiff has an acute sensitivity to perfumes and in November 2013, plaintiff’s supervisor sent an email prohibiting all perfumes in the department but some employees disobeyed the directive. Because these AMF are of no legal consequence

to the specific issues presented by this motion and/or to UC’s own liability on the alleged causes of action, these AMF need not be discussed further here.

Objections to Evidence

Plaintiff’s sole written objection is overruled. To the extent it is directed at UC’s UMF 20, it is overruled because objections are properly directed at evidence only. (See, CRC Rules 3.1352, 3.1354.) To the extent this objection is directed at the evidence cited in support of UC’s UMF 20, it is overruled because it fails to comply with CRC Rule 3.1354(b)(2) and (3), requiring that written objections to evidence state the page and line numbers of the material objected and also “quote or set forth the objectionable statement or material.”

To the extent plaintiff’s separate statement purports to include objections to some of UC’s UMF, such objections are overruled since objections are properly directed at evidence only, objections to evidence are to be set forth is a separate document providing the relevant page and line numbers of the material objected and quoting the objectionable material, and objections are not to be restated or reargued in the separate statement. (See, CRC Rules 3.1352, 3.1354.)

Defendant UC’s written objections to plaintiff’s evidence are sustained except for objection Nos. 1-4, each of which is overruled.

Analysis

Failure to Reasonably Accommodate (Lactation). UC contends this cause of action is barred by the statute of limitations since plaintiff admits her need for accommodation ended in December 2011, far more than year before this action was commenced on 7/22/2015, and also lacks merit since UC provided an accommodation for plaintiff. Coupled with plaintiff’s failure to dispute either contention, summary adjudication shall be granted on this first cause of action.

Disability Discrimination. According to the moving papers, this cause of action fails for three reasons:

1. The alleged “adverse employment actions” (i.e., a March 2014 notice of intent to dismiss plaintiff from employment which was later reduced to a 3-day suspension and the April 2015 notice of demotion) are subject to the exclusive jurisdiction of the Public Employment Relations Board (“PERB”) (UMF Nos. 7-23);

2. Plaintiff failed to timely exhaust administrative remedies for any conduct occurring before 7/18/2014 (UMF Nos. 13-38); and
3. Plaintiff cannot demonstrate that the April 2015 notice of demotion was the result of disability discrimination (UMF Nos. 9-44).

Since the court finds that defendant UC’s moving papers are sufficient to satisfy its initial burden under Code of Civil Procedure §437c(p)(2) with respect to this second cause of action as to each of the three grounds advanced, the question now is whether plaintiff has met her burden to produce admissible evidence sufficient to demonstrate the existence of at least one triable issue of material fact which precludes judgment as a matter of law in UC’s favor on the disability discrimination claim.

As to the first ground (i.e., exclusive jurisdiction of PERB), the opposition admits that

all of the UMF cited by UC are undisputed except Nos. 10, 20 and 21 but plaintiff has not cited admissible evidence which actually establishes any triable dispute over these three UMF. Plaintiff’s response to UMF Nos. 10 and 20 consist of nothing other than purported objections to the UMF and the supporting evidence but as noted above, all of plaintiff’s purported objections have been overruled for several different reasons. While the opposition does cite some evidence in response to UMF 21, it does not create any triable dispute over the fact that UC’s investigation revealed plaintiff likely fabricated complaints about her co-workers improperly wearing fragrances despite her sensitivity. Instead, plaintiff’s evidence merely tends to show she had a sensitivity to perfumes and the like, although this is in and of itself irrelevant to the question of PERB’s exclusive jurisdiction over the “adverse employment actions” on which this cause of action is based and thus, summary adjudication is warranted.

