Case Number: NC061927 Hearing Date: December 10, 2019 Dept: 27

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

ASGE BERHANE,

Plaintiff,

v.

KAISER PERMANENTE, ET AL.,

Defendant.

Case No. NC061927

MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

TENTATIVE RULING

Date: December 10, 2019

Department 27

MP: Defendant So. Cal. Permanente Medical Group; Janice Wolf

OP: Plaintiff Asge Berhane

Service= OK

INTRODUCTION

Defendants So. Cal. Permanente Medical Group (“Permanente”) and Janice Wolf move for summary judgment on Plaintiff Asge Berhane’s complaint.

1. Wrongful termination in Violation of Public Policy

2. Retaliatory Discharge

3. Violation of Cal. Family Rights Act

4. Int. Infliction of Emotional Distress (“IIED”)

5. Negligence

6. Discrimination/Race

7. Discrimination/Gender

8. Discrimination/Nat’l Origin

9. Discrimination/Disability

10. Retaliation

11. Discrimination/Age

12. Failure to Prevent Discrimination

Alternatively, they seek summary adjudication as to each cause of action and the claim for punitive damages.

ALLEGATIONS

Plaintiff alleges she is an African-American woman, age 57. She was employed by Permanente in the capacity of Laboratory Assistant II at Permanente’s Harbor City facility. Janice Wolf was the Laboratory Operations Director.

Plaintiff’s term of employment began on February 16, 2003 and she was terminated from her employment on January 23, 2018.

Plaintiff alleges that the basis given for her termination, job abandonment, was pretext.

In her 14 years of employment Plaintiff never received any disciplinary action against her and she was never “under investigation” until Janice Wolf became Laboratory Director in 2013.

She generally alleges Wolf “began to pick and bully” Plaintiff resulting in work absences and stress leave.

Plaintiff gives a number of illustrations of what she perceived as a hostile environment. Some of these examples are quite subjective, such as Wolf being rude and giving Plaintiff a “dirty look” causing Plaintiff to feel disrespected and embarrassed. The specifics of other incidents and Plaintiff’s attempts at recourse through Human Resources, her union, and other administrative avenues are unnecessary at this juncture and will be discussed below as necessary. It is enough to say that Plaintiff claims her efforts at redress for alleged mistreatment by Wolf were the source of a hostile environment and retaliation against her. She alleges continuing harassment by Wolf and others acting at Wolf’s direction.

Plaintiff’s allegations of racial discrimination are somewhat conclusory. She does not allege express comments but “innuendo.”

Plaintiff alleges she filed for workers’ compensation benefits on December 10, 2017 and was instructed “to stop communications with Defendants.” She does not allege who gave her these instructions.

Plaintiff alleges she exhausted her administrative remedies before filing suit.

UNTIMELY OPPOSITION

An opposition to a motion for summary judgment is due fourteen days before the hearing. In the present case, that was November 26, 2019.

Plaintiff filed an opposition on December 2, 2019 which is six days late. There is no explanation for the untimely filing. Filing a significantly late opposition is prejudicial to the Defendant whose time for a reply is five days before the hearing. It is prejudicial to the court which has less time to analyze the motion.

It is within the court’s discretion whether to consider late filed papers.

Unless Plaintiff can establish good cause for the late filing the court might exercise its discretion to disregard the late filing. (If the court decides to disregard the opposition the minute order will reflect that decision. CRC 3.100(d))

BURDEN SHIFTING IN EMPLOYMENT CASES

At trial, Plaintiff would have the initial burden of establishing a prima facie case:

“Generally, the plaintiff must provide 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.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

If she does so, the burden shifts to Defendant to establish a neutral non-discriminatory explanation for its adverse employment action (part of the prima facie case). The burden then shifts back to the plaintiff to show the explanation was pretext for discrimination.

But on Summary Judgment the Plaintiff has no initial burden. A defendant employer may either 1) negate an element of the prima facie case or 2) proceed directly to establishing a non-discriminatory reason for the termination. Id.

DISCUSSION

IDENTITY OF DEFENDANT

Permanente indicates it has been erroneously named as Kaiser Permanente Ventures and Kaiser Permanente.

The court grants the request for judicial notice showing Kaiser Permanente Ventures is a dissolved entity.

The declaration of Douglas Pruss, Human Resources Director at Permanente’s South Bay facility, establishes that “Kaiser Permanente” is a trade name and is not a distinct entity.

