34-2012-00126573

Kevin Lewis vs. Kaiser Foundation Hospital

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

Filed By: Fortescue, Gregory F.

The motion of Defendants Kaiser Foundation Hospitals (“Kaiser”) and The Permanente
Medical Group, Inc.’s (“TPMG”) (collectively “Defendants”) for summary judgment or, in
the alternative, summary adjudication of issues, is GRANTED in part and DENIED in
part as follows:

This case involves an employment dispute. Plaintiff Anthony Jackson (“Jackson”) has
served as a Kaiser Environmental Services Unit (“EVS”) Aide since 2002. Jackson
(who is African-American) and other plaintiffs have pleaded a variety of statutory FEHA
and common law causes of action against Defendants. Defendants move for
summary adjudication of all five of Jackson’s causes of action and, as a result, for
summary judgment.
Jackson’s Allegations in the FAC

Jackson, who alleges that he was initially hired on an on-call basis, alleges that his
Caucasian co-workers received more hours, set schedules and full-time employment
before he did. (FAC, ¶¶ 76-79.) He further alleges that several EVS employees were
terminated for time-card fraud, that most of those terminated were African American,
and that one of the terminated employees was his uncle. (Id., ¶ 80.)

Next, Jackson alleges that he was frightened and upset when he learned that a noose
was displayed in the workplace in 2009. (FAC, ¶ 81.) He further alleges that in 2010
and before, he witnessed racial graffiti in the men’s room, including the word
“nigger.” (Id., ¶ 83.)

Jackson alleges that, when he was eating a banana one day, one of his co-workers,
Russell Grieco (“Grieco”) told him that he was eating the banana wrong and
demonstrated the way in which chimpanzees should eat bananas. (FAC, ¶ 84.) He
also alleges that he was offended when he overheard Caucasian co-workers ridiculing
other co-workers of Middle Eastern and Indian original/ancestry. (Id., ¶ 85.)

Next, Jackson alleges that, although his job requires him to lift heavy objects, which in
turn requires assistance from other EVS aides, EVS management repeatedly ordered
him in 2012 not to seek such assistance form African-American co-workers. (FAC, ¶
86.)

Jackson alleges that a non-African American supervisor “represented” that he was
entitled to leave work early. (FAC, ¶ 87.) Jackson further alleges that management
subsequently determined that Jackson should not have left early and disciplined him. (
Id.) According to Jackson, management did not discipline the non-African American
supervisor. (Id.)

Finally, Jackson alleges that he was suspended without pay twice in 2011 and 2012
for attendance infractions. (FAC, ¶ 88.) Jackson further alleges that his managers
knew and admitted knowing that there was no justification for such discipline. (Id.)

Discussion

TPMG’S Motion

Jackson’s FEHA Causes of Action Against TPMG

Summary adjudication is GRANTED.

First, Defendants argue that TPMG is entitled to summary adjudication of the first,
fourth, eighth and tenth causes of action because Jackson did not exhaust
administrative remedies prior to filing suit. (See Moving Memo. at 6, fn. 5.) To support
this argument, Defendants note that Jackson’s DFEH complaint only identifies “Kaiser
Permanente Hospital” as the employer and only identifies two Kaiser employees as
individual wrongdoers. (See Freeman Decl., Exh. B, Bates No. MLG-KAISER-
Jackson001416.) Further, the only complained-of conduct in the DFEH complaint is
Grieco’s, viz., when Grieco allegedly implied that Jackson was a chimpanzee eating a
banana. (Id.) Jackson counters that Kaiser does not have the word “Permanente” in its name and,
therefore, that his designation of “Kaiser Permanent Hospital” as his employer is a
reference to both Kaiser and TPMG. Jackson also argues that the employer address
set forth in the DFEH complaint is a TPMG address. Thus, he argues that his DFEH
complaint sufficed to place TPMG on notice of his claims and thus to exhaust pre-
litigation administrative remedies as to TPMG.

