2016-00191254-CU-WT

Randa Fanous vs. Kaiser Foundation Hospitals

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

Filed By: Larsen, Shane R.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the Issues identified in the Notice of Motion and which of the Undisputed Material Facts offered by the moving defendant and/or the Additional Material Facts offered by plaintiff will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendant The Permanente Medical Group, Inc. (“TPMG”) motion for summary

judgment, or in the alternative, summary adjudication is ruled upon as follows.

The Court notes that Kaiser Foundation Hospitals, Inc. (“KFH”) is also a moving party.

After the instant motion was filed, Plaintiff dismissed Kaiser Foundation Hospitals, Inc.

Thus, the Court will only address the motion as it relates to TMPG.

Overview

This is an employment action for whistleblower retaliation (Labor Code §1102.5), retaliation for opposing sexual harassment, and wrongful termination.

Plaintiff Randa Fanous is a registered nurse employed first by KFH and then TPMG. From 2004 through 2013, Plaintiff worked at KFH’s “Tele department” in stroke care. She alleges that from late 2013 through May 12, 2014, she made complaints over the lack of proper “Stroke Scale Assessments” being performed in her department.

Plaintiff further alleges that in March 2014, she made a complaint of sexual harassment in the form of a stalking complaint against a male co-worker, Welsey Varbick. Plaintiff alleges that in retaliation for her complaints, in March 2015, her department manager, Ruby Acejedo, issued her a written verbal warning which stated that Plaintiff had conflicts with other co-workers. Plaintiff claims that these were false allegations.

In June 2015, she started employment at TPMG’s Wound Clinic. She alleges that she was promised Wound Class Certification training, but that was revoked and Plaintiff paid for the certification herself. Commencing in early August 2015, Plaintiff observed instances of gross patient care and neglect. She complained of the issues to upper management. On October 25, 2015, she was written up on false and vague accusations of failing to get along with co-workers. On November 1, 2015, she was placed on administrative leave pending an investigation into Plaintiff. On January 4, 2016, she was terminated from her employment.

Given Plaintiff’s dismissal of KFH, the allegations relating to the complaints regarding Stroke Scale Assessments and sexual harassment are no longer at issue. Pending are those actions purportedly taken by TPMG while Plaintiff was employed in the Wound Clinic.

Trial is scheduled for July 16, 2018.

Labor Code §1102.5

Plaintiff alleges violations of Labor Code §1102.5(a), (b), (c) and (d). TMPG moves for summary adjudication of each subpart of Labor Code §1102.5. In opposition, Plaintiff focuses only on the violation of Labor Code §1102.5(b). Thus, it appears to the Court Plaintiff concedes the merits of TMPG’s motion for summary adjudication as to Labor Code §1102.5(a),(c), and (d). The Court therefore GRANTS summary

adjudication of Labor Code §1102.5(a, (c), and (d). (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1850.)

The Court now turns to Labor Code §1102.5(b).

Labor Code §1102.5(b) prohibits an employer from retaliating against an employee for disclosing information to a person with authority over the employee if the employee has reasonable cause to believe that the information discloses a violation of law.

“The elements of a [Labor Code] section 1102.5(b) retaliation cause of action require that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provides a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff shows this explanation is merely a pretext for the retaliation.” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.)

To establish a prima facie case of retaliation, the “plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” (Id.)

TPMG moves for summary adjudication on the ground that Plaintiff has insufficient evidence to demonstrate a retaliatory motive.

Plaintiff advances retaliatory motive is shown because of the close proximity in time between her complaint and disciplinary action.

“Close proximity in time of an adverse action to an employee’s resistance or opposition to unlawful conduct is often strong evidence of a retaliatory motive.” (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1235, overruled on other grounds as stated in Jones v. Lodge at Torrey Pines P’ship (2008) 42 Cal.4th 1158; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986,1020; Villiarimo v. Aloha Island Air, Inc. (9th Cir. 2002) 281 F.3d 1054, 1065 [“[I]n some cases, causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity.”].)

Here, Plaintiff proffers evidence that on 9/14/2015 she complained to Lane Phillips (“Phillips”), the Director of Surgical Specialties, regarding a certain nurse having MRSA, a contagious anti-bacterial resistant infection that spreads with contact from the infected person to another with an open wound. (Plaintiff’s AMF 60-61.) This nurse asked Plaintiff to treat a wound she had on her shoulder that needed dressing. Upon inspecting the bandage, Plaintiff noted that it had puss “Striking through” the bandage. (Plaintiff’s AMF 58.) Plaintiff also observed a PICC line on the nurse’s shoulder. A PICC line is used to dispense fluid medications. (Plaintiff’s AMF 59.)

