2017-00215296-CU-OE

Aundre Brown vs. Dignity Health

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

Filed By: Weiner, Jennifer A.

*** 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 defendants 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 Dignity Health dba Mercy Hospital Folsom’s (“Defendant”) motion for summary judgment, or in the alternative summary adjudication is ruled upon as follows.

Defendant’s request for judicial notice is granted.

I. Overview

This is an employment action. Plaintiff Aundre Brown alleges that in October 2005 she was hired as a Radiology Technician, working as a floater on the swing shift (1:00 p.m. to 9:00 p.m.) Since 2008, Plaintiff’s husband has suffered from PTSD due to his

military service. When his PTSD is triggered, he is unable to take care of himself, and Plaintiff would have to take time off to care for him.

In 2014/2015, Plaintiff filled out necessary paperwork for CFRA intermittent leave. Her leave request was accepted and approved for February 2, 2016 to February 2, 2017. Although the medical certification stated that Plaintiff could need up to six absences per month, she averaged around two times per month where she would have to call off. At no time during that year did Plaintiff exceed her 12-week allotment for protected family medical leave.

On February 8, 2017, a meeting was held to discuss the renewal of Plaintiff’s CFRA intermittent leave. Plaintiff had submitted information from her doctor stating that she intermittently needed to care for her husband with a potential frequency of up to seven events per month. Plaintiff was told that Defendant was “unable to accommodate” her intermittent request because it “would pose challenges to the organization in staffing the department and potentially have an adverse impact on the delivery of patient care services…” Defendant provided Plaintiff with a list of other potential job openings and instructed her to contact its human resource provider to determine if other options were available to her.

On February 22, 2017, Plaintiff was told that she would not be allowed to use her CFRA benefit rights and needed to use Defendant’s Extended Sick Leave (“ESL”) benefits in order to stay employed. By this point in time, not only did Plaintiff’s husband suffer from a mental health disorder, but Plaintiff was also disabled due to anxiety and depression regarding her employment situation (all of which was known by Defendant).

On March 1, 2017, Plaintiff was told that she had no choice but to go out on an ESL leave of absence. Plaintiff was notified that her time allotment for this internal leave will be ending. Plaintiff’s husband still requires care due to his PTSD, and she will be unable to return. Therefore, she alleges that she has been effectively been terminated.

Trial is scheduled for 8/12/2019.

The complaint asserts causes of action for: (1) Interference with CFRA leave, (2) Disability Discrimination, (3) Failure to Accommodate, and (4) Failure to Engage.

Defendant moves for summary adjudication of the following issues:

1. Plaintiff Cannot Prevail On Her First Cause of Action for Interference Regarding A Family Medical Leave of Absence (“CFRA”) Because Employers Are Not Required To Accommodate Intermittent Leave That Is Unscheduled and Unpredictable And Because Plaintiff’s Leave Unduly Disrupted The Operations Of The Radiology Department;

2. Plaintiff Cannot Prevail On Her Second Cause Of Action For Disability

Discrimination Because She Cannot Establish A Prima Facie Case Of Discrimination As (1) She Suffered No Adverse Employment Action During Her Tenure; (2) Dignity Health Has Articulated Legitimate, Nondiscriminatory Reasons For Its Actions; And (3) Plaintiff Has No Evidence That Dignity Health’s Explanation Is A Pretext;
3. Plaintiff Cannot Prevail On Her Third Cause Of Action For Failure To Accommodate As Dignity Health Granted Her Request For A Leave Of Absence For Her Own Condition Related To A Claim of Stress;

4. Plaintiff Cannot Prevail On Her Fourth Cause Of Action For Failure To Engage In The Interactive Process As The Parties Engaged In The Interactive Process; and

5. Plaintiff’s Claim For Punitive Damages Must Fail.

II. Objections to Evidence

Pursuant to CCP §437c(q), the Court will rule on only those objections to evidence that it deems material to its disposition of the motion.

Plaintiff’s objections to evidence are OVERRULED. Plaintiff objects to certain evidence on the ground that “the testimony fails to state a material fact.” This is not a valid objection regarding the admissibility of the objected to evidence.

Defendant’s objection nos. 2, 3, 4, 5, 6, 7 are SUSTAINED.

Defendant’s objection nos. 1 is OVERRULED. Defendant objects to Plaintiff’s deposition transcripts, yet has itself introduced her transcript into evidence. (Evid. Code §1414 [“[a] writing may be authenticated by evidence that: [¶] (a) [t]he party against whom it is offered has at any time admitted its authenticity; or [¶] (b) [t]he writing has been acted upon as authentic by the party against whom it is offered.” ( Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 326.)

