2016-00189518-CU-OE
Krystle Tash vs. Kaiser Foundation Health Plan, Inc.
Nature of Proceeding: Motion for New Trial
Filed By: Postar, Robert
*** 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 below will be addressed at the hearing. The parties should also be prepared to point to specific admissible evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***
Plaintiff Krystle Tash’s Motion for New Trial challenging the granting of defendants The Permanente Medical Group, Inc. (“TPMG”) and Sue Matchell’s Motion for Summary Judgment (“MSJ”) is DENIED.
Factual Background
Plaintiff’s Complaint. This action arises out of plaintiff’s employment with defendant TPMG, which began in 2006. Plaintiff alleges that starting around 2010 her supervisor, Sue Matchell, engaged in conduct allegedly constituting constitute harassment, discrimination, retaliation, intentional infliction of emotional distress (“IIED”) and/or a refusal to accommodate plaintiff’s need to pump breast milk for her child during work hours.
Among other things, defendant Matchell is claimed to have disclosed to a co-worker that plaintiff was pregnant; made derogatory comments about plaintiff’s hair, makeup, tattoos, piercings, weight fluctuations, multiple marriages, personal relationships and being an unmarried mother who had not finished school; followed plaintiff to the bathroom to talk about non-urgent matters when she had morning sickness; asked security to pull video of plaintiff coming into the building to see if she had allowed another employee to use plaintiff’s badge; requested security go to plaintiff’s car while she was pumping breast milk and to tell her Matchell wanted to find her; offered one employee the use of Matchell’s office for pumping breast milk but not offering it to plaintiff; refused to allow plaintiff to use an empty office in Pharmacy Administration for pumping even though someone else said plaintiff could; required plaintiff to cover positions at other facilities without following the union agreement regarding coverage for sick employees; moved plaintiff’s desk five times in 3½ years; stared out her office window when plaintiff was pumping breast milk at her desk, causing plaintiff to pump in her car for more privacy; once told plaintiff if she left early to take her baby to the hospital, it would “count against you for attendance;” and refused to allow plaintiff to split her lunch hour into two 30-minute breaks to allow time for pumping but allowing others to adjust their work hours for non-medical reasons.
In early 2014 plaintiff resigned from TPMG. On 1/24/2014 plaintiff submitted a letter of resignation stating her “last day of work” would be 2/7/2014. Although plaintiff remained a TPMG employee through 2/7/2014, she did not actually return to the workplace after 1/24/2014 due to a leave of absence. Plaintiff contends Matchell’s harassment, discrimination, retaliation and IIED continued after her resignation. In particular, plaintiff avers that, when she asked to inspect her personnel file, she was told portions of the file had been lost. Plaintiff claims she was told by another employee that Matchell had been shredding documents and purging old employee files, and when plaintiff requested a copy of her medical records, it took five days for them to be provided and another employee told plaintiff that Matchell kept a CD containing a copy of the medical records. Plaintiff also asserts that after resigning from TPMG in early 2014, plaintiff applied for various other positions with “the Kaiser Defendants” but was repeatedly rejected “despite her over-qualification” in retaliation for previously complaining about “unlawful sex discrimination” and attempts to secure reasonable accommodations.
Plaintiff filed an administrative complaint with the Department of Fair Employment and Housing (“DFEH”) on 1/24/2015, and commenced the present action on Monday, 1/25/2016 against TMPG, Ms. Matchell and others. The complaint purports to assert eight causes of action. Although most of these claims are brought pursuant to the Fair
Employment & Housing Act (“FEHA”) the complaint also includes common law claims for constructive discharge/wrongful termination and IIED. The court notes that most of the causes of action allege the following or something substantially similar:
Defendants refused to provide adequate time or accommodations for Plaintiff to express her breast milk. When Plaintiff pursued a solution, her supervisor, Defendant Matchell, changed in demeanor toward Plaintiff and began to harass her, establishing an offensive and hostile work environment, and violating Plaintiffs right to a workplace free of sex discrimination and harassment. The resulting harassment and intolerable discriminatory conditions forced Plaintiff to resign. (See Compl., ¶¶28, 39, 49, 62, 75, 106-107.)
Defendant’s MSJ and Opposition. Defendants moved for summary adjudication of each of cause of action (“COA”) and claim for punitive damages. Plaintiff opposed, arguing that defendants “are guilty of discrimination…, sexual harassment, retaliation, failure to accommodate, and wrongful termination…among other employment and civil rights violations” which “forced [plaintiff] to resign from her job.” According to the opposition, the “harassment” began in 2012, when defendant Matchell “breached Plaintiff’s privacy by disclosing to co-workers that she was pregnant…” From that point on, “Plaintiff experienced continuing acts of discrimination through the rest of her employment,” as well as after the day she resigned in February 2014. In short, plaintiff maintained that she could establish every element of her COA and that all but 12 of defendants’ 46 Undisputed Material Facts (“UMF”) were “disputed” so as to defeat summary judgment/adjudication.