Plaintiff also proffers evidence that on 10/2/2015, she complained to Phillips regarding the same nurse placing patients in danger. Plaintiff observed that the nurse was

working with a new patient who had multiple open wounds with various degrees of depth and hyperkeratosis on a buttocks wound. The nurse then inserted her glove hand finger into the patient’s anus. She then opened the supply drawer and inserted her contaminated dirty finger gloved hand into the supply drawer and moved around supplies ultimately find the instrument she wanted and pulled it out. (Plaintiff’s AMF 65.)

The Court concludes that Plaintiff has satisfied her prima facie burden to show a retaliatory motive. Here, Phillips issued the disciplinary action notice and Performance Improvement Plan (“PIP”) on 10/28/2015 — slightly over one month from her first complaint and less than one month from her second complaint. The PIP was to conclude on 1/28/2016. She was terminated on 1/4/2016, before the expiration of the PIP.

The burden now shifts to TPMG of showing a legitimate, nonretaliatory reason for the adverse employment action. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1020.)

TPMG proffers evidence that it received numerous complaints from co-workers and patients regarding her unprofessionalism, hostile, and short-tempered towards staff and patients. (UMFs 12, 23, 24, 25, 29, 32-35.) On 8/31/2015, before Plaintiff made any complaints, Plaintiff received a performance evaluation issued by TPMG which rated Plaintiff as “unsatisfactory” or needs improvement in all areas except attendance and punctuality. Phillips prepared the evaluation based upon discussions with coworkers who had firsthand knowledge of Plaintiff’s work, as well her own personal observations. The complaints from staff and patients were also taken into account in formulating the evaluation rating. (UMF 27.) Phillips commenced an investigation into Plaintiff’s work on 9/24/2015. (UMF 29.) Phillips interviewed several employees as part of the investigation, including Plaintiff. The interviewed employees explained that they felt uncomfortable, threatened, and harassed by Plaintiff’s demeanor. They also detailed incidents in which they believed Plaintiff had failed to follow proper safety protocol. (UMF 29.) Phillips determined that Plaintiff had failed to comport with TPMG’s Principles of Responsibility. (UMF 40.) Phillips issued the 10/28/2015 disciplinary action notice and PIP in good faith. (UMF 31.) Phillips did not consider any complaints raised by Plaintiff at any time in her treatment of Plaintiff. (UMF 45.)

Then, on November 4, 2015, TPMG hosted an educational luncheon for staff. TPMG received reports from other staff present at the luncheon that Plaintiff arrived and began using her phone in the presence of the presenter. Ms. Disney gave Plaintiff a note asking her to stop using her phone as it was rude to the presenter. (UMF 32.) Following the luncheon, Plaintiff cornered Ms. Disney in the break room and began yelling at Ms. Disney. Ms. Disney reported to TPMG she felt threatened as a result of the exchange. (UMF 33.) On November 5, 2015, Plaintiff met with the nurse who had MRSA to discuss a skills checklist Plaintiff was to complete. Following the meeting, the nurse reported to Phillips that Plaintiff had engaged in threatening conduct towards

her. The next day, the nurse provided a written statement of what had transpired. (UMF 35.) TPMG placed Plaintiff on administrative leave solely on a good faith belief that Plaintiff had violated standards of conduct. (UMF 36, 37.) Phillips conducted another investigation based on the November complaints against Plaintiff. During the investigation, witnesses confirmed feeling frightened at work because of Plaintiff, and the nurses reported they did not believe Plaintiff was capable of independently treating wound care patients. (UMF 38.) Plaintiff was also interviewed and had union representation the entire time. (UMF 39.) Upon conclusion of the investigation, Phillips determined Plaintiff had conducted herself in an unprofessional and untruthful manner. Given the severity of Plaintiff’s new infractions on or about November 4 and November 5, together with the history of other inappropriate conduct and warnings, Phillips determined Plaintiff violated TPMG’s Principles of Responsibility. (UMF 40.) Plaintiff was terminated on January 4, 2016. (UMF 41.)

With respect to the nurse with MRSA, TPMG received a

medical certification from her from her physician clearing her to return to work with a lifting modification. The medical certification did not prohibit the coworker from working or interacting with patients. (UMF 18.)

Phillips also investigated Plaintiff’s complaint regarding improper glove usage, and failed to substantiate Plaintiff’s allegations. (UMF 20.)

The Court concludes that TPMG has satisfied its burden to demonstrate a legitimate business purpose for the adverse employment action.