III. CFRA

Defendant insists that it was not required to provide unscheduled and unpredictable intermittent leave that disrupts its operations.

The published cases upon which Defendant relies are inapposite.

In Collins v. NTN-Bower Corp. (7th Cir. 2001) 272 F.3d 1006, the employee suffered from depression and called in “sick” for two days, but did not advise her employer that she required FMLA leave. The court found that “[a] reference to being ‘sick’ not only withheld important information from the employer [that she was suffering from depression] but likely threw it off the scent.” (Id. at 1008-1009.)

In Mauder v. Metro. Transit Auth. of Harris County (5th Cir. 2006) 446 F.3d 574, the

employee was taking medication for diabetes that caused him to have severe diarrhea. As a result, the employee was taking more breaks during work than his scheduled breaks. The court affirmed the granting of summary judgment since: (1) the employee’s illness did not render him incapacitated or absent from work, (2) his medical condition did not fall within the FMLA definition of a serious health condition, and (3) the employee failed to provide his employer with requested information to effectuate the leave. The case did not turn on whether the issues of unscheduled and unpredictable intermittent leave.

In EEOC v. Yellow Freight Sys. (7th Cir. 2001) 253 F.3d 943, the employee filed a disability discrimination and failure to provide reasonable accommodation suit under the Americans with Disabilities Act. As an accommodation, the employee requested unlimited “sick days, if needed[,] without being penalized.” (Id. at 950.) The court explained that the request for unlimited sick days was unreasonable as a matter of law. Here, Plaintiff’s action is for interference with the CFRA, not the ADA. Moreover, Plaintiff did not request unlimited sick days. Her doctor estimated that CFRA leave needed would be up to seven events per month. (UMF 16.)

Lastly, in Kaylor v. Fannin Regional Hosp. (N.D.Ga. 1996) 946 F.Supp. 988, the employee was hospitalized after a back injury. He was subsequently approved for medical leave and utilized approximately 120 days of eligible FMLA leave during his hospitalization and convalescence. He then returned to work. He had a scheduled follow-up appointment with his doctor scheduled for February 3, 1995. The plaintiff did not mention this appointment to his supervisors for two weeks after he returned to work and finally notified them on January 30, 1995. His supervisor informed him that he could not have February 3, 1995 off because the hospital would be short staffed on that day. The employee never attempted to reschedule his appointment. Despite telling his supervisor that he would be at work on February 3, 1995, he informed co-workers that he planned on calling off sick that day. Plaintiff asserted that he was stricken by a stomach virus on the night of February 2, 1995, and called out sick. Despite the illness, plaintiff was able to appear at his scheduled doctor’s appointment. His doctor testified that his appointment was not out of medical necessity but was a routine. He was thereafter terminated from his job for lying and abuse of sick time. The court held that the employer did not violate the FMLA by denying plaintiff the day off on February 3, 1995, after receiving only four (4) days notice of his doctor’s appointment. (Id. at 999.) In so holding, the court found that plaintiff never reasonably attempted to reschedule his appointment after being told his absence would leave the employer without adequate staffing in the radiology department. Moreover, the appointment was not “medically necessary,” but rather a routine check-up. The court explained that the FMLA “require[s] the employee to consult with the employer when planning medical treatment. The employee must also make a ‘reasonable effort’ to reschedule when an appointment may ‘disrupt unduly’ the employer’s operations, subject to the approval of the health care provider.” (Id. at 998.) The facts herein are wholly distinguishable in that Plaintiff was not seeking intermittent leave for “planned medical treatment” in which she could make a “reasonable effort” to reschedule.

Since Defendant fails to cite analogous legal authority to support its position, the Court concludes that Defendant fails to satisfy its initial burden to show that no triable issue of material fact exists.

Moreover, Plaintiff disputes that she gave “no notice” or “little to no notice” of her need to use CFRA intermittent leave. (Plaintiff’s response to UMF 7.) Plaintiff testified that she would give between 2 to 4 hours of notice. (Id.) When the need for CFRA leave is “not foreseeable-as in cases of medical emergency-‘notice must be given as soon as practicable.’ (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(3).) An employer may not deny leave for a medical emergency because the employee did not provide advance notice. (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(4).)’” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1257.) Accordingly, there is a triable issue as to whether her provided not was “as soon as practicable.”

The motion for summary adjudication is DENIED.

