2011-00095062-CU-WT

John Jerome vs. Catholic Healthcare West

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

Filed By:   Burkett, David P.E.

Defendant Catholic Healthcare West’s (“CHW”) motion for summary judgment, or in  the alternative, summary adjudication is granted.

Plaintiff John Jerome alleges a cause of action for wrongful termination in violation of
Health & Safety Code § 1278.5 (the other causes of action have been dismissed)
based on allegations that in retaliation for engaging in protected whistle blowing
activity, he was suspended for a day, terminated and not re-hired.

CHW’s separate statement contains the following.  Plaintiff was terminated effective
December 4, 2008.  The complaint was filed on January 13, 2011.  Plaintiff alleges that
he engaged in protected activity when he complained about patient care and
conditions, sexually harassing conduct, and other things, until the time he left his
position in Cardiac Surgery on October 5, 2007.

Plaintiff was suspended for a day on September 21, 2007 based on a September 14
incident.  Plaintiff claimed that he learned a patient in the Caridac Catheterization
Laboratory (Cath Lab) needed to be moved quickly so he brought an OR surgical table
to the Cath Lab.  The OR was not ready when Plaintiff arrived with the patient and the
patient was left in the hallway for over 20 minutes.  Plaintiff maintains that he was
trying to take initiative in response to a poor performance review in August 2007 which
indicated he was not proactive in moving equipment and beds to needed areas.

Jean Scrafton, Plaintiff’s supervisor at the time, investigated the incident and
interviewed Plaintiff and a number of others.  Plaintiff told her that he was instructed to
take the actions that were being investigated.  Others who were interviewed denied
that Plaintiff was instructed to take the patient to the Cath Lab and instead that Plaintiff
told Cath Lab staff that “Frank” wanted the patient moved quickly.  Scrafton concluded
that no one told Plaintiff to move the patient and that he acted outside his job duties
potentially endangering a patient and that his interview responses were less than
forthright.  On September 20, Scafton issued Plaintiff a one day suspension without
pay based on a violation of CHW’s “Rules of Conduct” Personnel Policy No. 268 which
requires employees to act in a manner that does not interfere with a safe environment
and states that unacceptable employee behavior includes improper patient care.
Scrafton did not suspend Plaintiff based on complaints he made about unsafe patient
care conditions.

Plaintiff saw his doctor on October 4, and he was placed on medical leave starting
October 5 for job stress and was taken off work until October 18, 2007.  The collective
bargaining agreement provides that medical leave “shall not exceed one (1) year,
unless extended by mutual agreement between the employee and the Employer.”  On
October 18, 2007, Plaintiff’s doctor extended the leave to November 1, 2007.  On
November 1, the leave was extended to November 9 when he was approved to return
on modified duty unless such duty was not available.  Plaintiff worked modified duty on
November 26, 27, and December 3, and 4, 2007.  On December 6, 2007, his doctor
approved Plaintiff to work two days a week at the Mercy Learning Center until
February 27, 2008, when he would be re-evaluated.  On December 14, 2007, Plaintiff
met with his department manager, the employee health nurse and the human
resources manager regarding the modified work accommodation.  They concluded that
the accommodation would be an undue burden because it would require additional
staff to be hired to cover Plaintiff’s work.  On December 17, 2007, Plaintiff’s medical
leave was approved for the time period between October 5, 2007, and December 28,
2007.   On February 21, 2008, Plaintiff’s doctor certified that he could not work until May 21,
2008 and Plaintiff’s medical leave was approved for extension until the time “at the
sole discretion of [CHW] in accordance with [its] policies and collective bargaining
agreements” given he was no longer eligible for FMLA.  On May 19, 2008, Plaintiff’s
doctor certified that Plaintiff could not work until October 1, 2008 at which time he
could return to full duty and his leave was again approved.  On October 1, 2008,
Plaintiff’s doctor certified that Plaintiff could not work until February 1, 2009, and
Plaintiff’s leave was extended until one year from his last day worked.  Once Plaintiff
used his one year limit for medical leave, Jim Andersen, CHW’s HR manager,
approved termination of Plaintiff’s employment in accordance with the terms of the
collective bargaining agreement.  Plaintiff never submitted a request to exceed the one
year leave limit.  Andersen did not approve the termination to retaliate against Plaintiff
for making complaints about patient care, rather he did do as a result of CHW’s
medical leave policy.  Plaintiff was terminated effective December 4, 2008.  Plaintiff
was notified of his termination on December 18, 2008 and was invited to reapply after
his termination and was sent a copy of CHW’s “Reemployment” policy.  Plaintiff did not
reapply.