Preliminarily, the court notes that any failure to exhaust administrative remedies does
not entitle to TPMG to summary judgment because Jackson was not required to
exhaust such remedies prior to filing suit on his common law cause of action for IIED.
(Rojo v. Kliger (1990) 52 Cal.3d 65, 88.) The filing of an administrative DFEH
complaint is only a prerequisite to bringing FEHA causes of action into court. (Okoli v.
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Lockheed Technical Operations Co. (1995) 36 Cal.App.4 1607, 1613.)

Because the court agrees with Defendants that Jackson’s DFEH complaint does not
identify TPMG, it concludes that Jackson did not exhaust his administrative remedies
as to TPMG and that TPMG is entitled to summary adjudication of the first, fourth,
eighth and tenth causes of action under FEHA.

“By requiring that a DFEH charge include the names and addresses of
persons who allegedly discriminated against the complainant, the
Legislature insured that the administrative investigation, conciliation
attempts, and evidentiary proceedings would encompass the entire
sphere of the alleged discrimination. To allow a complainant to sue
individuals in a state court action on a FEHA cause of action without
having brought them within the scope of the comprehensive
administrative process by naming them as perpetrators of discrimination
at the outset would undermine the purposes of the fair employment
statute. The Legislature certainly did not intend that the administrative
process should be circumvented by allowing a civil lawsuit under the
FEHA against individuals who allegedly discriminated but who were not
mentioned in the administrative charge.”

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(Cole v. Antelope Valley Union High Sch. Dist. (1996) 47 Cal.App.4 1505, 1514
[citations omitted.)

“We conclude section 12960 clearly mandates that aggrieved persons
set forth in their DFEH complaint the names of persons alleged to have
committed the unlawful discrimination. In order to bring a civil lawsuit
under the FEHA, the defendants must have been named in the caption
or body of the DFEH charge. We agree with our colleagues in Division
Seven of this court that this rule ‘will lead to more speedy resolution of
disputes at the administrative level and is in keeping with the requirement
of exhaustion of administrative remedies.’”

(Id. at 1515 [italics in original].) Although Cole involved the failure to name individual
defendants in a DFEH complaint, the court discerns no distinguishing reason to allow a
FEHA action to proceed against an entity-employer which, like the individuals in Cole,
has not been named in either the caption or body of the antecedent DFEH charge.
(See Cal. Gov’t Code § 12960(b) [“Any person claiming to be aggrieved by an alleged
unlawful practice may file with the department a verified complaint, in writing, that shall
state the name and address of the person , employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of”]
[emphasis added].) Here, Jackson did not identify TPMG in either the caption or body
of his DFEH complaint. His use of the word “Permanente” in the caption identifying
“Kaiser Permanent Hospital” as the employer could not reasonably have directed an
investigation into any conduct by TPMG or its employees. On the contrary, the only
employees named in the body of the complaint are Kaiser employees, and the only
conduct complained of was that attributed to Grieco, a Kaiser employee. (UMF 2.)
Notably, there is no mention of the noose incident that Jackson currently attributes to
TPMG employee. (See Opp. Sep. Stmt, UMF 3-4.) Moreover, the address for the
employer listed in the DFEH complaint is for premises that Kaiser owns and operates.
(UMF 11.) Even if, as Jackson asserts, TPMG employees also work at the location,
the address is consistent with a charge directed solely at Kaiser due to its employees’
conduct.

The court concludes that the exhaustion of administrative remedies does not present a
triable issue of material fact. Therefore, TPMG is therefore summary adjudication of
all Jackson’s FEHA causes of action.

Because the court grants TPMG summary adjudication based on Jackson’s failure to
exhaust administrative remedies, it does not address TPMG’s further argument that it
is entitled to summary adjudication of the FEHA causes of action because it was not
Jackson’s employer.

Jackson’s IIED Cause of Action Against TPMG

Summary adjudication is DENIED.

TPMG moves for summary adjudication of Jackson’s IIED cause of action based upon
three grounds. First, TPMG argues that the workers’ compensation exclusivity bars
the IIED cause of action. (See Moving Memo. at 19:18-20:5.) That bar, however, only
applies to claims against the employer. (See Cal. Labor Code § 3600(a).) TPMG has
argued elsewhere that it has never been Jackson’s employer. (See Moving Memo.,
Part III-A.) At a minimum, TPMG’s evidence demonstrates that the question whether it
is or was Jackson’s employer presents a triable issue. Accordingly, TPMG has not
demonstrated that the workers’ compensation exclusivity entitles it to adjudication as a
matter of law.

