Filed 11/27/19 Esson v. Stanford Hospital and Clinics CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

SIMONE ESSON,

Plaintiff and Appellant,

v.

STANFORD HOSPITAL AND CLINICS,

Defendant and Respondent.

H044630

(Santa Clara County

Super. Ct. No. 1-15-CV-275843)

Plaintiff Simone Esson brought this action for age discrimination against her former employer, defendant Stanford Hospital and Clinics (SHC). The trial court granted Stanford’s motion for summary adjudication, denied Esson’s motion for a new trial, and entered judgment in SHC’s favor. Esson appeals. We affirm.

I. BACKGROUND

A. Undisputed Facts

1. Esson’s Career at SHC

Esson began working at the Faculty Practice Program at Stanford in 1981, at the age of 18. When Stanford Hospital and the Faculty Practice Program merged in the 1990s, she became employed by SHC. In 2011, she was made Director of Revenue Cycle Informatics. In that position she managed a staff of 23.

Between 2008 and 2012, Esson consistently received positive performance reviews. She received a rating of “exceeds standards” on her review for fiscal year 2008, during which she held the position of Assistant Director of Professional Services Organization. Her reviewer, David Haray, stated that “Simone continues to demonstrate excellent stewardship over the revenue cycle in a year confronted with . . . significant challenges.” Esson again received ratings of “exceeds standards” for her work as Assistant Director of Professional Services Organization in fiscal years 2009 and 2010. In Esson’s review for fiscal year 2010, her supervisor, Gil Radtke, wrote: “Simone’s performance remains outstanding. She remains the rock of the management team. She is an excellent friend and loyal good-humored confidant. I appreciate her support and knowledge every day. She has constant enthusiasm for the job and interest in improving the workflows of the PSO. Simone’s [sic] has grown as a professional, and she is ready to accept bigger challenges.”

Esson received a positive performance review from Haray for fiscal year 2011, which was her first year as Director of Revenue Cycle Informatics. Esson’s review from Haray for fiscal year 2012 was glowing. Haray wrote: “I want to commend Simone for completing her second full year of a new role, namely that of Director [of] Revenue Cycle Informatics. She has built an outstanding team, works superbly well with operations, OCIO, and EAST (Accenture). This can no better be attested to than in the revenue cycle results we achieved in FY 2012, which were the best in a decade and allows operations to pursue, as stated earlier, revenue cycle best practices and the ideal patient experience. The organization is fortunate to benefit from Simone’s decades of subject matter expertise, organizational savviness, and a great reputation for getting things done.”

2. The 2012 IT Restructuring

In 2012, SHC insourced and consolidated its IT functions. Previously, many of the IT functions were outsourced to Accenture, and various “shadow IT” groups existed in different departments. The new IT structure included a new role—Director of Revenue Cycle Systems and Services—and no longer included Esson’s position, Director of Revenue Cycle Informatics. Both the new Director of Revenue Cycle Systems and Services and the Director of Revenue Cycle Informatics were tasked with supporting SHC’s revenue cycle operations using revenue cycle applications. But the new role had a greater focus on long-term strategy and direction for revenue cycle systems and applications than did the old role.

SHC began implementing the IT reorganization in September 2012. Monica Gupta was one of the primary individuals at SHC responsible for planning and executing the reorganization.

3. SHC Hires Aimmon Lago Over Esson as Director of Revenue Cycle Systems and Services

SHC accepted applications for the new Director of Revenue Cycle Systems and Services position in September 2012. Esson applied for the position, as did Aimmon Lago, a 33-year-old man. Lago had worked at Accenture, an IT service company, for 10 years, five of which he spent as a contractor for SHC’s IT department. He left Accenture in January 2012 for Kaiser Permanente. Lago applied for the position, in part, because Gupta had reached out to him via LinkedIn. Gupta had not met Lago; she reached out to him because his LinkedIn profile showed that he had previous experience working at SHC as an Accenture contractor and was working in revenue cycle at Kaiser Permanente.

In September and October of 2012, Lago was interviewed by Gupta, Haray, Pravene Nath, Jill Buathier, Yohan Vetteth, and Dean Shold. Esson, who was then 50 years old, was interviewed by the same people.

Gupta believed Lago was the better candidate “based on his education, background, experience and the complexity of the new Director role.” Gupta had never supervised Esson or had a one-on-one meeting with her; Gupta did not review Esson’s prior performance reviews in connection with the interview process.

Haray, then SHC’s Vice President of Financial Projects/Valley Care Revenue Cycle, believed Esson was the better candidate. He had supervised her for several years and considered her a friend.