Southern California Permanente Medical Group is the proper Defendant because it and no other entity was Plaintiff’s employer.

EXHAUSTAION OF ADMINISTRATIVE REMEDIES

Plaintiff alleges she exhausted her administrative remedies, but a summary judgment motion looks behind the pleadings.

Defendant contends administrative remedies were not exhausted as to the 3rd, 6th, 7th, 8th, 9th, 10th and 11th causes of action.

The evidence shows Plaintiff filed claims with the Dept. of Fair Employment & Housing and with Equal Employment Opportunity Commission on July 6, 2017. This was seven months before Plaintiff was terminated. Exhibit 2 reflects these were claims of discrimination based on race, age, and color along with claims of retaliation. At deposition, Plaintiff testified no other claim was later filed (Page 31:6)

These pre-termination claims were based on a disciplinary action against her on March 28, 2017. A “Level IV” Corrective Action was issued for “inappropriate and unprofessional conduct.” The declaration of Qiyamaa Portillo, Assistant Director of Laboratory Operations for the South Bay who issued the discipline, shows Plaintiff had a one-day paid suspension.

Plaintiff’s termination was after her DFEH claim and is not fairly encompassed. Defendant contends any conduct after July 6, 2017 fails for failure to exhaust her administrative remedies.

The court will take argument on this issue.

Defendant further argues that causes of action 3, 7, 8, and 9, to the extent they rely on pre-claim conduct (before July 2017) fail because the DFEH claim did not indicate violation of the CFRA, national origin discrimination or disability discrimination.

This appears to have merit, and the court will take argument on the point.

Defendant does not rely solely on failure to exhaust administrative remedies. As discussed below there are arguments on the merits. The court needs only one reason to grant summary judgment and will focus on the merits as the primary basis for this motion.

NON-DISCRIMINATORY REASONS FOR TERMINATION

The Portillo, Smith and Wolf declarations establish that Plaintiff was granted leave on October 24, 2017 through November 26, 2017. Plaintiff was sent confirmation of leave approval. Under FMLA she had twelve weeks of which 10 weeks and three days remained available.

On November 27, 2017 Plaintiff told Wolf she would not be returning per the previous schedule and provided a medical note. Leave continued from November 26, 2017 through December 10, 2017.

Plaintiff returned to work briefly on December 11, 2017. Plaintiff’s doctor provided another note that she was unable to work from December 12, 2017 through January 7, 2018. This was the last doctor’s note Plaintiff submitted.

Defendant provided notice on December 20, 2017 that she had three weeks and 6 days of leave remaining and her leave would end on January 7, 2018.

It is undisputed that Plaintiff did not return to work on January 8, 2018. This was because she had approved vacation time from January 8 through January 17, 2018. Plaintiff had requested vacation from December 25, 2017 through January 31, 2018. Plaintiff testified at deposition that she was aware that some of her vacation request was granted and some denied. (Page 96) She was scheduled to return to work on January 18, 2018. She did not return on that date. Although company policy, of which Plaintiff was aware, required a “call-in” to report absences, Plaintiff made no call. Portillo declares she tried to contact Plaintiff and left a phone message, although Plaintiff testified she did not recall receiving a message. Plaintiff did not return the call, in any event.

Plaintiff did not report to work on January 19, 2018 and did not phone in to make a report.

Portillo declares she called Plaintiff to ask about work status and sent her a letter by overnight mail. Plaintiff testified she found this letter on her balcony in a FedEx envelope. (Page 104 – 105) The letter is in evidence and it stated that she had been scheduled to return to work on January 18 but had not done so nor submitted a doctor’s note. The letter concluded that unless she provided information she would be deemed to be away from work without authorization. Plaintiff did not respond to the letter.

After four days without an appearance by Plaintiff, along with Plaintiff’s failure to respond to contact efforts, Plaintiff was sent a notice of termination on January 23, 2018. Plaintiff testified she did not return to work as scheduled and did not report her absence. (Pages 100 – 101) She admitted she did not provide a doctor’s note for absences past January 7, 2018.

The court finds that Defendant has met its initial burden of establishing a legitimate non-discriminatory reason for Plaintiff’s termination.

