Kevin Lewis vs. Kaiser Foundation Hospital

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (Nila Brown)

Filed By: Fortescue, Gregory F.

The motion of Defendants Kaiser Foundation Hospitals (“Kaiser”) and The Permanente
Medical Group, Inc.’s (“TPMG”) (collectively “Defendants”) for summary judgment is
GRANTED.

This case presents an employment dispute. Plaintiff Nila Brown (“Brown”) served as a
TPMG medical assistant between 1990 and 2010, when she was terminated. Brown
(who is African-American) and other plaintiffs have pleaded a variety of statutory FEHA
and common law causes of action against Defendants. Defendants move for
summary adjudication of all six of Brown’s causes of action and, as a result, for
summary judgment.

Brown’s causes of action against TPMG are based on the alleged conduct of
Supervisor Rory Wilkerson (“Wilkerson”), Dr. Mark Hofer (“Dr. Hofer”), and Supervisor
Catherine Burger (“Burger”). Brown alleges that Wilkerson, a Caucasian, called her a
“bitch” and publicly reprimanded her more than once, whereas he did not treat his non-
African-American subordinates in this way. (FAC, ¶¶ 59-60, 74.)

As to Dr. Hofer, Brown alleges that between 2008 and fall of 2009, he refused to talk to
her, (2) accepted a Christmas gift from her “with disdain,” (3) refused to allow her to
work in his office while he was not there (even though he permitted non-African-
Americans to work there while he was away), (4) hung a noose in his office (spring or
summary 2009 (Undisputed Material Fact (“UMF”) UMF 31)), and (5) made a request
not to work with Brown anymore. (FAC, ¶¶ 62-67.)

With respect to Burger, Brown alleges that Burger rebuffed her complaint about the
noose and ultimately terminated Brown on May 28, 2010 (effective June 16, 2010)
after Brown accessed her son’s medical records. (Id. ¶¶ 66, 75; see also UMF 38, 42.)
There is also evidence that Burger “wrote Brown up” in conjunction with a
disagreement Brown had with Wilkerson. (UMF 53.)

Brown also alleges that, when she initially requested bereavement time off after her
mother died on December 31, 2009, her request was denied (although it was
ultimately granted). (Id., ¶ 72.)

On May 3, 2011, before she commenced this action, Brown filed three substantively
identical DFEH complaints. (See Freeman Decl., Exh. F.) The only two individuals
identified in Brown’s DHEF complaints are Burger and Michael Fisher, an employee
labor relations consultant whom TMPG did not employ. (See UMF 2, 6.) The DFEH
complaints contain allegations that Burger and Fisher engaged in verbal, race-based
harassment between October 2009 and Brown’s termination. The DFEH complaints
also contain allegations that Brown was terminated in retaliation for complaining about
the harassment. And the complaints contain an allegation that Brown’s non-African-
American colleagues were treated less severely for workplace violations similar to the
one for which Brown was terminated.

Kaiser’s Motion for Summary Judgment Summary judgment is GRANTED.

Brown’s first, ninth, tenth, thirteenth and fourteenth causes of action are directed at
Kaiser. In the instant motion, Kaiser argues that all these causes of action against it
should be summarily adjudicated because only TPMG-not Kaiser-was Brown’s
employer. In response, Brown has conceded the merits of Kaiser’s position. (See
Opp. at 2, fn. 1.) Accordingly, Kaiser is entitled to summary judgment.

The order granting summary judgment in favor of Kaiser disposes of Issues Nos. 1-4,
12-13,18, 19, 22, 23 and 27 in Defendants’ moving papers.

The First Cause of Action Against TPMG for Harassment Based on Race-FEHA

Summary adjudication is GRANTED.

Issue No. 7: Is TPMG Entitled to Summary Adjudication of the First Cause of
Action Because Brown Cannot Establish That She Was Harassed
Based on Her Race?

First, the court concludes that Brown cannot rely on Dr. Hofer’s conduct to establish
race-based harassment. TPMG argues that Dr. Hofer’s conduct cannot support the
first cause of action because Brown’s claim based upon it is time-barred. TPMG
reasons that, because Brown filed her DFEH complaints on May 3, 2011, and because
all of Dr. Hofer’s conduct occurred more than a year before she filed these complaints,
her allegations about Dr. Hofer’s conduct as stated in the FAC are time-barred under
Government Code § 12960(d). That subdivision generally requires any DFEH
complaint to be filed within one year of the allegedly unlawful conduct. Brown does not
dispute that Dr. Hofer’s alleged misconduct occurred more than one year before she
filed her DFEH complaints.