The opposition has failed to establish a triable issue of material fact as to either of the remaining two grounds advanced in this motion. The second ground is based on UMF Nos. 13-38 and plaintiff’s claim that several of these UMF are disputed is not borne out by the evidence, if any, cited in response. For instance, while the opposition characterizes UMF Nos. 24-25 and 27 as “disputed,” plaintiff cites no evidence and has therefore failed to demonstrate any triable issue relating to these three UMF. Likewise, the evidence offered in response to UMF 26 is of no legal consequence since California Supreme Court precedent confirms an employer’s reasons for taking action against an employee need not be correct, wise or prudent so long as the employer did not act with a motive to discriminate on account of one’s “protected” characteristics and/or conduct, with the upshot being that an employer cannot be liable for actions which were nothing more than foolish, imprudent or mistaken since this type of conduct is not prohibited by the FEHA. (See, Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 358.) The only evidence cited in response to UMF Nos. 29, 31-33 and 35-36 is the letters written by plaintiff’s doctor about her fragrance sensitivity but as noted above, there is no dispute over the existence of this sensitivity and UC’s efforts to reduce plaintiff’s exposure to same, including requesting employees avoid using fragrances in the workplace and installing an air filter in plaintiff’s work area.

The third ground cited for summary adjudication of the disability discrimination claim is that plaintiff cannot show that the April 2015 notice of demotion was the result of an intent to discriminate on account of plaintiff’s sensitivity to fragrances, relying on UMF Nos. 9-44. As shown above, there is no dispute over UMF Nos. 7-38 so the court need here consider only plaintiff’s response to UMF Nos. 39-44. The opposition contends UMF Nos. 42-43 are disputed but offers no evidentiary support. Plaintiff did cite evidence in response to UMF Nos. 40-41 and 44 but the gist of this evidence is that she had in fact been diagnosed as being allergic to fragrances, a point which does not create a triable issue of fact that precludes summary adjudication of this discrimination cause of action on the ground plaintiff cannot produce evidence tending to demonstrate the April 2015 notice of demotion was in some manner motivated by an intent to treat plaintiff differently because of her allergy to perfumes.

Failure to Reasonably Accommodate (Allergy to Perfumes). UC seeks summary adjudication of this cause of action because plaintiff failed to timely exhaust administrative remedies (UMF Nos. 28-35, 38) and regardless, UC engaged in the interactive process and also reasonably accommodated her disability at all times (UMF Nos. 28-35). The moving papers are sufficient to satisfy UC’s initial burden under Code of Civil Procedure §437c(p)(2) as to both of these grounds advanced, thereby successfully shifting to plaintiff the burden to produce admissible evidence sufficient to

create at least one triable issue of material fact mandating summary adjudication of the third cause of action. As shown above, the opposition has failed to produce admissible evidence to demonstrate any triable issue of material fact in connection with UMF Nos. 28-35 and 38 and consequently, UC is entitled to summary adjudication of the third cause of action as well.

Failure to Engage in Interactive Process (Allergies to Perfumes). UC maintains that summary adjudication must be granted on the fourth cause of action for the same two reasons cited in the preceding paragraph, relying on the same UMF mentioned above. Therefore, the court holds that summary adjudication is warranted on this interactive process claim as well.

Retaliation. According to the moving papers, this cause of action fails because the “adverse employment actions” alleged by plaintiff are subject to the exclusive jurisdiction of PERB (UMF Nos. 7-23) and because (2) plaintiff did not allege and cannot prove she engaged in any activity which is protected under the Fair Employment and Housing Act (“FEHA”) before the demotion in April 2015 but instead insists the demotion was in response to her union activities, something not protected under the FEHA (UMF Nos. 22-23, 38-44).

UC correctly points out that not all activity is “protected” under the FEHA and thus, not all activity can support a valid claim for retaliation under the FEHA. In particular, Government Code §12940(h) prohibits an employer from “discriminat[ing] against any person because the person has opposed any practices forbidden under this part [relating to the Department of Fair Employment and Housing] or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” ( Underline added for emphasis.) Yanowitz clarified that conduct which constitutes “protected activity” for purposes of the anti-retaliation provision of the FEHA includes not only when the employee opposes action that is ultimately found to by unlawfully discriminatory under the FEHA but also when the employee opposes action reasonably and in good faith believed to be discriminatory regardless of whether it is ultimately found to violate the FEHA, adding that “personal grievances” or “vague or conclusory remarks” that fail to put an employer on notice of some conduct which may be prohibited by the FEHA is not “protected activity.” (Yanowitz, at 1043, 1046-1047.)