Next, TPMG argues that it is entitled to summary adjudication because there is no
triable issue whether any of its managers engaged in extreme or outrageous conduct.
(See Mov. Sep. Stmt. at 69:3-5 [Issue No. 18].) TPMG, however, has not cited any
authority for the proposition that extreme and outrageous conduct on the part of a
corporate manager is the only valid basis upon which to advance an IIED cause of
action against the corporation. (See Delfino v. Agilent Technologies, Inc. (145
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Cal.App.4 790, 809-810 [employer may be liable for an employee’s willful and
malicious conduct under a theory of ratification].) Accordingly, TPMG has failed to
persuade the court.

Finally, TPMG argues that there is no triable issue whether Jackson suffered
emotional distress sufficiently severe to support an IIED cause of action. (See Moving
Memo. at 20:9-10.) TPMG predicates this argument on the facts that (1) Jackson
suffered headaches, lack of sleep, migraines, lack of energy and stress as a result of
the alleged harassment and discrimination, (2) his condition improved after his doctor
told him to exercise more, and (3) staying active has improved Jackson’s insomnia.
(See Mov. Sep. Stmt., UMF 104-106.) Again, TPMG does not cite any authority for the
proposition that these facts preclude a reasonable inference that Jackson suffered
severe emotional distress. Nor does the evidence preclude an inference that Jackson
suffered from the symptoms in question for several months. (See CACI Instr. No.
1604 [Severe emotional distress “must be so substantial or long lasting that no
reasonable person in a civilized society should be expected to bear it”].)

Because the court rejects each of TPMG’s arguments, it denies summary adjudication
of the IIED cause of action.

The Claim for Punitive Damages

Summary adjudication is GRANTED.

TPMG has produced evidence that no malicious, oppressive or fraudulent conduct can
be attributed to its officers, directors or managing agents. (See CC § 3294(b).)
Jackson has not produced any evidence in response. Accordingly, TPMG is entitled to
adjudication of the punitive damages claim as a matter of law.

Kaiser’s Motion

The discussion below roughly tracks the order of issues analyzed in the Moving
Memorandum of Points and Authorities.

The Fourth Cause of Action for Racial Discrimination-FEHA

Summary adjudication is GRANTED.

Kaiser raises several arguments to support its position that it is entitled to summary
adjudication. First, it argues that, to the extent the fourth cause of action is based on a
failure-to-promote claim, the cause of action fails because it is time-barred. Kaiser
further argues that Jackson failed to exhaust his administrative remedies. Kaiser also
argues that Jackson cannot establish a prima facie case of discrimination. And, finally,
Kaiser argues that, assuming Jackson can establish a prima facie case, there is no
triable issue whether Kaiser had a legitimate, non-discriminatory reason for its actions,
and Jackson cannot establish pretext.

Jackson has not addressed any of Kaiser’s arguments. Nor has he disputed the facts
submitted to support the arguments.

The court concludes that Kaiser has met its initial burden of demonstrating the
nonexistence of any triable issue of material fact, whereas Jackson has not met his
responsive burden of demonstrating the existence of a triable issue. Accordingly,
Kaiser is entitled to adjudication of the fourth cause of action as a matter of law.

The First Cause of Action for Race-Based Harassment-FEHA

Summary adjudication is DENIED.

“The law prohibiting harassment is violated ‘[w]hen the workplace is
permeated with discriminatory intimidation, ridicule and insult that is
sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’ [Citations].
This must be assessed from the ‘perspective of a reasonable person
belonging to the racial or ethnic group of the plaintiff.’ [Citation.] And the
issue of whether an employee was subjected to a hostile environment is
ordinarily one of fact. [Citation.]

(Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263-264 [citations and
internal quotation marks omitted].)