Tentative Ruling Granting MSJ. This Court issued a lengthy tentative ruling on defendants’ MSJ which ruling indicated that all of plaintiff’s 43 written objections to defendants’ evidence were overruled and identified the 37 of 85 written objections by defendants that were overruled before addressing each of the 15 issues presented by defendants for summary adjudication. The Court granted summary adjudication as to some of these 15 issues while denying it as to others based on whether or not plaintiff had met her burden of producing admissible evidence sufficient to establish the existence of at least one triable issue of material fact precluding summary adjudication. Although summary adjudication was denied on some issues, summary judgment of the entire complaint was entered because the issues on which summary adjudication was granted disposed of all causes of action as well as the punitive damages claim.
Oral Argument. Both sides requested a hearing. Plaintiff first argued that defendants’ motion should be denied for various procedural reasons, but she did not identify any specific irregularity which was claimed to “prejudice[] the opposition” or otherwise affected the outcome of the motion. Plaintiff next questioned whether her objections to evidence were considered or addressed by the Court (although she conceded the tentative ruling did state that all of her objections were overruled). Still, plaintiff insisted that without rulings on the objections she was unable not only to determine what evidence the Court may have relied on in granting summary judgment but also to identify any admissible evidence which would create a triable issue of fact. Plaintiff asserted that there is evidence she suffered an adverse employment action (being “written up” by Ms. Roccucci for coming in late which prevented plaintiff from later transferring to a different department; refusing to allow plaintiff to “split” her lunch break and to use an empty office in Pharmacy Administration) as a result of her need to pump breast milk, “an activity intrinsically linked to plaintiff’s sex.” Plaintiff discussed why the “copy room” was inadequate for pumping milk, prompting plaintiff to use her car and how it was “harassment” for Ms. Matchell to send a security guard to find plaintiff so she could speak to her. Plaintiff claimed that when all these and other acts are considered collectively, there is a triable issue of fact relating to the question of whether she suffered harassment and discrimination and whether it was at least in part motivated by the fact plaintiff was a breastfeeding woman who needed to pump milk.
After a brief recess, plaintiff asserted that Ms. Matchell made derogatory comments about her “physical appearance as a woman,” being pregnant without being married, being divorced, not finishing college, looking fat or thin, and even questioning how she spent her money, comments claimed to be “all directly related to sex.” Ms. Matchell’s following plaintiff into the bathroom when she was experiencing morning sickness was also described as “harassment…[and] discrimination on account of sex.” Plaintiff added that work assignments which disregarded her union seniority and her desk being moved five times were adverse employment actions, while plaintiff felt “threatened” by Ms. Matchell when plaintiff had to leave work early when her son was hospitalized with an allergic reaction (although plaintiff’s own testimony was that Ms. Matchell merely asked if plaintiff could wait a few more minutes until the end of her shift so as to avoid exacerbating her admitted history of “attendance issues”). Plaintiff closed by reiterating her concern that she did not know how the Court ruled on the parties’ objections to evidence and whether the Court ‘threw out’ any of defendants’ evidence.
Court’s Ruling on Submitted Matter (“ROSM”). In its ROSM, the Court affirmed the tentative ruling and explained that plaintiff’s argument about the tentative ruling not addressing or ruling on plaintiff’s objections to evidence was without merit in that the tentative ruling explicitly stated, “Plaintiff’s written objections to defendants’ evidence are overruled,” adding that plaintiff’s “extensive oral argument” did not include “any argument regarding any particular objection” and that her objections consisted largely of inconsequential objections to evidence like meritless objections to Ms. Matchell’s statement of “never [being] an officer or director of TPMG” based on (1) her lack of personal knowledge, (2) speculation, (3) improper opinion or conclusion and (4) improper argument. Moreover, based on the express language of Code of Civil Procedure §437c(q) (which was recently added in 2015), a trial court need only rule on objections to evidence deemed “material to [the] disposition of the motion” and “objections not ruled on…shall be preserved for appellate review.” Notwithstanding plaintiff’s failure to identify any specific concern relating to the tentative ruling’s explicit rulings on her objections to evidence, the Court proceeded to set forth the various grounds why plaintiff’s objections were properly overruled.
Plaintiff’s Motion for New Trial. Plaintiff now seeks a new trial on the following grounds: (1) Irregularity in the proceedings of the court,…or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; (2) insufficiency of the evidence to justify the verdict or other decision; and (3) error in law, occurring at the trial and excepted to by the party making the application. (Code Civ. Proc. §657(1), (6), (7).) For the reasons detailed below, plaintiff maintains this Court erred in granting summary judgment in favor of defendants.