Neither Scrafton, nor Andersen were officers, directors or managing agents of CHW
with discretionary authority over decisions determining corporate policy and they had
no corporate level responsibilities.  No managerial-level corporate employees were
involved in the decision to suspend, terminate or rehire Plaintiff.

CHW first moves for summary judgment/adjudication on the basis that the first cause
of action is time barred to the extent it is for wrongful termination in violation of public
policy given the statute of limitations for such claim is two years and he was terminated
in December 2008 and the complaint was not filed until 2011.  The Court need not
address this argument as the first cause of action is for wrongful termination in
violation of Health & Safety Code § 1278.5, not a common law wrongful termination
claim (e.g. a Tameny claim).

CHW next argues that it is entitled to judgment on the first cause of action on the basis
that Plaintiff cannot establish a prima facie case for retaliation under Health & Safety
Code § 1278.5 because the statute of limitations bars his claim to the extent it is based
upon his one-day suspension, there was no causal connection between his complaints
and his termination and failure to rehire, and in any event CHW had legitimate, non-
retaliatory reasons to suspend, terminate and not re-hire Plaintiff.

Statute of Limitations Regarding the One Day Suspension

The motion on the basis that the first cause of action is barred to the extent it is based
on Plaintiff’s one day suspension because the three year statute of limitations in Health
& Safety Code § 1278.5 ran is denied.  Indeed, even if CHW is correct, this portion of
the motion would not completely “dispose[ ] of a cause of action, an affirmative
defense, a claim for damages, or an issue of duty” as required by CCP § 437c(f)(1).
The first cause of action is based not only upon allegations that CHW retaliated
against Plaintiff by suspending him, but also upon allegations that it retaliated by
terminating him and not rehiring him.  Notably, CHW did not request summary
adjudication of this separate act based on Lilienthal & Fowler v. Superior Court (1993)
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12 Cal.App.4   1848.  On this basis alone, the motion on this ground is denied.

The Court reaches the above conclusion even though it was not raised by Plaintiff in
opposition.  Further, given the above, the Court need not and does not reach Plaintiff’s
argument that equitable tolling prevents the statute of limitations from running on the
one day suspension issue as the burden never shifted to Plaintiff to demonstrate the
existence of a triable issue of material fact.

Causal Connection

CHW also moves for summary judgment/adjudication on the basis that there was no
causal connection between Plaintiff’s termination or the alleged failure to rehire Plaintiff
and any protected activity.  Again, however, even if CHW is correct on these points, it
fails to address whether there was a causal connection between any protected activity
and Plaintiff’s one day suspension.  Thus, like the above issue, this portion of the
motion would not completely “dispose[ ] of a cause of action, an affirmative defense, a
claim for damages, or an issue of duty” as required by CCP § 437c(f)(1).  Again, CHW
did not request summary adjudication of this separate act based on Lilienthal, supra,
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12 Cal.App.4   1848.  Rather as seen from the notice, it specifically sought summary
adjudication of the first cause of action on the basis that “there was no causal
connection between his complaints, on the one hand, and his termination or the
alleged failure to rehire, on the other.”  (Notice 2:2-4.)  On this basis alone, the motion
is denied.