Plaintiff’s own complaint itself fails to allege that plaintiff engaged in any activity which can be fairly construed as opposing either discrimination or some other conduct proscribed by the FEHA but instead merely asserts in Paragraph 112 that plaintiff “reported misconduct among her co-workers that endangered the public interest in maintaining an adequately-staffed, responsive and efficient Emergency Room.” This, however, is not conduct which triggers the protections afforded by the FEHA’s anti-retaliatory provision but even if it were protected by the FEHA, plaintiff has failed to offer admissible evidence sufficient to establish a triable issue of material fact relative to any of the UMF cited by defendant (i.e., Nos. 7-23 and 38-44). As a result, the court holds that plaintiff has failed to meet her burden of showing that UC is not entitled to judgment as a matter of law on this retaliation cause of action.

Violation of Civil Code §56 et seq. (Confidentiality of Medical Information Act). UC insists it is entitled to summary adjudication of this cause of action because plaintiff has no evidence her medical information was negligently disclosed or released by her employer, relying on UMF Nos. 45-54. In short, these 10 UMF indicate that despite UC’s “extensive policies” and annual training to maintain the confidentiality of patients’

“protected health information” (“PHI”), three of plaintiff’s co-workers improperly accessed plaintiff’s medical records and when UC learned of this, it conducted an investigation which culminated in the termination of one co-worker, a suspension of another and a written warning to the third, all for violation of UC’s policies. Coupled with the fact that all of opposition’s purported objections to evidence have been overruled, the court finds that UC’s moving papers are sufficient to shift to plaintiff the burden to produce evidence which creates a triable issue of material fact relative to the sole ground cited by UC.

The opposition admits UMF Nos. 46-47, 49-50 and 53 are all undisputed. With respect to UMF Nos. 45, 51 and 52, plaintiff’s response is limited to a claim that these three UMF are ‘not material’ but the opposition proffers no evidence which establishes the existence of any triable dispute in connection with these three UMF. The sole evidence cited by plaintiff in response to each of these UMF (Pl. Ex. 9 (8/12/2014 Ltr. to Pl.)) is essentially irrelevant to the substantive assertions found in UMF Nos. 45, 51 and 52. Although plaintiff also suggests UMF 54 is disputed, she offers no evidence whatsoever to demonstrate a dispute. Finally, the opposition failed to create a triable issue of fact relative to UMF 48, in response to which plaintiff again cited the 8/12/2014 letter from UC to her but this evidence, aside from also being cited in the moving papers, does not in and of itself demonstrate there was an eight-month delay in notifying plaintiff of the incident as claimed by the response to UMF 48, as the letter does not actually state plaintiff’s records were accessed in December 2013.

Violation of Right to Privacy. UC argues it is entitled to summary adjudication on this cause of action since none of UC’s own conduct constituted a “serious invasion of privacy,” citing UMF Nos. 45-55 as support for this proposition. Similar to UC’s contention in connection with the preceding cause of action, UC insists it did not improperly access plaintiff’s medical records and has policies in place to prevent others from accessing patient records, thereby precluding plaintiff from proving UC itself violated her right to privacy.

As the opposition admits UMF 55 is undisputed and failed to produce evidence creating a triable issue of fact relative to UMF Nos. 45-54 (see, above), the court finds summary adjudication of this privacy cause of action is also warranted.

Violation of First Amendment Rights/§1983. UC contends this cause of action fails as a matter of law because UC is not a “person” within the meaning of Title 42 U.S.C. §1983 and thus, cannot be liable thereunder. Finding no opposition to this contention, the court will grant summary adjudication on this final cause of action.

Punitive Damages. UC insists that it is a public entity and public entities are statutorily immune from liability for punitive damages pursuant to Government Code §818. As the moving papers are correct, plaintiff cannot recover punitive damages from UC in this case.

Conclusion

Because defendant UC’s moving papers are sufficient to satisfy its initial burden of production under Code of Civil Procedure §437c(p)(2) with respect all causes of action challenged by this motion and because plaintiff failed to carry her burden of producing admissible evidence sufficient to establish at least one triable issue of material fact with respect to any cause, defendant UC is entitled to summary adjudication of each of

the eight causes of action alleged in the complaint.

Since summary adjudication is granted as to all causes of action, UC’s alternative motion for summary judgment must also be granted.

Pursuant to CRC Rule 3.1312, defendant UC to prepare a judgment of dismissal of the entire action.