Defendants’ Opposition. Defendants oppose, arguing first that the present motion is untimely and that plaintiff failed to meet the standard required to obtain a new trial on the MSJ. The opposition contends the Court’s evidentiary rulings do not support a new trial since the Court properly ruled on the objections to evidence and plaintiff was
not prejudiced since she had an opportunity to address them at oral argument, since the rulings were correct and since the outcome would be the same even if some of the rulings were incorrect. Defendants further assert the Court did not abuse its discretion in granting summary adjudication on the COA for discrimination, failure to prevent discrimination and constructive discharge because plaintiff failed to show that any of the alleged adverse employment actions were the result of her being a breastfeeding woman and that there was a violation of any public policy alleged in the complaint. Summary adjudication on the COA for harassment, constructive discharge and retaliation was also proper inasmuch as there is no evidence any alleged harassment was motivated by plaintiff’s status as a breastfeeding woman or some other protected characteristic or conduct. Finally, the opposition maintains that the court correctly determined both the failure to accommodate and failure to engage in the interactive process COA were untimely and that the defects plaintiff claims exist in defendants’ separate statement neither were neither prejudicial nor warranted denial of the motion.
Plaintiff’s Reply. According to the reply, plaintiff’s motion for new trial was timely filed and defendants’ attempt in the opposition’s Footnote 1 to incorporate by reference the entirety of the “summary judgment papers” is “fatally defective.” Plaintiff also asserts that she properly submitted the report issued by Hastings College of the Law relating to discrimination against breastfeeding women and the opposition included no meaningful response to it, so it should be considered by the Court. The reply concludes by insisting that plaintiff’s administrative complaint to the DFEH was timely and that he opposition to the MSJ included “substantial admissible evidence of discrimination and adverse employment actions,” before incorporating by reference the entirety of the papers filed in opposition to the MSJ and requesting the Court permit a jury to consider plaintiff’s evidence of discrimination.
Request for Judicial Notice
Plaintiff’s Request for Judicial Notice is granted. With respect to law review article published 12/31/2018 and attached as Exhibit E, the Court takes judicial notice of its existence but not the truth of its contents. (See, e.g., Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121; Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [“There exists a mistaken notion that this means taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and affidavits. … A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.” (Emphasis added).])
Analysis
Timeliness of New Trial Motion. Code of Civil Procedure §659(a) specifies that a party seeking new trial shall file notice of his or her intention, designating the grounds upon which the motion will be made and whether it will be made upon affidavits or the minutes of the court, or both, either (1) after the decision is rendered and before the entry of judgment or (2) within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest. In the case at bar, defendants personally served notice of entry of judgment on 1/9/2019 and less than 15 days later, plaintiff timely served by hand her notice of intent to move for new trial. Thus, the Court rejects defendants’ suggestion that the present motion must be denied as untimely and now turns to the specific arguments raised in plaintiff’s moving papers.
Defendants’ Objections to Evidence. Relying primarily on Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, plaintiff contends she is entitled to a new trial because she was prejudiced by the court’s failure to “individually rule on defendant’s [ sic] objections to evidence and to state the basis for each ruling” but this contention does not withstand scrutiny.
The facts of Nazir bear scant similarity to the case at bar. The defendants in Nazir filed a motion for summary judgment/adjudication seeking adjudication of 44 issues, most of which were not proper subjects for summary adjudication. (Nazir, at 249.) The motion was supported by a 196-page separate statement with “hundreds of facts, many of them not material.” (Id.) The opposition had a 1,894-page separate statement along with 47 objections to evidence, while the reply papers included a “not so proper[] …297-page ‘Reply Separate Statement’, 153 pages of ‘Exhibits and Evidence in Support of Defendants’ Reply’ [and]…324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff’s declaration, many of which…were frivolous.” (Id., at 249, 254.) Although the trial court issued a tentative ruling on the motion for summary judgment/adjudication, the tentative ruling “made no mention of the objections” by either side and then, after taking the matter under submission, the trial court issued a final order granting summary judgment. The order stated in pertinent part, “Despite its girth, Plaintiff’s opposition to the separate statement of material facts is mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact” before ultimately concluding “with these two one-sentence rulings”:
2. Plaintiff’s 47 evidentiary objections are OVERRULED.
3. Defendants’ evidentiary objection No. 27 is OVERRULED, and the remainder of the[ir] evidentiary objections are SUSTAINED.
(Id., at 254.)
Finding “a record the likes of which we have never seen–not here, not in the combined 11 years of law and motion experience of the members of this panel,” the Court of Appeal nevertheless engaged in a de novo review of “an order granting summary judgment that purports to sustain without explanation 763 out of 764 objections to evidence” and concluded “the trial court’s ‘ruling’ on defendants’ objections was manifestly wrong” before reversing the summary judgment on the ground “that eight causes of action must be decided by a jury.” (Id., at 255.)