Legitimate, Non-Retaliatory Reasons

Finally, CHW moves for summary judgment/adjudication on the basis that legitimate,
non-retaliatory reasons existed for Plaintiff’s suspension, termination and failure to
rehire.  CHW’s evidence shows that Plaintiff was given the one-day suspension after
his supervisor Scrafton conducted an investigation regarding an incident in which it
was determined that he violated CHW’s “Rules of Conduct” when he moved a patient
without approval or instruction.  (UMF 15-19)  In this regard, CHW was only required to
have a good faith belief that Plaintiff violated the “Rules of Conduct.”  (Wills v. Superior
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Court (2011) 194 Cal.App.4   312, 340 [“the question is not whether [the employee’s]
comments and conduct could be construed as threatening.  Rather, the question is
whether [her employer] honestly believed [the employee] violated [the employer’s]
written policy…”].)  Here, based on her investigation, CHW’s evidence shows that
Scrafton had a good faith belief that Plaintiff violated the “Rules of Conduct.”

With respect to the termination, CHW’s evidence shows that Plaintiff was terminated
because he exceeded the maximum time allowed for medical leave under the
applicable collective bargaining agreement and no extension of the one year limit was
provided.  (UMF 40-42).  Relevant authority has found that termination after an
employee has exceeded the medical leave limits in a collective bargaining agreement
is not unreasonable.  (Jordan v. Workers’ Comp. Appeals Bd. (1985) 175 Cal.App.3d
162, 166.)

As it relates to the failure to rehire, CHW’s evidence shows that Plaintiff never
reapplied for any positions.  There can be no claim based upon a failure to rehire when
Plaintiff never reapplied.  (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792,
802 [plaintiff must show “that he applied and was qualified for a job which the employer
was seeking applicants”].)

The above is sufficient to demonstrate that CHW had legitimate, non-retaliatory
reasons for the alleged adverse actions in this lawsuit: the one-day suspension, the
termination and the failure to rehire and is sufficient to shift to Plaintiff the burden of
demonstrating the existence of a triable issue of material fact.  As discussed below,
Plaintiff has failed to meet his burden.

Given CHW met its burden to show it had legitimate, non-retaliatory reasons for the
alleged adverse actions, the burden shifted to Plaintiff show pretext “either directly by
persuading the court that a discriminatory reason more likely motivated the employer
or indirectly by showing that the employer’s proffered explanation is unworthy of
credence.  [citations omitted].”  (Mokler v. County of Orange (2007) 157 Cal.App.4th
121, 140.)  In this regard, Plaintiff was required to produce “substantial responsive
evidence that the employer’s showing was untrue or pretextual” thereby raising at least
an inference of discrimination.”  (Hersant v. California Dept. of Social Services (1997)
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57 Cal.App.4   997, 1004-1005.)  “The 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.”  (Id. at 1002.)  Plaintiff was required to “set forth
specific facts demonstrating such weaknesses, implausibilities, incoherencies, or
contradictions in the employer’s proffered legitimate reasons…that a reasonable fact-
finder could rationally find them unworthy of credence.”  ( Cucuzza v. City of Santa
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Clara (2002) 104 Cal.App.4   1031, 1038.)  Plaintiff failed to make such a showing.

At the outset, Plaintiff argues that pretext exists because it was CHW’s failure to
accommodate his disability, for which it provided contradictory reasons that ultimately
led to his suspension, termination, and failure to be re-hired.  (Oppo. pp. 16:8-17:25.)
However, Plaintiff did not allege that CHW failed to accommodate him in retaliation for
engaging in protected activity.  Rather, he alleged he was suspended, terminated and
not re-hired in retaliation for complaining about patient care and safety.  (FAC ¶¶ 25-
27.)  Indeed, Plaintiff concedes that “disability discrimination and failure to
accommodate are not operative claims in this action” despite trying to argue that they
can support his retaliation claim.  (Oppo. 16:8-9.)  The pleadings determine the scope
of the issues that are to be addressed on a motion for summary judgment.  (Nieto v.
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Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4   60, 72-73.)
“Conversely, summary judgment cannot be denied on a ground not raised by the
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pleadings.”  (Bostrom v. San Bernardino (1995) 35 Cal.App.4   1654, 1663 [court’s
emphasis].)  Plaintiff, therefore cannot rely upon any contention that CHW retaliated
against him by failing to accommodate him.