However, Brown argues that she benefits from the “continuing violation doctrine”
applicable to DFEH complaints filed more than one year after the complained-of
conduct occurred. The continuing violation doctrine applies to “a continuous and
temporally related course of conduct” that occurred partly outside the one-year period
and partly within it. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056-
1059.) The doctrine applies where the employer’s actions were (1) sufficiently similar
in kind, (2) occurred with reasonable frequency (3) and did not acquire a degree of
permanence. (Id. at 1059.)

The evidence does not demonstrate a triable issue of fact as to whether any of Dr.
Hofer’s conduct, including the hanging of the noose, was part of a larger course of
conduct that continued into the year before Brown file her DFEH complaints.
th
(Compare Dominguez v. Washington Mut. Bank (2008) 168 Cal.App.4 714, 717-724.)
There is no evidence that Dr. Hofer explicitly or tacitly conspired with Burger or anyone
else to harass Brown based on her race. Nor is there any evidence that Dr. Hofer’s
conduct toward Brown persisted into the year before she filed her DFEH complaints.
Thus, the evidence cannot be construed to establish a continuing course of raced-
based harassment involving Dr. Hofer, and Brown’s current allegations that Dr. Hofer
harassed her in violation of FEHA are time-barred under Government Code § 12690
(d).

The conduct that did occur during the year before Brown filed her DFEH complaints
does not support a reasonable inference of race-based harassment either. Brown’s
sole argument that Burger conducted herself in a race-based fashion is that she
accepted Dr. Hofer’s non-racial justification for displaying the noose (an asserted joke
about suicide aimed at a doctor with whom Dr. Hofer was sharing office space) and
thus did not discipline him or discuss the incident with him. Assuming that this conduct
was within the year before Brown filed her DFEH complaints, it does not support a
reasonable inference of race-based harassment because there is no evidence that
Burger had authority to discipline Dr. Hofer about the noose incident or anything else.

Nor does not the remaining evidence support an inference of race-based harassment.
Brown argues that Wilkerson engaged in race-based harassment because he
humiliated her, whereas he did not similarly humiliate non-African-American
subordinates. (See, e.g., Opp. Sep. Stmt., UMF 58.) However, the only evidence
supporting this assertion is Brown’s testimony that she herself did not observe
Wilkerson humiliate any non-African-American subordinates. (See Brown Decl., ¶ 2.)
Such evidence of Brown’s perceptions is insufficient to support a reasonable inference
that Wilkerson treated subordinates of different races differently and, therefore, does
not support an inference that his conduct was race-based.

Based on the evidence submitted, TPGM is entitled to adjudication as a matter of law.
Because Issue No. 7 leads the court to grants summary adjudication of the first cause
of action against TPMG, the court need not address and does not address Issues Nos.
5, 6 and 8.

The Fifth Cause of Action Against TPMG for Race Discrimination-FEHA

Summary adjudication is GRANTED.

Issue No. 11: Is TPMG Entitled to Summary Adjudication of the Fifth Cause of
Action Because It Had a Legitimate, Race-Neutral Reason for
Terminating Brown, Whereas Brown Cannot Establish That the
Race-Neutral Reason Was Pretextual?

TPMG has produced sufficient evidence of a race-neutral reason for terminating Brown
and thus has shifted the burden to Brown to produce evidence that the race-neutral
reason was pretextual. Specifically, TPMG has produced evidence Brown was
terminated after a random audit revealed that, in violation of HIPAA and TPMG’s
policies protecting patient privacy, she had accessed a patient’s (her adult nephew’s)
medical records for a non-business reason. (See UMF 69-84.)

In an effort to show pretext, Brown assets that she could have received lesser
discipline for the privacy violations. (See Opp. Sep. Stmt., UMF 92.) She also asserts
that employees who were terminated for privacy violations were terminated because
they had accessed private information for “personal gain,” whereas she accessed her
nephew’s medical records only to assist him. (Id.) Even if Brown is correct, neither of
these assertions supports an inference that she was terminated for reasons related to
her race. Furthermore, there is no factual dispute that, when Brown’s Caucasian
colleagues violated the privacy policies that Brown violated, they were terminated just
as Brown was. (See UMF 94.) Given the absence of any triable issue as to pretext or
the existence of a race-neutral reason for Brown’s termination, TPMG is entitled to
summary adjudication as a matter of law. Because the court summarily adjudicates the fifth cause of action for the reasons
above, it need not address and does not address Issues Nos. 9 or 10.

The Ninth Cause of Action Against TPMG for Retaliation-FEHA

Summary adjudication is GRANTED.

Issue No. 16: Is TPMG Entitled to Summary Adjudication of the Ninth Cause of
Action Because Brown Is Unable to Make a Prima Facie
Case?