In contrast, the tentative ruling issued by this court in advance of the 11/2/2018 hearing included express rulings not only on all of plaintiff’s 43 written objections to defendants’ evidence were but also all of defendants’ 85 written objections to plaintiff’s evidence, specifically identifying the 37 objections which were not sustained. Moreover, of the 48 objections which were sustained, 23 objections by defendants asserted just a single ground and another 15 objections, while they may have asserted more than one ground, each of the multiple grounds cited by defendants was substantively the same. Therefore, it was not reasonably necessary for the court to provide any further explanation in its tentative ruling as to these 37 objections and it should be pointed out that all of the 10 remaining objections that were sustained asserted just two distinct grounds, both of which plaintiff could have easily addressed at oral argument. For these reasons, this court concludes it did not err in failing to state the grounds on which defendants’ objections to evidence were sustained.
Moreover, plaintiff has still failed to demonstrate how this actually caused her any prejudice in connection with the granting of summary judgment. It must be noted that, after erroneously stating that the Court had not ruled on the evidentiary objections at all, plaintiff did not argue about any specific evidentiary rulings at oral argument. (See Postar Decl., Exh. B (Trans. at p. 10:13 – 13:11.) Plaintiff knew from the tentative ruling which objections had been sustained and which had been overruled. Plaintiff also knew the objections she had made and the objections that the defense had made because those objections were made in written form. As the defense notes in its opposition, the evidentiary rulings were “no great mystery.” (Defense Opp. at p. 9:25.) But at the point when the Court was ready to hear plaintiff address objections to specific pieces of evidence, there was a pause in the argument before plaintiff simply turned to arguing the summary adjudication issues rather than the objections. (Postar Decl., Exh. B (Trans. at p. 12:21 – 13:4).) This behavior was inexplicable.
In making the motion for a new trial, plaintiff now makes the more specific argument regarding objections that she never made at the hearing on the motion. Plaintiff asserts that the Court improperly sustained defendants’ Objection Nos. 6, 8, 12, 32, 34, 45, 46, 58, 60 and 80 since the questioned evidence was based on “Plaintiff’s personal knowledge” (Mot. For New Trial, p.5:20-22), but this assertion misses the mark. Importantly, of these 10 objections to evidence, only one actually cited plaintiff’s “lack of personal knowledge” as a basis for the objections (i.e., Obj. 45) and thus, the Court could not have erroneously concluded plaintiff lacked “personal knowledge” with respect to the evidence challenged in Objection Nos. 6, 8, 12, 32, 34, 46, 58, 60 or 80. Moreover, Objection 45 also claimed the cited passage from plaintiff’s declaration in opposition was conclusory, speculative and lacked foundation but plaintiff, in failing to even address these other grounds, has failed to demonstrate that the sustaining of Objection 45 on each of these additional grounds was error. Regardless, the Court must here affirm its ruling on Objection 45 inasmuch as plaintiff failed in her declaration to lay the foundation for her statement about the security guard being sent to the parking lot by Ms. Matchell since the security guard’s own statement to plaintiff that he was sent by Ms. Matchell is itself inadmissible hearsay and defendants’ objection to it was sustained on the ground of hearsay. (See, Obj. 46). Even if Objection 45 were improperly sustained, plaintiff has not established that this evidence’s exclusion somehow altered the outcome of the earlier motion since the evidence of the security knocking on plaintiff’s car window constitutes actionable harassment, discrimination or retaliation which was in some manner motivated by the fact plaintiff was a woman, was breastfeeding or had engaged in any protected activity. Finally, the Court finds that Objection Nos. 6, 8, 12, 32, 34, 45, 46, 58, 60 and 80 were properly sustained based on the grounds advanced by defendants including but not limited to lack of foundation, conclusory and hearsay.
According to plaintiff’s motion, the Court erroneously sustained defendants’ Objection Nos. 15, 21, 26 and 80 because the evidence challenged by these four objections was based on “Plaintiff’s personal perception” (Mot. For New Trial, p.5:24-26) but this argument also falls short. In Objection 15, defendants insisted plaintiff’s statement about Ms. Matchell’s “derogatory and demeaning comments” about plaintiff lacked foundation, was conclusory and inadmissible hearsay and these objections were properly sustained. Even if they should have been overruled, plaintiff suffered no prejudice inasmuch as plaintiff admits these allegedly “derogatory and demeaning comments” related to plaintiff’s hair, tattoos, piercings, and how plaintiff spent her money, none of which tends to reveal any animus against plaintiff as a result of being a breastfeeding woman or engaging in some protected activity. Likewise, the Court’s ruling on Objection Nos. 21 and 26 (relating to Ms. Matchell’s comments about plaintiff not having finished school, not being married and having another child and to Ms. Matchell following plaintiff to the restroom), even if incorrect, did not alter the outcome of the summary judgment motion. The sustaining of Objection 80 was correct since plaintiff’s own ‘feeling’ or belief that Ms. Matchell was “more aggressive with me” or “more harassing towards me” was proper as these statements in plaintiff’s declaration are conclusory and fail to provide the requisite factual foundation for the improper legal conclusion of Ms. Matchell “harassing” plaintiff.