Nath, then SHC’s Associate Chief Information Officer, believed Lago was the better candidate because he “provided better answers overall” to interview questions. Nath concluded that “Esson did not have great command over details or what she would do to solve problems within the organization.”

Buathier, then SHC’s Vice President of Revenue Operations, likewise thought Lago was the better candidate for the more complex new role given his academic background and IT experience.

Vetteth, then SHC’s Executive Director of Innovation and Business Intelligence, thought Lago was the better candidate because he had a better understanding of how revenue cycle fit within the broader application portfolio and his thinking was more strategic and focused on long-term planning.

SHC formally offered Lago the position of Director of Revenue Cycle Systems on November 6, 2012. Lago accepted and started working at SHC on November 29, 2012.

At the end of September 2013, Lago gave Esson a positive performance review.

4. Esson’s Demotion and Termination

In October 2013, Esson accepted the at-will role of Senior IT Program Manager. Her base salary of more than $190,000 stayed the same in her new role, but the size of her potential annual bonus declined. She was assigned to work on three projects: Transplant Billing, Point of Sale, and Advance Beneficiary Notice.

In January 2014, Lago told Esson to complete a project plan for each of her projects. According to Lago, a project plan “is a crucial element in any IT project. It details overall work flow and which components of the project need to be completed before others can begin. Based on the estimated time for each component of the project, . . . a realistic time frame for completion [is developed] that . . . can [be] share[d] with . . . business partners.” Lago gave Esson project plan templates to work from, which she chose not to use. Esson still had not completed a project plan for the Point of Sale project as of March 6, 2014. She provided Lago with a timeline for that project on March 21, 2014, which Lago informed her was not sufficiently clear. Esson stated at her deposition that Lago never clearly communicated what exactly she was “doing wrong” on her project plan. In her view, Lago “was stuck on that project plan. I was stuck on getting the work done. [¶] I didn’t realize how big of a thing this project plan was to him.” In an email dated April 10, 2014, Lago reiterated to Esson the need to “arriv[e] at target milestone dates that we can share with our customers” on each of her three projects.

On May 1, 2014, Lago spoke with Employee and Labor Relations Manager Patrick Alvarez regarding the possibility of terminating Esson’s employment.

On May 9, 2014, an IT employee who was working on the Transplant Billing Project told Lago she had concerns about Esson’s management of that project. Lago asked the employee to put her concerns into an email, which she did. Among other things, that email expressed concern that Esson did “not have firm grasp of current state of [the] project,” had “only just now started to create the project plan,” “place[d] all managing responsibilities on other team members,” did “not understand the workflow,” did “not facilitate discussions to help further the project,” and “[c]ancel[ed] meetings at [the] last minute.”

Later that same day, Lago informed Alvarez that, “[a]fter discussions with [his] leadership (Monica Gupta and Wade Carroll),” he had decided to terminate Esson’s employment. Esson’s employment was terminated, effective immediately, on May 30, 2014. The employment termination letter she received from Lago referenced her failure to finalize project plans for the Point of Sale and Transplant Billing projects and faulted her for those projects being “significantly behind schedule, the project teams [being] frustrated, and the customer groups [being] confused and misinformed.” The termination letter further stated that Esson was not meeting expectations in the areas of project planning, documentation, communication, meeting facilitation, management of teams across disciplines, proactive mitigation of issues before they arise, and ability to instill confidence in her project team members and customers. Esson was 52 years old at the time of her firing.

B. Procedural History

Esson sued SHC on January 22, 2015, alleging causes of action for age discrimination, sex discrimination, wrongful termination in violation of public policy, and breach of implied-in-fact employment contract. SHC filed an answer and, later, moved for summary judgment or, in the alternative, summary adjudication. After briefing on that motion was complete, Esson requested dismissal of her sex discrimination and breach of implied-in-fact employment contract causes of action.

Following a hearing, the trial court granted summary adjudication in SHC’s favor on the remaining two counts. In its written order, the court concluded that SHC had demonstrated legitimate, nondiscriminatory reasons for the adverse employment actions. The court further concluded that Esson had failed to show that SHC’s asserted reasons were false or pretextual. Accordingly, the court ruled Esson’s age discrimination claim failed, as did her wrongful termination in violation of public policy claim, which was premised on the age discrimination claim.