In any event, even if the Court considered the failure to accommodate theory, it would
not satisfy his burden to show pretext.  Indeed, Plaintiff argues that CHW failed to
accommodate his disability (e.g., to be free from stress) by allowing him to work in the
Learning Center.  Yet, as seen from CHW’s reply, CHW has a legitimate,
nondiscriminatory reason for not allowing him to work in the Learning Center.
Specifically, CHW found it would be an undue hardship to require Plaintiff’s normal
department to pay him to work in the Learning Center while at the same time having to
hire additional staff to cover his position.  (UMF 33)  Plaintiff argues that Anderson
(Head of HR) and Frazier (VP of Cardiovascular Services) provided shifting
explanations for not allowing him to work in the Learning Center.  However, an
examination of the cited testimony fails to reveal such contradictions.  Indeed,
Anderson declared that it would have been a hardship to allow Plaintiff to work in the
Learning Center while at the same time compensating an employee for performing
Plaintiff’s home department position.  (UMF 33.)  Plaintiff argues that Frazier
contradicted Anderson by testifying that the decision not to allow Plaintiff to work in the              Learning Center was not “about the dollars and cents” but was dictated by CHW’s
accounting policies which prohibited an employee from working in one department
while being paid from another department’s budget.  But the full scope of Frazier’s
testimony described CHW’s financial rules and concerns of paying an employee to
work in one department while another is hired to cover that employee in the home
department.  (Frazier Depo. 31:3-23.)  This is consistent with Anderson’s testimony
and the fact that Frazier also testified that the matter was not simply about “dollars and
cents” does not contradict Anderson’s testimony such that a “reasonable fact-finder
could rationally find [the reason for the decision not to allow Plaintiff to work in the
Learning Center] unworthy of credence” for purposes of finding pretext.  (Cucuzza,
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supra, 104 Cal.App.4   at 1038.)  The Court need not address any other arguments by
CHW regarding the reasons why the failure to accommodate theory fails.  In any
event, this exercise is academic at best because the claimed failure to accommodate
was not alleged in the complaint and cannot support a basis for denying the instant
motion.

With respect to the issues actually pled, specifically, the one day suspension, the
termination and failure to rehire, Plaintiff failed to satisfy his burden to produce
“substantial responsive evidence that the employer’s showing was untrue or
pretextual” thereby raising at least an inference of discrimination” as to any of these
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alleged adverse actions.  (Hersant, supra, 57 Cal.App.4   at 1004-1005.)  At most, he
only addressed the termination and simply argued in his opposition brief that Anderson
failed to extend his medical leave after the one year period allowed in the collective
bargaining agreement expired.  He argues that Anderson agreed that the collective
bargaining agreement provided for an extension beyond such time if mutually agreed
upon and that Anderson did nothing to extend that time.  (Oppo. 16:4-7.) The mere
failure of Anderson to extend a time period which had expired falls well short of the
evidence required to meet Plaintiff’s burden of producing substantial responsive
evidence of pretext.  Indeed, CHW had no obligation to extend the leave beyond the
one year period and in any event, Plaintiff submits no evidence that he even requested
for such an extension.  In sum, there is simply no evidence much less “substantial
responsive evidence” that CHW’s stated reasons for taking any of the adverse actions
alleged in the complaint were “untrue or pretexual.”

Given CHW’s showing that it had legitimate, non-retaliatory reasons for the adverse
actions at issue in this matter, and Plaintiff’s failure to meet his burden to produce any
evidence which would lead a rational fact-finder to properly draw any inference of
pretext, the motion for summary judgment is granted.

Punitive Damages

As a result of the above, the Court need not address CHW’s motion for summary
adjudication as to Plaintiff’s claim for punitive damages.

Plaintiff’s evidentiary objections are overruled.  CHW’s evidentiary objections 3-10 are
sustained and the remainder are overruled.

CHW’s counsel shall prepare for this Court’s signature and a judgment of dismissal