Brown’s FEHA cause of action for retaliation is based on complaints she allegedly
made about her son’s supervisor. (See FAC, ¶¶ 187-197.) Brown’s son, Ashley
McGregory (“McGregory”), allegedly worked at a Kaiser location in Roseville,
California. TMPG argues that Brown cannot establish the essential element of
retaliation. (See CACI Instr. 2505 [adverse employment action must be substantially
motivated by the plaintiff’s protected activity].) Specifically, TMPG has produced
evidence that no one arguably associated with the decision to terminate her was
aware she had complained about the treatment her son was receiving at work. (See
UMF 97.) TPMG’s evidence suffices to demonstrate the nonexistence of a triable
issue of material fact and shift the burden of production to Brown.

Brown appears to argue that, because Fisher knew McGregory’s supervisor, the court
may draw a reasonable inference that Fisher was aware of Brown’s complaints before
Brown was terminated. (See Opp. Sep. Stmt., UMF 97.) Evidence that Fisher and the
supervisor knew one another, however, does not support such an inference.
Accordingly, Brown has failed to meet her responsive burden, and TPMG is entitled to
adjudication as a matter of law.

Because the court grants summary adjudication of Issue No. 16, it does not address
Issues Nos. 14, 15 or 17.

The Tenth Cause of Action Against TPMG for Failure to Prevent Discrimination,
Harassment and Retaliation-FEHA

Summary adjudication is GRANTED.

Issue No. 20: Is TPMG Entitled to Summary Adjudication of the
Tenth Cause of Action Because the Underlying Causes of
Action for Harassment, Discrimination and Retaliation Lack
Merit?

TPMG argues that, because it is entitled to summary adjudication of the underlying
causes of action for harassment, discrimination and retaliation, it is also entitle to
summary adjudication of the related failure-to-prevent cause of faction. The court
agrees for the reasons stated above. In granting summary adjudication, the court
notes that Brown has not produced any evidence specifically to oppose the instant
cause of action, nor does her Opposition contain argument directed specifically at this
cause of action.

The Fourteenth Cause of Action Against TPMG for Intentional Infliction of Emotional
Distress Summary adjudication is GRANTED.

Issue No. 25: Is TPMG Entitled to Summary Adjudication of the
Fourteenth Cause of Action Because California’s Workers’
Compensation Remedies Preempt It?
As long as the complained-of conduct falls within the ambit of the employment
relationship, and does not violate fundamental public policy or exceed the bounds of
the normal employment relationship (e.g. go beyond criticism, discipline and
termination), then California’s workers’ compensation exclusivity bars even causes of
action based upon assertedly outrageous conduct. (See Miklosy v. Regents of Univ.
of Calif. (2008) 44 Cal.4th 876, 902.) Thus, assuming Brown has demonstrated
outrageous conduct otherwise sufficient to support an IIED cause of action, there is no
dispute that the complained-of conduct is within the normal scope of the employment
relationship. Moreover, the court has already concluded that TPMG’s alleged conduct
does not violate the public policies inherent in FEHA. (City of Moorpark v. Superior
Court (1998) 18 Cal.4th 1143, 1158.) Accordingly, the workers’ compensation
exclusivity bars Brown’s IIED cause of action, and TPMG is entitled to summary
adjudication.

The court need not address and does not address Issue No. 24.

The Punitive Damages Claim Against TPMG

Summary adjudication is GRANTED.

Because there is no triable issue of material fact that allows Brown to proceed to trial
on any cause of action, her claim for punitive damages fails as a matter of law.

Defendants’ Objections to Evidence

The objections are OVERRULED.

Judicial Notice

Brown’s late-filed, late-served request for judicial notice of documents submitted by Co
-Plaintiff Anthony Jackson in opposition to a separate motion for summary judgment is
DENIED as untimely and irrelevant.

Confidential Information

The court notes that, after Defendants filed exhibits containing assertedly confidential
third-party information, they filed a notice of errata with redacted pages in those
exhibits. A notice of errata is not the proper vehicle to address confidential information
that must be removed from public view.

Defendants are ordered to file and serve a motion or application to seal the pages in
question pursuant to CRC 2.550-2.551. At the time Defendants file their motion or
application, they are directed to lodge an appropriately redacted but otherwise identical
version of the document in which the pages in question currently appear in unredacted
form, viz., the Evidence in Support of Defendants’ Motion. The Clerk of the Court is directed to change the security clearance on
Defendants’ unredacted Evidence in Support of Defendants’ Motion filed on July
18, 2013.

Conclusion

The motion for summary judgment is GRANTED as to both Kaiser and TPMG.

Defendants are directed to submit a revised formal order tracking the language of this
ruling, and a judgment.

The notice of motion does not provide notice of the court’s tentative ruling system, as
required by Local Rule 1.06(D). Counsel for moving party is directed to contact
counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the
court’s tentative ruling procedure. If counsel for moving party is unable to contact
counsel for opposing party prior to hearing, counsel for moving party shall be available
at the hearing, in person or by telephone, in the event opposing party appears without
following the procedures set forth in Local Rule 1.06(B).