Esson moved for a new trial on grounds the trial court erred by declining to rule on her evidentiary objections, failing to consider the evidence she submitted in opposition to the motion for summary judgment, and misapplying the law governing discrimination claims. Her argument that the court had not considered her evidence was based on the fact that her separate statement of disputed material facts was missing from the court file and was not listed in the court file’s Registry of Actions. Significantly, SHC’s response to that document, which fully set forth her disputed material facts, was in the court file. The court denied the motion for a new trial by written order dated January 18, 2017. The court concluded that even if it had erred in not ruling on Esson’s evidentiary objections, she had failed to show any prejudice. The court stated that, contrary to Esson’s assumption based on the state of the court file, it had considered all filings and evidence, including the evidence she had submitted in opposition, in ruling on the summary adjudication motion. Finally, the court rejected Esson’s argument that it had misapplied the law.

The court entered judgment in SHC’s favor on March 8, 2017; Esson timely appealed.

II. DISCUSSION

Esson challenges the grant of summary adjudication to SHC and the subsequent denial of her new trial motion.

A. The Court Properly Granted Summary Adjudication to SHC

1. Legal Principles Governing Age Discrimination Claims and the Standard of Review

Our review of an order granting summary adjudication is governed by the rules generally applicable to review of summary judgments. (See Tauber-Arons Auctioneers Co. v. Superior Court (1980) 101 Cal.App.3d 268, 273.) Our review is de novo. (Ramalingam v. Thompson (2007) 151 Cal.App.4th 491, 498.) “[W]e view the evidence in a light favorable to the losing party . . . , liberally construing [his or] her evidentiary submission while strictly scrutinizing the moving party’s own showing and resolving any evidentiary doubts or ambiguities in the losing party’s favor.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859 (Serri).)

California has adopted the so-called McDonnell Douglas test established by the United States Supreme Court for trying claims of discrimination, including age discrimination. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) That three stage burden-shifting test “allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Ibid.)

In the context of a trial, the initial burden is on the plaintiff to establish a prima facie case of discrimination. (Ibid.) While the elements of a prima facie case may vary depending upon the nature of the claim, the plaintiff typically is required to proffer evidence that “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Id. at p. 355.) A legally mandatory but rebuttable presumption of discrimination arises if the plaintiff establishes a prima facie case. (Ibid.) Under the second step of the test, the burden shifts to the employer to rebut the presumption by “ ‘articulating a legitimate, nondiscriminatory reason for the challenged action.’ ” (Serri, supra, 226 Cal.App.4th at p. 861.) “If the employer sustains this burden, the presumption of discrimination disappears.” (Guz, supra, at p. 356.) Under the third step of the test, the “plaintiff must . . . have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.” (Ibid.)

In the context of summary judgment or adjudication, “ ‘the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ ” (Serri, supra, 226 Cal.App.4th at p. 861.) “If the employer has met its burden by showing a legitimate reason for its conduct, the employee must 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.” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) An employee “ ‘cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.’ ” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (Hersant).) Nor is it sufficient to show “that the company lied about its reasons” (Guz, supra, 24 Cal.4th at p. 360) because “[t]he pertinent statutes do not prohibit lying, they prohibit discrimination.” (Id. at p. 361.) While “[p]roof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons[,] . . . there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions.” (Ibid.)

2. SHC Carried its Burden to Show the Adverse Employment Actions Were Based on Nondiscriminatory Factors

SHC submitted evidence showing that it insourced and consolidated its IT functions in 2012. It further demonstrated that, as part of that process, Esson’s position—Director of Revenue Cycle Informatics—was eliminated and the new role of Director of Revenue Cycle Systems and Services was created. The evidence further established that Lago and Esson were interviewed for the new role and the majority of interviewers concluded that Lago was the better candidate for that job. Thus, SHC met its burden to produce evidence that it eliminated Esson’s position, created the new position, and hired Lago over Esson for that role for legitimate, nondiscriminatory reasons—namely, as part of the IT reorganization and because interviewers concluded Lago was better qualified.

SHC also submitted evidence showing that creating project plans for each of her IT projects was an important part of Esson’s new Senior IT Program Manager job. Yet SHC’s evidence showed that Esson failed to appreciate the importance of that task and failed to adequately complete such project plans despite multiple discussions with Lago. SHC also submitted evidence showing that Esson was not effectively managing the Transplant Billing Project. Accordingly, SHC met its burden to produce evidence that it fired Esson for a legitimate, nondiscriminatory reason—poor job performance.

3. Esson Did Not Carry Her Burden to Show Pretext

In light of SHC’s evidence that it had nondiscriminatory reasons for its challenged actions, the burden shifted to Esson to offer evidence that the asserted reasons were a pretext for discrimination or evidence of discriminatory motive. Esson attempts to show that SHC’s proffered nondiscriminatory reasons were false and thus pretextual.