First, Kaiser argues that, to the extent the first cause of action is based on Grieco’s
conduct, the first cause of action states only inactionable conduct because Kaiser took
“prompt, reasonable and efficacious remedial action.” (See Moving Memo. at 13:9-11
[citation omitted]; see also Mov. Sep. Stmt., UMF 15-27.) Kaiser’s argument turns on
the question whether, after a Caucasian employee assertedly implies that an African-
American co-worker is like a chimpanzee eating a banana, an employer takes
sufficient remedial action by conducting an investigation and counseling the Caucasian
employee to remain professional at work and not to make racially inappropriate
comments. (See UMF 16-24.) Applying that question to the facts in the instant case,
Kaiser argues that the answer must be “yes” because its investigator concluded that
Grieco did not intend his comments to be racially offensive. (UMF 23.) Kaiser’s
evidence, however, does not persuade the court that there is no triable issue whether
the investigator’s conclusion was correct and, therefore, whether the counseling alone
was appropriate remedial action. The court thus rejects Kaiser’s argument.

Again focusing on Grieco’s conduct only, Kaiser argues next that such conduct is
inactionable because it was not severe or pervasive. Although potentially egregious,
the chimpanzee/banana incident is not severe enough in itself to establish a racially
hostile work environment because it was not accompanied by a threat of physical
violence. (See Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142,
151 [citations omitted].) The court nonetheless denies summary adjudication because
there is evidence of other potentially race-based incidents and, therefore, evidence
sufficient to allow the issue to go to a jury.

First, Jackson predicates his harassment cause of action in part on Kaiser’s prohibition
against Jackson assisting his African-American co-worker, Plaintiff Kevin Lewis
(“Lewis”), at such tasks as moving heavy objects. Kaiser does not argue that such a
prohibition cannot be construed as evidence of race-based harassment. Rather,
Kaiser argues that that Jackson has effectively admitted that the prohibition was not
race-based in the instant case because Jackson was also instructed not to assist a
Caucasian employee. (See Moving Memo. at 16:5-11.) Although evidence that
Jackson was instructed not to assist a Caucasian employee tends to undermine the
contention that the prohibition against assisting Lewis was race-based, it does not
preclude a contrary inference. For example, Kaiser has not negated an inference that,
whereas Kaiser instructed Jackson not to assist Lewis for racial reasons, it instructed
him not to assist the Caucasian co-worker for reason unrelated to race. Hence, the
court cannot disregard the evidence of the prohibition against assisting Lewis as
support or Jackson’s first cause of action.

Secondly, there is evidence that Jackson heard EVS Assistant Manager Geffrey
Triano say, in reference to an African-American Kaiser manager, “I don’t know what
her problem is.[..o]ne of them is in the White House now.” (See UMF 87.) Triano is the manager who investigated the chimpanzee/banana incident and concluded that
Grieco did not intend his comments to be racially offensive.

Even if there is some question whether the conduct supporting Jackson’s harassment
cause of action is sufficiently severe or pervasive to state race-based harassment
under FEHA, all doubts must be resolved in Jackson’s favor at this juncture. (See,
e.g., Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 186.) Accordingly, the court
denies summary adjudication.

The Eighth Cause of Action for Retaliation-FEHA

Summary adjudication is GRANTED.

Kaiser argues that the only arguable adverse employment actions discernable in
Jackson’s complaint are his suspensions for poor attendance. (See Moving Memo. at
18:11-16.) Kaiser argues that the first suspension is inactionable because it was
reversed. It further argues that both suspensions are inactionable because they are
supported by legitimate, non-discriminatory reasons, and Jackson cannot produce
evidence establishing pretext.

Jackson has not addressed Kaiser’s arguments. Nor has he disputed the facts
submitted to support the arguments.

The court concludes that Kaiser has met its initial burden of demonstrating the
nonexistence of any triable issue of material fact, whereas Jackson has not met his
responsive burden of demonstrating the existence of a triable issue. Accordingly,
Kaiser is entitled to adjudication of the eighth cause of action as a matter of law.

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

Summary adjudication is DENIED.

Kaiser argues in a footnote that, because it is entitled to summary adjudication of the
underlying causes of action based on discrimination, harassment and retaliation, it
necessarily is entitled to summary adjudication of the derivative failure-to-prevent
cause of action. (See Moving Memo. at 19, fn. 15.) The court rejects this argument
because it has denied summary adjudication of the harassment cause of action.
Accordingly, it likewise denies summary adjudication of the derivative failure-to-prevent
cause of action.