Plaintiff’s Objections to Evidence. Although buried within the section challenging the Court’s rulings on defendants’ objections to evidence, plaintiff also suggests a number of her own objections to defendants’ evidence were improperly overruled. Given that plaintiff does not specifically contend that any or all of these allegedly erroneous rulings altered the outcome of the summary judgment motion, it remains unclear if the allegedly erroneous rulings could constitute a valid ground for a new trial but the Court will nevertheless address these objections as well.
Plaintiff claims the Court erred in overruling her Objection Nos. 8, 9, 12, 26, 32, 35, 37 and 43 because the evidence cited therein was inadmissible under Evidence Code §1104 [“Except has provided in Sections 1102 and 1103, evidence of a trait of a person’s character with respect to care or skill is inadmissible to prove the quality of his conduct on a specified occasion.”]. (Mot. for New Trial, p.5:14-16.) However, none of the evidence challenged by these eight objections is “evidence of a trait of a person’s character with respect to care or skill” nor is it offered “to prove the quality of his conduct on a specified occasion” but rather, the evidence objected to relates solely to the two declarants’ respective state of mind and/or knowledge, neither of which is made inadmissible by Evidence Code §1104.
Plaintiff maintains that her Objection Nos. 24 and 25 should have been sustained under Evidence Code §702(a) [“testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter…”] and §1160 [“… statements, writings, or benevolent gestures expressing sympathy…relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action [but a] statement of fault…shall not be inadmissible pursuant to this section.”]. (Mot. for New Trial, p.5:17-19.) Objection 24 was properly overruled because Ms. Matchell’s declaration avers that ‘to the best of her recollection,” one of plaintiff’s prior positions was “a floating position that required some travel” and thus, the declarant manager established sufficient personal knowledge for her statement to be admissible even though plaintiff herself may testified she ‘did not remember’ “floating” being a part of her job description but regardless, there is no admissible evidence that such Ms. Matchell’s management decision to have plaintiff occasionally cover vacancies at different TPMG work sites were actually motivated by plaintiff’s status as a woman, a breastfeeding mother or having engaged in any protected activity. Likewise, Objection 25 was properly overruled because Evidence Code §1160 simply has no application to the facts of this case inasmuch as §1160(a) governs the admissibility of “statements, writings, or benevolent gestures expressing sympathy…relating to the pain, suffering, or death of a person involved in an accident,” with accident being defined in §1160(b)(1) as “an occurrence resulting in injury or death to one or more persons which is not the result of willful action by a party,” and the statement being objected to merely attests that Ms. Matchell has “no animosity or ill will towards mothers who choose to breastfeed their children or who pump breastmilk…at work.”
Finally, to the extent plaintiff’s new trial motion further asserts suggests she was prejudiced by the court’s failure to provide the bases for its rulings on her objections to evidence until after the 11/2/2018 hearing, this claim too must be rejected. As noted above, the tentative ruling issued by this court contained express rulings on all of plaintiff’s 43 written objections to defendants’ evidence and thus, the Court can find no genuine obstacle to plaintiff’s ability to argue at the 11/2/2018 hearing that one or more of these objections was improperly overruled. (Indeed, in the present motion plaintiff dedicates less than 10 lines on Page 5 of the moving papers to identify those objections she claims were improperly overruled and why.) For unknown reasons, plaintiff did not address any particular objection or group of objections which she thought should have been sustained but instead curiously questioned whether the Court had even addressed her objections to evidence before insisting that without rulings on her objections, she was unable to determine what evidence the Court relied on in granting summary judgment. In reality, this Court was mystified by plaintiff’s characterization of the tentative ruling not addressing her objections to evidence that it seemed necessary to revisit the issue in the ROSM, clarify the express rulings on plaintiff’s objections and to explain the objections consisted largely of “inconsequential” objections to evidence, adding that pursuant to Code of Civil Procedure §437c(q) a trial court need only rule on objections to evidence deemed “material to [the] disposition of the motion” and “objections not ruled on…shall be preserved for appellate review.”
Defendants’ Reply Papers. Also included in the section relating to the Court’s rulings on defendants’ objections to evidence is plaintiff’s “objection” to defendants’ separate statement in reply, supplemental evidence submitted with the reply, and response to plaintiff’s own objections to evidence. While plaintiff maintains it was prejudicial for the Court to refuse to strike these improper filings and/or to continue the hearing on the summary judgment so plaintiff could address these filings, the fact remains that none of these documents filed on 10/26/2018 was considered by the Court in preparing its tentative ruling in advance of the 11/2/2018 hearing date or in affirming that tentative ruling after the 11/2/2018 hearing. Having now examined these reply documents in connection with the present motion for new trial, the Court concludes that none would have altered the outcome of the summary judgment motion and therefore, plaintiff could have suffered no prejudice as a result of the Court’s overruling her objections to same and/or denying her request for a continuance in order to respond to these reply papers.