Defendant anticipates Plaintiff will argue she believed she was placed on leave through May 31, 2018 because an FMLA certification had an expiration date of May 31, 2018. As Defendant points out, the only reasonable interpretation of the form is that the form expired on May 31, 2018. There is nothing which indicates her physician placed her on leave through that date. To the contrary, the dates of FMLA leave are expressly set forth. Plaintiff testified she did not know if the expiration date refers to the form or not.

Defendant argues Plaintiff cannot establish a prima facie case of discrimination. As noted above, Plaintiff has no such burden until an element is negated. Th court infers Defendant is arguing the evidence recited above negates the element of a discriminatory motive.

The burden is shifted on causes of action 1, 6, 7, 8, 9 and 11.

RETALIATION

Defendant again argues it is doubtful Plaintiff can make out a prima facie case and the court reiterates that Defendant has the initial burden, not Plaintiff.

“To establish a prima facie case of retaliation under the FEHA, a plaintiff must show “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1020.)

The legitimate non-discriminatory reason for termination also shifts the burden to Plaintiff on the 2nd and 10th cause of action.

CFRA

The allegation is that the California Family Rights Act was violated because Plaintiff was denied four weeks of medical leave available at the time of termination.

The evidence before the court is that Plaintiff was granted every request for leave she properly made.

The burden is shifted on the third cause of action.

FAILURE TO PREVENT DISCRIMINATION

As Defendant notes, if there is no substantive claim for discrimination which survives then this cause of action.

IIED

Defendant argues that this claim is preempted by workers’ compensation.

“In order to properly manage its business, every employer must on occasion review, criticize, demote, transfer and discipline employees. Employers are necessarily aware that their employees will feel distressed by adverse personnel decisions, while employees may consider any such adverse action to be improper and outrageous. Indeed, it would be unusual for an employee not to suffer emotional distress as a result of an unfavorable decision by his employer. (Cf. Magnuson v. Burlington Northern, Inc. (9th Cir. 1978) 576 F.2d 1367, 1369 [“[every] employee who believes he has a legitimate grievance will doubtless have some emotional anguish occasioned by his belief that he has been wronged”].)

We have concluded that, when the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer’s decisions as manifestly unfair, outrageous, harassment or intended to cause emotional disturbance resulting in disability.” (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.)

Even without preemption Defendant argues that the allegations of extreme and outrageous conduct are insufficient. This is a challenge to the sufficiency of the pleading. That is not foreclosed on summary judgment:

““A defendant’s motion for summary judgment necessarily includes a test of the sufficiency of the complaint. When a motion for summary judgment is used to test whether the complaint states a cause of action, the court will apply the rule applicable to demurrers and accept the allegations of the complaint as true. Because the time for a demurrer had passed by the time the Counties’ motion was filed, we treat the motion as a motion for judgment on the pleadings.

Accordingly, for purposes of this opinion, we treat the properly pleaded allegations of [the Airlines’] complaint as true, and also consider those matters subject to judicial notice. ‘Our primary task is to determine whether the facts alleged provide the basis for a cause of action against defendants under any theory.’” American Airlines, Inc. v. County of San Mateo, (1996) 12 Cal. 4th 1110, 1117-1118 [internal citations omitted]

Defendant contends Plaintiff’s identification of conduct causing emotional distress, all of which was by Wolf, are dirty looks, verbal abuse, “Talking down” (i.e. condescension), micromanagement, the incident where Wolf stated there were “cultural differences”, failure to notify Plaintiff of changes to work assignment, treated plaintiff differently than other employees, instructed employees to photograph plaintiff at work.

The only support for this summary as an exclusive list is the notation “See supra note 19.” This is very unhelpful. First, the use of single spaced footnotes appears to be an effort to avoid page limitations. This is a brief and not a law review article. More importantly, footnote 19 does not pertain to IIED but to form issued by the Dept. of Labor with the expiration date.

The court would agree that if this summary is correct, then IIED is not stated:

“A claim for intentional infliction of emotional distress has the following elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) severe emotional distress suffered by the plaintiff; and (3) actual and proximate causation. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) A defendant’s conduct is extreme and outrageous when it is “so ‘“‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ ” (Id. at p. 1051.) “‘[M]ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities’ ” do not constitute extreme and outrageous conduct. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496, italics omitted.) Instead “‘[t]he requirements [for establishing actionable conduct] are rigorous, and difficult to satisfy . . . .’ [Citations.] [¶] On the spectrum of offensive conduct, outrageous conduct is that which is the most extremely offensive. Depending on the idiosyncrasies of the plaintiff, offensive conduct which falls along the remainder of the spectrum may be irritating, insulting or even distressing but it is not actionable and must simply be endured without resort to legal redress.” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129. [Emphasis Added])

At oral argument Defendant must corroborate the basis for its summary. If accurate, the court will grant summary adjudication of this cause of action.