Once 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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) To avoid summary judgment, an employee claiming discrimination or retaliation must produce “substantial responsive evidence that the employer’s showing was untrue or pretextual” thereby raising at least an inference of discrimination or retaliation. (Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) “The plaintiff may establish pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. [citations omitted].” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 140.) Circumstantial evidence of ” ‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate” on an improper basis. (Morgan v. Regents of University of California (2001) 88 Cal. App. 4th 52, 69. [citations omitted).) Plaintiff cannot “simply show the employer’s decision was wrong, mistaken, or unwise. Rather, [Plaintiff] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons. (Id. at 75.)

The Court concludes that Plaintiff fails to show with “substantial responsive evidence” that TPMG’s legitimate business purpose was “untrue or pretextual.” Plaintiff speculates that the investigations into her complaint regarding improper glove usage and the complaints made against her were biased. Plaintiff’s evidence does not show bias in the investigations. For example, Plaintiff attempts to dispute her co-workers and patient complaints about her professionalism and hostility by proffering her own declaration. Plaintiff’s self-serving declaration cannot create a triable issue of material fact. (King v. United Parcel Service, Inc. (2007) 152 Cal. App. 4th 426, 433 [“plaintiff’s subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.”].) Nor do Plaintiff’s “disputes” show that TPMG’s legitimate reasons are “unworthy of credence.” For example, Plaintiff claims that Ms. Disney “fabricated her allegations against Plaintiff.” (Plaintiff’s response to UMFs 31, 34, 35, 36, 37, 38, 43, 45, 46, 48.) Ms. Disney’s deposition testimony, which Plaintiff cites as support for this fact does not prove that she fabricated her allegations against Plaintiff. Plaintiff complains that her co-workers “shunned” her and would not talk to her. (Plaintiff’s response to UMFs 20, 25, 28, 29, 30, 31, 32, 33, 35, 36, 37, 38, 40, 43, 45, 46.) The Court does not see how these facts show pre-text for the adverse action. Plaintiff further insists that Phillips was retaliating against her for filing a complaint against Phillips on August 27, 2015 because Phillips created a hostile work environment. (Plaintiff’s response to UMFs 5, 11.) Plaintiff’s complaint fails to allege her August 2015 complaint as a ground for her Labor Code §1102.5 cause of action. In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) Moreover, although TPMG terminated Plaintiff a few weeks before the end of the PIP, Plaintiff fails to substantively dispute the two November incidents which ultimately led to her termination. As TPMG notes, these two new incidents demonstrated the need for further action and that it would be reasonable to terminate Plaintiff before the end of the PIP if she engaged in threatening conduct in the workplace and her coworkers were fearful of working with her.

Having failed to produce “substantial responsive evidence” that TPMG’s legitimate business purpose was untrue or pretextual,” TPMG’s motion for summary adjudication is GRANTED.

FEHA Retaliation for Opposing Sexual Harassment

Plaintiff does not oppose TPMG’s motion for summary adjudication of this cause of action. The motion for summary adjudication is GRANTED.

Wrongful Termination

TPMG moves for summary adjudication on the ground that Plaintiff has insufficient evidence to prevail on her underlying claims of retaliation. Given that the Court has granted TPMG’s motion for summary adjudication of the Labor Code §1102.5(b) cause of action, the motion for summary adjudication of the wrongful termination cause of action is GRANTED for the same reasons.

Punitive Damages

Plaintiff does not oppose TPMG’s motion for summary adjudication of claim for punitive damages. The motion for summary adjudication is GRANTED.

The motion for summary judgment is GRANTED.

The Court need not rule on Plaintiff’s objections because the objected to evidence was not considered in ruling on the motion. (CCP §437c(q).)

With respect to TPMG’s objections to evidence, the Court will rule on only those objections to evidence that it deems material to its disposition of the motion. (CCP §437c(q).) TPMG’s objection nos. 3, 9, 14, 15, 20, 25 are OVERRULED.

This minute order is effective immediately. TPMG shall prepare a formal order pursuant to CRC Rule 3.1312 and CCP 437c(g).

The Court notes that Plaintiff’s complaint, and the moving/opposing/reply papers and papers filed in support thereof identify the name of the nurse with MRSA and her medical information (or her identity can be determined by reviewing the papers filed with the Court). All of this medical information is viewable by the public via the Court’s CCMS system. All counsel are reminded that all pleadings and documents may be electronically accessed by the public once they are filed unless the Court orders otherwise. Thus, it is imperative for counsel to appropriately redact all pleadings and documents before filing.

Both parties shall promptly file and serve an appropriate application/motion to seal pursuant to CRC Rule 2.550 et seq. and lodge (not file) with the Court appropriately redacted but otherwise identical version of the respective papers which include the nurse’s unredacted private medical information.

The clerk is directed to promptly change the security clearance on the unredacted version the following ROAs: ROA 1, ROAs 18-21, ROAs 24-26, and ROA 29 so that it is no longer viewable by the public via the Court’s CCMS System.