Gender Discrimination and Failure to Prevent Same. According to plaintiff, this Court erred in ruling that she had offered no admissible evidence of suffering any adverse employment action which was actually motivated in whole or part by plaintiff’s gender, especially since the Court found a triable issue of fact relating to the constructive termination claim. (To the extent plaintiff also suggests the alleged adverse employment action was motivated by her protected activity of requesting lactation accommodation, this would be relevant to plaintiff’s cause of action for retaliation.) Plaintiff contends the following evidence, when viewed as a whole, was sufficient to establish a triable issue of material fact precluding summary adjudication of the discrimination and failure to prevent causes of action:
(1) When Plaintiff returned from maternity leave, she initially began expressing breast milk at her desk, which was shielded by privacy walls and which was located in a quiet area;
(2) Plaintiff requested a reasonable accommodation to express breast milk during the day;
(3) Amie Vaughn offered an office in the Pharmacy Department for pumping;
(4) Plaintiff called Deborah Royalty, TPMG’s Chief of Administrative Operations at TPMG, and told her assistant she needed to pump breast milk during the day, her requests for reasonable accommodation were refused and plaintiff suffered from discrimination, harassment and retaliation;
(5) While at work, plaintiff’s son had an allergic reaction which necessitated an emergency room visit but Ms. Matchell told plaintiff she should finish her shift and it would count against plaintiff if she left early;
(6) Plaintiff decided she couldn’t take it anymore when Ms. Matchell told her she could not leave work early;
(7) Plaintiff estimates that probably four of her desk moves were unjustified and that others did not always have their desks moved when they got different job assignments; and
(8) Ms. Matchell had plaintiff to cover shifts at other Kaiser departments, so plaintiff spoke to the union about this because other employees with the same job position were not required to float to other departments. (Mot. for New Trial, p.7:3-p.8:6.)
Assuming arguendo that the evidence cited as support for the eight statements cited above is admissible, the Court finds that none of these statements establishes any adverse employment action necessary for a discrimination claim. Even if they did, plaintiff identified no admissible evidence which tends to show that any of the alleged adverse actions was actually motivated in whole or part by plaintiff’s gender, status as a breastfeeding woman or requests for lactation accommodation. More specifically, the first six statements do not show any adverse employment action taken against plaintiff and while statements (5) and (6) suggest Ms. Matchell told plaintiff she could not leave work early and/or would be penalized if she did, plaintiff’s actual deposition testimony at Page 167:21-25 was that Ms. Matchell merely asked: “Can’t you just stick it out a little longer[?]” Regardless, plaintiff admitted in response to UMF 13 that Ms. Matchell did not actually prevent plaintiff from leaving early and while plaintiff contends Ms. Matchell threatened her with discipline, plaintiff herself testified at Page 168:14-14 that she could not remember whether she was disciplined or “may have gotten an occurrence for [leaving early on this occasion].” Moreover, that plaintiff herself may have subjectively interpreted Ms. Matchell’s words as a ‘threat’ does not, without more, demonstrate some adverse employment action which supports a discrimination claim but even if it did, there is no evidence that Ms. Matchell’s question/threat was motivated by plaintiff’s gender or her status as a breastfeeding woman particularly in light of plaintiff’s longstanding attendance issues including before and after the times when plaintiff was breastfeeding and before Ms. Matchell became plaintiff’s supervisor. (See, UMF Nos. 28-30.)
The Court also finds that statement (7) does not tend to show any actionable adverse employment action as there is no evidence that the decisions to move plaintiff’s desk was an adverse employment action which materially affected any rights or privileges of her employment with TPMG and with one exception discussed below, plaintiff has not identified any admissible evidence revealing that these moves were in some manner motivated by plaintiff’s gender or status as a breastfeeding woman, particularly since some of these desk moves occurred when plaintiff was not breastfeeding. Plaintiff’s own subjective belief that these moves were “unjustified” is not competent evidence which creates a triable issue of fact relating to an intent to treat plaintiff differently because of her gender or need to pump breast milk. With respect to the one exception, the evidence shows that Ms. Matchell did once move plaintiff’s desk because other employees had complained about the noise plaintiff’s breast pump made and again, plaintiff’s own subjective belief that these other employees were in reality complaining about TPMG not giving plaintiff a more private area to pump milk remains inadmissible speculation but even if this were true, there is still no evidence this is what the other employees actually communicated to Ms. Matchell. In the end, plaintiff’s employer certainly had the right to move her desk in response to other employees’ complaints even though plaintiff may have preferred to stay.
Statement (8) fails to create a triable issue which mandated denial of summary judgment because Ms. Matchell, as the manager, had the right to assign plaintiff to cover shifts at other Kaiser departments as necessary and as noted above, Ms. Matchell’s declaration establishes that one of plaintiff’s positions was “a floating position that required some travel.” Although plaintiff herself testified she ‘did not remember’ “floating” being a part of her job description, she failed to produce competent, admissible evidence that these temporary assignments by Ms. Matchell were actually motivated in whole or part by plaintiff’s gender, need to pump breast milk or even her requests for accommodation.