IV. FEHA Disability Discrimination

Plaintiff alleges that Defendant discriminated against her based on her disability.

a. Adverse Employment Action

Defendant insists that Plaintiff cannot satisfy her prima face case of discrimination since she suffered no adverse employment action. It is undisputed that on February 28, 2017, Plaintiff requested a leave of absence for her own claim of stress. (UMF 35.) It is undisputed that Defendant granted her request for a leave of absence for own disability. (UMF 38.) On May 15, 2017, Plaintiff requested an extension of leave to August 28, 2017, which was also granted. (UMF 46.) Plaintiff resigned on August 9, 2017. (UMF 40.) It is also undisputed that although she received some counseling notices for using discourteous language and behavior in the Radiology department, or her absenteeism/attendance, none resulted in disciplinary action, or loss of position or pay. (UMF 39, 47.) Nor did Plaintiff receive any negative performance evaluations. (UMF 42.)

Plaintiff claims that Defendant “failed to negate” her claim for disability discrimination. Plaintiff disputes that she suffered no adverse employment action. Plaintiff proffers evidence that she was placed on unprotected medical leave, and on June 17, 2017, Defendant sent her a letter stating the following “[a]lthough your personal MLOA is approved per Dignity Health Policy, due to business need we are unable to hold your position as a Special Procedures Technologist in the Mercy Hospital Folsom Diagnostic Imaging Department. We are requesting that you engage in the interactive accommodation process to determine next steps . . .” (Plaintiff’s response to UMF 46 [emphasis added].) Thus, according to Plaintiff, these actions resulted in her constructive termination, forcing her to resign.

The Court agrees with Plaintiff and concludes that she has satisfied her burden to show a triable issue of material fact. The FEHA “protects an employee against unlawful discrimination with respect not only to so-called ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1053-1054.) Here, Defendant removed Plaintiff from her position while she was still on leave – which is an adverse employment action. The Court notes that Defendant proffers evidence that Plaintiff had permanently moved to Wisconsin on June 14, 2017 – prior to June 17th letter. While this evidence calls into question whether Plaintiff would have returned to work (even if the position was still available), this fact is not cited in the separate statement. “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).)

b. Legitimate Business Purpose

Defendant’s argument regarding legitimate business purpose relates to its denial of Plaintiff’s request for CFRA leave to care for her husband. Since this purpose has nothing to do with Plaintiff’s own disability, Defendant fails to satisfy its initial burden to show that there is no triable issue of material fact.

The motion for summary adjudication is DENIED.

V. FEHA Failure to Accommodate

Defendant’s motion for summary adjudication of the failure to accommodate cause of action is GRANTED. Here, it is undisputed that the only accommodation Plaintiff requested in connection with her own disability was a leave of absence, which Defendant granted. (UMF 51.) Plaintiff attempts to raise a triable issue by arguing that Defendant failed to provide her a reasonable accommodation so that she could care for her husband – such as intermittent leave or changing to a day position.

Plaintiff’s argument misses the mark because it does not concern a reasonable accommodation for her own disability. Under FEHA, an employer is required to provide reasonable accommodations to disabled employees. (Govt. Code §12940(m).) “The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is reasonably qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009-1010 [emphasis added].) Plaintiff proffers no legal authority that pursuant to FEHA, an employer must provide a reasonable accommodation to an employee related to an employee’s disabled family member. Therefore, Plaintiff fails to satisfy her burden to demonstrate a triable issue of material fact.

VI. FEHA Failure to Engage

FEHA also requires employers to engage in an “interactive process”, “an informal process with the employee or the employee’s representative, to attempt to identify a reasonable accommodation that will enable to the employee to perform the job effectively.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013; Govt. Code § 12940(n).)

“Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith. ‘Both employer and employee have the obligation ‘to keep communications open’ and neither has ‘a right to obstruct the process.’ ‘Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.’” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971-972.)

“The purpose of the interactive process is to determine what accommodation is required.” (A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 464.) “The employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed.” (Scotch, supra, 173 Cal.App.4th at 1013.)

Defendant moves for summary adjudication on the ground that Plaintiff has no viable claim because the parties engaged in the interactive process and reached an agreement on the only accommodation she requested – a leave of absence.

In opposition, Plaintiff claims that

Plaintiff’s [sic] requested intermittent leave or something else (i.e., a day

position) in order to stay employed.

. . .

Defendant was aware that the only reason that Plaintiff’s disability had become limiting to her was that she was very stressed because Defendant was unwilling to grant her an accommodation that would allow her to care for her PTSD husband on the rare occasions it was needed during work hours. Defendant has presented no evidence that it contacted her healthcare provider (which was also her husband’s healthcare provider) to see if there was anything he suggested (where they could discuss whether his estimate was accurate), analyzed whether a different shift was available, or looked at all available day positions in February 2017.

. . .

In this case, Defendant just granted Plaintiff’s continuous leave of absence due to her own mental health condition and had no interactive process to discuss what could be done at that time.”

(Opposition, 17:1-2; 18:8-10.)