First, she argues Lago effectively was given her old job with a new title. That argument goes nowhere, as she agreed in responding to SHC’s statement of undisputed material facts that the new Director of Revenue Cycle Systems and Services role had greater focus on long-term strategy and direction for revenue cycle systems and applications than did her prior position. In other words, the roles were different. Therefore, SHC’s reason for changing the title and interviewing for the position was not unworthy of credence.

Second, Esson argues Lago was less qualified than she was for the new position. For that argument, she relies on her own declaration, in which she declared herself to be qualified for the new role and Lago to be “vastly inferior . . . in qualifications and experience.” “[A]n employee’s subjective personal judgments of his or her competence alone do not raise a genuine issue of material fact.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 816.) The evidence shows that Esson had more work (including managerial) experience than did Lago, having been in the work force two decades longer than Lago. But Lago had more academic training, having earned a bachelor’s degree, whereas Esson began her career out of high school. Both Esson and Lago had revenue cycle experience and had certifications in EPIC, the electronic recordkeeping system utilized by SHC. The foregoing evidence does not demonstrate that SHC’s reason for selecting Lago over Esson for the new role—that the majority of interviewers concluded that Lago was better qualified for that job based on a combination of his education, experience, and interview answers—was implausible or otherwise unworthy of credence.

Third, Esson claims SHC violated its own employment policies by firing her without any formal warning, the implementation of a performance improvement plan, or the use of progressive discipline. But she submits no evidence establishing that SHC had policies requiring that at-will employees receive a formal warning, a performance improvement plan, and/or progressive discipline before being terminated. Rather, she relies on an excerpt from an SHC employee handbook stating that “[a] corrective action plan may be used to help an employee correct performance or behaviors that do not meet the requirements of the job, or that may be harmful to the mission, goals, or operation of the organization. Generally, this process involves oral and written counseling/warning that identifies the areas needing improvement and a plan to help the employee meet the job requirements within a specified time period. [¶] Failure to meet the requirements set forth in the corrective action plan can result in termination of employment. [¶] Some behaviors or violations may be considered serious enough to warrant immediate termination.” (Italics added.) The excerpt does not require the use of a formal warning, a performance improvement plan, or progressive discipline before an at-will employee can be terminated.

Finally, Esson points to evidence of her long tenure and positive performance reviews. We agree with Esson that her performance reviews in the years leading up to her termination were positive; in some years, they were excellent. Those reviews are of somewhat limited relevance because she received them before she assumed the role of Senior IT Program Manager. It is possible that the skills that made her excel at her prior positions did not apply to her new role; or her new role required skills that her prior roles did not and that she lacked. At best, the performance reviews indicate that Lago and SHC were unwise in deciding to fire Esson. But that is not sufficient to create a triable issue of fact as to pretext. (Hersant, supra, 57 Cal.App.4th at p. 1005.)

In sum, we conclude Esson failed to meet her burden of producing substantial evidence that SHC’s stated reasons for demoting and later firing her were untrue or pretextual, or that SHC acted with a discriminatory animus, such that a reasonable trier of fact could conclude it engaged in intentional discrimination or other unlawful action. (Serri, supra, 226 Cal.App.4th at p. 868.) Accordingly, the court properly granted summary adjudication to SHC on Esson’s age discrimination and wrongful termination claims.

B. The Court Properly Denied Esson’s New Trial Motion

1. Standard of Review

“Generally, rulings on new trial motions are reviewed for an abuse of discretion. [Citation.] Nonetheless, in the case of an order denying a new trial following summary judgment, the determinations underlying the denial dictate our standard of review. [Citation.] To the extent the denial relies on the resolution of a question of law, including the nonexistence of triable issues of fact, we examine the matter de novo. [Citations.]” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1176.)

2. Analysis

The trial court did not err under any standard in denying Esson’s new trial motion. Her motion made three arguments. First, she claimed the trial court erred in refusing to rule on her objections to SHC’s evidence. But she did not explain how that ruling prejudiced her below, nor does she advance a prejudice argument on appeal. Put differently, she does not explain why SHC would not have been entitled to summary adjudication had the court properly ruled on her objections. Second, Esson argued the trial court failed to consider her evidence in opposition to the summary adjudication motion. The trial court explained that, in fact, it had considered such evidence. Esson offers no reason to doubt the court’s representation. And as discussed above, her evidence failed to raise a triable issue of material fact precluding summary adjudication. Finally, Esson sought a new trial on the ground that the court erroneously concluded that she had not carried her burden to show pretext because it misapplied the law. We concluded above in the context of our de novo review that Esson failed to carry her burden to show pretext.

III. DISPOSITION

The judgment is affirmed. SHC shall recover its costs on appeal.

_________________________________

ELIA, ACTING P. J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

MIHARA, J.

Esson v. Stanford Hospital and Clinics

H044630