With respect to the suggestion that Ms. Matchell discriminated against plaintiff by “allow[ing] a subordinate to improperly charge Plaintiff with tardies [which] prevented her from transferring” (as claimed in response to UMF 29), plaintiff overlooks the fact that defendants’ three objections to the cited paragraphs of her declaration were sustained (see, Obj. Nos. 60-62) and the cited passage from her deposition itself confirms plaintiff ‘did not remember the specifics’ of the warning for coming to work late (Pl. Depo., p.529:18-24), nor does this evidence affirmatively establish that (a) the subordinate was aware Ms. Matchell told plaintiff not to worry about “tardies” when she was caring for her sick grandfather, (b) the subordinate assessed “tardies” against plaintiff because of her gender or need to pump breast milk, or (c) Ms. Matchell was actually aware of the subordinate’s alleged action so no discriminatory intent on the part of Ms. Matchell can reasonably be inferred.
The final element of plaintiff’s argument is that the Court found a triable issue relating to the question of whether plaintiff’s working conditions were so intolerable a reasonable person would have resigned, something which constitutes an adverse employment action that can support her causes of action for gender discrimination and failure to prevent same. Although plaintiff is correct that a “constructive discharge” may constitute an adverse employment action, her constructive discharge cause of action failed for the separate and distinct reasons that plaintiff did not demonstrate (1) the violation of any of the public policies actually alleged in her complaint (i.e., prohibiting discrimination on the basis of gender or the need to pump breast milk) and
(2) her employer was aware of the allegedly intolerable conditions prior to plaintiff’s resignation. Regardless, as shown above, summary adjudication of the causes of action for gender discrimination and failure to prevent same was proper since plaintiff failed to produce competent, admissible evidence that would allow a reasonable fact finder to conclude more likely than not the allegedly intolerable working conditions were substantially motivated by the fact plaintiff was a woman who was breastfeeding and needed to pump breast milk at work.
Harassment, Constructive Discharge and Retaliation. Plaintiff maintains this Court abused its discretion in finding no admissible evidence that Ms. Matchell’s conduct was motivated by plaintiff’s gender, especially in light of appellate precedent discouraging trial courts from summarily adjudicating hostile work environment claims. (Here again plaintiff appears to conflate the distinct legal concepts of harassment and retaliation, the latter of which requires some protected activity to be the motivating factor for an adverse employment action.) Plaintiff insists the following evidence was sufficient to enable a jury to find that Ms. Matchell harassed plaintiff because of her pregnancy and requests for lactation accommodations at work:
(1) When Plaintiff returned from maternity leave, she initially began expressing breast milk at her desk, which was shielded by privacy walls and which was located in a quiet area;
(2) Plaintiff requested a reasonable accommodation to express breast milk during the day;
(3) Ms. Matchell often made unwelcome and offensive comments about plaintiff’s physical appearance including that her tattoos and piercings were “unbecoming for a mother of two,” her makeup and her weight fluctuations before and after giving birth;
(4) Ms. Matchell made numerous remarks about plaintiff’s multiple marriages and personal relationships;
(5) Ms. Matchell on one occasion “criticized” plaintiff for having a second child, not being married and failing to finish school;
(6) Ms. Matchell “constantly” followed plaintiff into the restroom and “hassled” her about what she was doing and warning her not to be on her cell phone;
(7) Ms. Matchell would sometimes interrupt plaintiff while she was in the restroom “to ask non-urgent work-related questions;” and
(8) Ms. Matchell followed plaintiff into the restroom so frequently that “it became a running joke within the department.” (Mot. for New Trial, p.10:15-p.11:13.)
Statements (1) and (2) above do not describe any potentially harassing conduct based on plaintiff’s gender or her need to pump breast milk and thus, require no further discussion here. The conduct described in statement (7) could constitute actionable harassment but there is no evidence showing this conduct was in any way motivated by plaintiff status a breastfeeding woman and in fact, the statement itself indicates Ms. Matchell’s questions were “work-related.” Similarly, the Court finds no admissible evidence which would enable a fact finder to conclude that the conduct described in statements (6) and (8) were in some way motivated by the fact plaintiff was a woman who needed to pump breast milk as alleged in the complaint and the same is true with respect to those comments described in statement (4) relating to “plaintiff’s multiple marriages and personal relationships” and in (5) relating to Ms. Matchell on one occasion ‘criticizing’ plaintiff for having a child without having finished school and without being married especially since defendants’ Objection No. 21 (relating to plaintiff’s declaration claiming these comments by Matchell “were directed at my womanhood”) was sustained. Statement (3) about Ms. Matchell’s comments about plaintiff’s makeup, tattoos and piercings being “unbecoming for a mother of two” as well as her unspecified comments about plaintiff’s weight fluctuations before and after the birth of her son does not save plaintiff’s harassment cause of action since she has failed to identify any admissible evidence tending to show that these comments were motivated by plaintiff’s status as a breastfeeding woman who needed to pump breast milk at work.