The crux of Plaintiff’s argument appears to be that her mental stress is so intertwined with the purported failure to provide a reasonable CFRA accommodation that Defendant was required to engage in the interactive process to provide her with intermittent CFRA leave or to switch to a day shift. It is undisputed; however, that Plaintiff did not request intermittent CFRA leave or a different shift due her mental stress. (UMFs 35, 38, 46.) Defendant gave Plaintiff the only accommodation she requested in connection with her own disability. (UMF 52.) Plaintiff’s reliance on Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954 is misplaced since the employer did not provide the plaintiff with the accommodation she specifically requested. It is also undisputed that Plaintiff resigned on August 9, 2017 – before her leave was finished. (UMF 40.) Plaintiff has not shown a triable issue of material fact that Defendant failed to engage in the interactive process.

To the extent Plaintiff insists that she should have been given intermittent leave or a day position, this argument appears apply to her request for CFRA intermittent leave to care for her husband, and not leave based on her own disability. Plaintiff proffers no legal authority that pursuant to FEHA, an employer must engage in the interactive process related an employee’s disabled family member. Therefore, Plaintiff fails to satisfy her burden to demonstrate a triable issue of material fact.

The motion for summary adjudication is GRANTED.

VII. Punitive Damages

The motion for summary adjudication of Plaintiff’s claim punitive damages is GRANTED. It is undisputed that neither Anthony Robinson (Manager of Human Resources), Michael Bojorquez (Plaintiff’s supervisor), Matt Inman (Lead Technician), Christina Le Nguyen (Employee Health Services), nor Rosa Hernandez (Human Resources) were corporate officers or members of the Board of Directors for Dignity Health, Inc. or Mercy Hospital Folsom. (UMFs 53, 55.) They had no authority to establish corporate policies for Dignity Health, Inc. or Mercy Hospital Folsom, and could not exercise any substantial independent judgment in corporate decision making, so that their decisions ultimately determined any corporate policies. (UMF 56.)

Plaintiff claims that Defendant “failed to negate” the claim of punitive damages in relation to Anthony Robinson (“Robinson”), the Manager of Human Resources. Plaintiff advances that since Robinson “ratified and followed the corporate policy/procedure”

created by Defendant, the “knowledge by upper management that employees are making unfit decisions can provide a basis for punitive damages.” (Opposition, 19:2-5.) Plaintiff’s reliance on Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1438 is misplaced. In Myers, the plaintiff’s supervisor made unwanted sexual advances towards her. She sued her employer for FEHA sexual harassment and common law claims. The trial court granted the employer’s motion for summary judgment. With respect to her request for punitive damages for FEHA sexual harassment, the Third District Court of Appeal found that it was undisputed that the supervisor did not have policy making authority and was not a “managing agent.” The court, however, explained that the employer failed to satisfy its initial burden to show that upper management had knowledge that the supervisor was unfit as a project director. Myers did not turn on whether upper management was “aware that employees were making unfit decisions, as Plaintiff suggest. Instead, the focus was on whether upper management knew that the supervisor was sexually harassing its employees, making the supervisor “unfit.” Here, there are no allegations that Robinson was “unfit” as the Manager of Human Resources or engaged in any similar conduct to that of the supervisor in Myers.

Plaintiff further maintains that because Robinson complied with corporate procedures which violated the CFRA, Defendant must first show that the corporate procedures were not enacted and ratified by officers, directors, or corporate agents. Plaintiff quotes a single paragraph in Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 713-714. Roby does not support Plaintiff’s argument. In Roby, the court reviewed the “three guideposts” for punitive damages, one of which is the “the degree of reprehensibility of the defendant’s misconduct.” There are five factors to the “degree of reprehensibility.” In the paragraph quoted by Plaintiff, the court discussed one of those factors — whether “the conduct involved repeated actions or was an isolated incident.” The court concluded that with respect to plaintiff’s discrimination claim, the employer’s adoption of its attendance policy was “a single corporate decision.” Nothing in Roby requires the defendant to initially demonstrate that “the corporate procedures were not enacted and ratified by officers, directors, or corporate agents.”

The Court disagrees with Plaintiff that Defendant “failed to negate” the claim for punitive damages. The Court concludes that Defendant has satisfied its initial burden to show that no triable issue of material fact exists. Since Plaintiff fails to show a triable issue of material fact, the motion for summary adjudication of the claim for punitive damages is GRANTED.

Disposition

The motion for summary adjudication is GRANTED as the causes of action for Failure to Accommodate and Failure to Engage, and for the claim for punitive damages.

The motion for summary adjudication is DENIED as to the causes of action for Interference with CFRA and Disability Discrimination.

The motion for summary judgment is DENIED.

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