Case Number: BC502732    Hearing Date: August 11, 2014    Dept: 56

Case Name: McClendon v. Kaiser Permanente, et al.
Case No.: BC502732
Motion: Motion for Summary Judgment/Adjudication

Tentative Ruling: Summary judgment is denied; Summary adjudication granted in part

Plaintiff Kelly McClendon filed this employment action against Defendant Southern California Permanente Medical Group, alleging causes of action for (1) FEHA disability discrimination, harassment, and retaliation; (2) violation of CFRA; (3) wrongful termination; and (4) declaratory relief. Defendant moves for summary judgment or adjudication.

OBJECTIONS
Plaintiff objects to Defendant’s separate statement of material facts. These are improper objections because objections must be directed to evidence. See CRC 3.1354.

Defendant objects to Plaintiff’s declaration. Objection to ¶10 is sustained, and all others are overruled.

MOTIONS
Plaintiff’s complaint has combined separate legal theories or claims for discrimination, harassment, and retaliation in all causes of action (see ¶¶22-25, 34, 37, 48-51, 62 & 67). Defendant’s motion properly addresses each separate claim. See Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854.

Discrimination and Retaliation (Issues 1, 2, 6 & 7) –
Defendant has submitted evidence of Plaintiff’s poor performance on the job: on 4/8/2010 Plaintiff was issued a Level 3 disciplinary action for failing to forward and document mammography films for physician review; on 7/27/2010 Plaintiff was issued a Level 4 disciplinary action for holding back more mammography films; on 1/21/2011 Plaintiff double-exposed mammography films resulting in two patients having to repeat their mammograms; on 3/29/2011 Plaintiff failed to follow patient identification procedures and conducted a mammogram on a patient that did not match the patient information/paperwork; and on 4/11/2011 Plaintiff was terminated for poor performance. Plaintiff has not disputed any of the acts of poor performance cited by Defendant.

Defendant argues that because of Plaintiff’s poor performance, she cannot establish a prima facie case for discrimination and retaliation and there are legitimate, non-discriminatory reasons to justify her termination. See Arteaga v. Brink’s (2008) 163 Cal.App.4th 327, 344; Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487-88. Defendant’s argument about failure to establish the prima facie element of qualification is misplaced. Plaintiff was employed in the same position for more than 10 years and was qualified for her job. Defendant’s evidence of poor performance really goes to the issue of Plaintiff’s ability to establish pretext, because the evidence consists of escalating discipline resulting in Plaintiff’s termination. The issue is whether Defendant’s decision to discharge Plaintiff was motivated by her poor performance or her protected status. See Guz v. Bechtel (2000) 24 Cal.4th 317, 355.

Plaintiff has submitted evidence that her discharge was motivated by her protected status: she suffers from physical disabilities and requested intermittent leave throughout her employment; in 12/2009 Barbara Murphy told Plaintiff that she was missing too much work and that Defendant was looking for reasons to get rid of her; on 3/17/2010 Solorzano asked to replace Plaintiff because her leave accommodations were “unacceptable”; and she was treated differently from other employees, who committed similar violations but were not disciplined. Plaintiff’s evidence is sufficient to raise triable issues of fact as to whether Defendant’s reasons for terminating Plaintiff were pretextual.

Summary adjudication is denied for the discrimination and retaliation claims in all causes of action.

Harassment (Issue 5) –
Defendant argues that Plaintiff cannot establish sufficiently severe or pervasive conduct to support harassment. Whether a working environment is “hostile” can be determined only by looking at all the circumstances. Hope v. CYA (2005) 134 Cal.App.4th 577, 588. “[T]he law does not exhibit ‘zero tolerance’ for offensive words and conduct. Rather, the law requires the plaintiff to meet a threshold standard of severity or pervasiveness.” Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 467. “In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” Hope, supra 134 Cal.App.4th at 588; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.

The evidence does not support harassment by Rebecca Grant, the Administrative Director of Radiology, or Rhonda Rowley, the Assistant Department Administrator. But Plaintiff has presented evidence that her immediate supervisor Barbara Murphy repeatedly made negative comments about Plaintiff’s leaves of absence, belittled her work restrictions, stated that Defendant was looking for reasons to get rid of Plaintiff, and closely followed Plaintiff at the Orchard facility. Defendant has argued that Murphy was Plaintiff’s co-worker rather than a supervisory employee, but there is evidence that Murphy performed supervisory functions by participating in Plaintiff’s performance reviews, and directing her work, breaks and overtime. This is sufficient to raise triable issues on Plaintiff’s harassment claim.

Summary adjudication is denied for the harassment claims in all causes of action.

Failure to Accommodate and Engage in Interactive Process (Issues 3 & 4) –
Defendant argues that Plaintiff cannot establish claims for failure to accommodate or failure to engage in the interactive process. Defendant has submitted evidence that all of Plaintiff’s requests for medical leave were approved, and a light duty assignment was provided when Plaintiff injured her shoulder in 2/2011.

Plaintiff has submitted evidence that when she requested light duty for her injured shoulder, Murphy made a belittling comment that there was no such thing. But Plaintiff does not dispute that she was in fact provided with light duty for her injury. Plaintiff also cites her request for a new desk in 2008, but there is no evidence that her request was clearly made to accommodate a physical disability. Plaintiff fails to raise a triable issue that Defendant failed to engage in the interactive process or provide an accommodation for her disabilities.

Summary adjudication is granted for the failure to accommodate and failure to engage in the interactive process claims in all causes of action.

Declaratory Relief (Issue 10) –
Although designated as a claim for declaratory relief, the 4th COA really seeks an injunction (¶67) and is dependent on Plaintiff’s other claims. See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 241. Because Plaintiff’s discrimination, retaliation and harassment claims survive, summary adjudication is denied for the 4th cause of action.

Punitive Damages (Issue 11) –
Defendant argues that Plaintiff cannot establish entitlement to punitive damages. To do so, Plaintiff must present clear and convincing evidence of oppression, fraud or malice, and that the offending conduct was committed, known, or ratified by a corporate officer, director, or managing agent. See CC §3294 (a) & (b). The requirement of §3294(b) expresses the Legislature’s intent “to limit corporate punitive damage liability to those employees who exercise substantial independent authority and judgment over decisions that ultimately determine corporate policy.” White v. Ultramar (1999) 21 Cal.4th 563, 573. A “managing agent” is an employee who “exercises substantial discretionary authority over decisions that ultimately determinate corporate policy.” White, supra 21 Cal.4th at 573; Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.

Plaintiff has presented no evidence that any of Defendant’s personnel involved in conduct constituting discrimination, retaliation and harassment were officers, directors or managing agents, and Defendant has presented evidence to the contrary. Plaintiff’s operative evidence largely concerns her interactions with Murphy, a lead technician who was barely within the supervisory ranks, and Plaintiff has made no showing that Murphy’s conduct was known or ratified by a managing agent.

Summary adjudication is granted on the claim for punitive damages.

RULING
Summary judgment is denied. Summary adjudication is granted on the claims for failure to accommodate, failure to engage in the interactive process, and punitive damages in all causes of action; and it is otherwise denied.