PUNITIVE DAMAGES

Punitive damages against a corporate employer for the acts of its employees is covered in CC §3294(b):

“An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

“Managing agent” is a term of art:

“We therefore conclude that in amending section 3294, subdivision (b), the Legislature intended that principal liability for punitive damages not depend on employees’ managerial level, but on the extent to which they exercise substantial discretionary authority over decisions that ultimately determine corporate policy. Thus, HN12 supervisors who have broad discretionary powers and exercise substantial discretionary authority in the corporation could be managing agents. Conversely, supervisors who have no discretionary authority over decisions that ultimately determine corporate policy would not be considered managing agents even though they may have the ability to hire or fire other employees. In order to demonstrate that an employee is a true managing agent under section 3294, subdivision (b), a plaintiff seeking punitive damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporation’s business.” (White v. Ultramar (1999) 21 Cal.4th 563, 576-577.)

Each of the individuals involved with plaintiff’s termination (Wolf, Smith, Portillo) declares that they are not and never have been officers or directors of the corporation. They further declare they do not have the authority to create, modify, or deviate from corporate policy.

This appears to satisfy the initial burden for Permanente, but not Wolf as an individual.

The court is inclined to grant summary adjudication of the claim for punitive damages for Permanente. Obviously, if all claims fail as against Wolf, then punitive damages would fail as well.

Defendant must address Wolf’s potential liability at oral argument.

The only evidence in opposition is Plaintiff’s deposition. In the highlighted portions plaintiff testifies:

1. Wolf created stress for her beginning in 2014 when “she accused me like I switch a specimen of the patient. So I got suspended for close to two months and brought back with no proof.” It is unclear what “proof” was at issue. (Ex A page 67)

2. Wolf was condescending to her (“talking down”) Plaintiff is asked why she thought Wolf was acting because of plaintiff’s race. The answer is not very clear but appears to be that Wolf had no “proof.” (Ex A page 74)

3. In a portion on page 90 which is not entirely comprehensible out of context (the prior page is 74 and then leaps to page 104) Plaintiff discusses a 2016 incident of some sort apparently concerning her work schedule.

There are more portions, but after a review of them all the court sees nothing to establish that the non-discriminatory reason for her termination was pretext. At best her subjective views are vague. For instance., she is asked at page 129 why Wolf “did anything to you because of your gender.” She vaguely responds that men were treated differently.

The same is true with her testimony on national origin (page 137). It appears her testimony didn’t even relate to national origin but on her race (she looked down on black people). This is hardly evidence of discriminatory animus.

The court disagrees that the moving party did not meet its burden. It did:

1. A legitimate non-discriminatory reason for plaintiff’s termination and plaintiff offers no evidence of pretext. The court disagrees that there is any evidence which raises an inference of discrimination based on race, age, national origin or any other protected category. There is no direct evidence that Wolf did not like African -Americans, only plaintiff’s subjective impressions. There is no testimony about racial comments or discrimination against other African-Americans. The testimony offered simply does not allow a reasonable inference of discriminatory animus.

The fact remains that plaintiff did not return to work when scheduled. There is no colorable evidence of retaliation either express or inferred.

2. Plaintiff did not exhaust administrative remedies. It is undisputed that no further claim was filed with DFEH after termination. Plaintiff argues her original claim mentioned discrimination, but it could not have embraced actions which had not yet occurred.

3. None of the conduct alleged or testified to rises to the level of extreme or outrageous conduct.

The court is inclined to grant the motion in its entirety. Plaintiff did not meet the shifted burden to show pretext. The court invites plaintiff’s counsel to point out which of the highlighted portions of plaintiff’s testimony allows such an inference. If there was no discrimination against plaintiff then there was no failure to prevent discrimination. Plaintiff was granted all of the leave she requested. The legitimate basis for termination negates retaliation.

Exhaustion of administrative remedies is a closer issue, but the court does not need to rely upon that issue.

DATED: December 10, 2019 _____________________________________

MARK C. KIM Judge of the Superior Court