Finally, the court acknowledges plaintiff’s citation to legal authorities which indicate that harassment claims are “rarely appropriate for disposition on summary judgment” because even a single incident of harassment could ultimately be found to be sufficiently severe to interfere with an employee’s ability to perform his/her job or to create an objectively hostile or offensive workplace. However, these authorities do not, without more, necessarily require denial of defendants’ motion for summary adjudication of plaintiff’s harassment cause of action in the case at bar. First, the “rule” on which plaintiff relies is a general rule which necessarily has some permissible exceptions, given the number of California appellate decisions which have affirmed and continue to affirm the grant of summary adjudication of employee harassment causes of action on various grounds. Second, the authorities offered by plaintiff seem to indicate that the specific issue which is typically not amenable to resolution on summary adjudication is whether certain harassing conduct was sufficiently “severe or pervasive” to create a hostile work environment but in the present case, the issue being addressed here not whether the above-cited conduct by Ms. Matchell was so “severe or pervasive” but rather whether plaintiff has provided admissible evidence showing that the above-cited conduct by Ms. Matchell was substantially motivated by plaintiff’s status as a breastfeeding woman or her need to pump breast milk at work as specifically alleged in Paragraphs 38 and 39 of the complaint. In short, notwithstanding the general rule that harassment claims are “rarely appropriate” for summary judgment/adjudication and certainly would not control the outcome when a plaintiff fails to establish that the allegedly harassing conduct was in substantial part motivated by some innate characteristic “protected” under the FEHA statutes (e.g., age, gender, race, color, sexual orientation, etc.) or some activity “protected” by the FEHA provisions (e.g., complaining about or “opposing” perceived discrimination, harassment, retaliation, etc. in violation of the FEHA, requesting accommodation, etc.) since California law is clear that offensive conduct not motivated by some “protected” characteristic or activity does not violate the FEHA and is not actionable thereunder. (See, e.g., Mokler v. County of Orange (2007) 157 Cal.App.4th 121.)
Failure to Accommodate and Engage in the Interactive Process. Plaintiff asserts that she is entitled to a new trial on these two causes of action because her filing of an administrative complaint with the DFEH on 1/24/2015 was timely in light of the continuing violation doctrine and defendants’ ongoing harassment of plaintiff right up until she resigned in 2014. The Court disagrees. As explained in the tentative ruling granting summary adjudication of these two causes of action, plaintiff failed to identify in response to defendants’ UMF Nos. 1-4 any admissible evidence demonstrating the existence of a triable issue of material fact relating to the timeliness of her 1/24/2015 DFEH complaint and in fact admitted her need for a lactation accommodation (i.e., a place to pump breast milk) ceased in mid-2013 but she did not file a complaint with the DFEH until well over a year later in January 2015. Had plaintiff wished to invoke the continuing violation doctrine in connection with these two causes of action, she should have in response to these UMF identified specific facts supported by admissible evidence sufficient to enable such a finding.
Defendants’ Failure to Comply with CRC Rule 3.1350(a)(2). Although the Court found that defendants’ separate statement included “several facts which do not meet CRC Rule 3.1350(a)(2)’s definition of ‘material facts’ (i.e., ‘facts that could make a difference in the disposition of the motion’),” the inclusion of such facts was not so problematic that it became impossible for the Court to consider the issues presented for summary adjudication and determine whether plaintiff presented evidence which created a triable issue of fact and thus, this Court acted within its discretion by proceeding to rule on the motion. Plaintiff’s reliance on Reeves v. Safeway Stores Inc. (2004) 121 Cal.App.4th 95 for the proposition it was prejudicial for this Court not to deny the motion based on CRC Rule 3.1350(a)(2) is misplaced, particularly since Reeves itself merely states that “trial courts have the inherent power to strike proposed ‘undisputed facts’ that fail to comply with the statutory requirements and that are formulated so as to impede rather than aid an orderly determination whether the case presents triable material issues of fact” and “If such an order leaves the required separate statement insufficient to support the motion, the court is justified in denying the motion on that basis.” (Reeves, at 106.) In the case at bar, there was no finding that defendants’ inclusion of certain UMF was intended to “impede rather than aid an orderly determination whether the case presents triable material issues of fact” and moreover, the Court did not exercise its power to strike any particular fact, something which obviated the necessity of deciding whether the remaining facts were sufficient to support summary judgment/adjudication. Accordingly, there was no error and no prejudice in the Court’s decision to address the merits of defendants’ motion.
Conclusion
Based on the foregoing, plaintiff’s motion for new trial is denied.
This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)