The Fourteenth Cause of Action for IIED

Summary adjudication is DENIED.

Kaiser moves for summary adjudication of Jackson’s IIED cause of action for the same
reasons that TPMG offered. (See above.) For reasons previously stated, the court
rejects these three reasons and therefore denies summary adjudication.

The Claim for Punitive Damages

Summary adjudication is GRANTED. Kaiser argues that Jackson cannot produce evidence that any Kaiser officer, director
or managing agent engaged in conduct amounting to malice, oppression or fraud
within the meaning of CC § 3294(b). It thus argues that, because it is a corporate
defendant, Jackson’s claim for punitive damages should be summarily adjudicated.

Jackson counters that the evidence presents a triable issue whether Kaiser’s EVS
Manager Doran Reynolds is a managing agent within the purview of CC § 3294(b).
Jackson points to the following evidence, drawn from Reynolds’ deposition testimony,
to argue that there is a triable issue precluding summary adjudication of the punitive
damages claim: (1) as many as six supervisory employees report directly to Reynolds,
and 171 employees are within Reynolds’ chain of command; (2) Reynolds has hiring
authority, (3) Reynolds can recommend termination, but can be and has been
overruled in the recommendations; (4) Reynolds can impose discipline, including
suspensions, but she cannot demote; (5) she meets with unionized employees with
grievances; (6) she creates and approves agendas for EVS employee meetings; (7)
she sometimes presides at EVS employee meetings; (8) she has “input” into the EVS
budget, although the budget is actually set by regional corporate offices; (9) Reynolds
interacts with and can recommend, but does not contract with, outside vendors; and
(10) Reynolds can approve or reject certain overtime. (See Opp. Sep. Stmt., UMF
107.)

A managing agent is one who exercises substantial discretionary authority of
significant aspects of a corporation’s business. (See White v. UltraMar (1999) 21
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Cal.4 563, 577; see id. at 576-577 [“[P]rincipal liability for punitive damages [does] not
depend on employees’ managerial level, but on the extent to which they exercise
substantial discretionary authority over decisions that ultimately determine corporate
policy”] [brackets added].) The authority must influence formal corporate policies
affecting a substantial portion of the business, and thus must be broad enough to
support punishing the corporation itself. (See Roby v. McKesson Corp. (2009) 47
Cal.4th 686, 714-715.)

Bearing the applicable legal standards in mind, the court concludes that the evidence
does not present a triable issue. Despite her authority over EVS operations at the
Kaiser location where Jackson is employed, she only has authority over a single facet
(housekeeping) of Kaiser’s operations at a single site. The Court of Appeal in Cruz v.
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Homebase (2000) 83 Cal.App.4 160, 168, held that such circumstances did not
establish managing agency for purposes of assessing punitive damages. That
Reynolds directly or indirectly supervises many more employees than the supervisor in
Cruz does not alter the court’s conclusion. At bottom, there is insufficient evidence to
support a reasonable inference that Reynolds has substantial discretionary authority
over the general principles guiding Kaiser’s operations. (See Cruz at 167.)
Consequently, summary adjudication is granted.

Judicial Notice

Defendants’ request for judicial notice of an email from the Appraisal Support Section
of the County of Sacramento’s Assessor’s Office is DENIED.

Objections to Evidence

Defendants’ objections are OVERRULED.
Conclusion

Defendants’ motions for summary judgment are DENIED.

TPMG’s alternative motion for summary adjudication is GRANTED as to Jackson’s
first, fourth, eighth and tenth causes of action, as well as Jackson’s claim for punitive
damages. Summary adjudication is otherwise DENIED.

Kaiser’s alternative motion for summary adjudication is GRANTED as to Jackson’s
fourth, eighth and tenth causes of action, as well as Jackson’s claim for punitive
damages. Summary adjudication is otherwise DENIED.

Pursuant to CRC 3.1312, Defendants are directed to lodge separate formal orders for
the court’s signature.