2012-00127599-CU-WT

Laura Johnson vs. Sutter Health

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

Filed By: Tsai, Gilbert J.
Filed By: Tsai, Gilbert J.

***If oral argument is requested, then at the time the request is made the
requesting party must inform the court and opposing counsel of the specific
issue(s) on which oral argument is sought.***

The motion of Defendants Sutter Health Sacramento Sierra Region (“Sutter”) and
Rosemary Jones (“Jones”) (collectively “Defendants”) for summary judgment or, in the
alternative, summary adjudication of issues is DENIED.

This case presents an employment dispute. Sutter employed Plaintiff Laura Johnson
(“Johnson”), and Jones was Johnson’s supervisor. Johnson alleges that she was
mistreated due to her age and a stress-related disability.

The First Cause of Action for Discrimination Based on Age [FEHA]

Summary adjudication is DENIED.

Sutter argues that it is entitled to summary adjudication of the first cause of action
because (1) Johnson did not suffer any adverse employment action and, (2) even if
there had been an adverse employment action, Johnson cannot establish that it was
based on her age. (See Hersant v. Department of Social Svcs. (1997) 57 Cal.App.4th
997, 1003; Ewing v. Gill Industries, Inc. (1992) 3 Cal.App.4th 601, 610.) To support its
argument, Sutter has produced evidence that Johnson admitted the only adverse
effect on her employment due to Jones’ treatment of her was increased stress. (See
Undisputed Material Fact (“UMF”) 22.) Johnson does not argue that increased stress
is an adverse employment action under the FEHA, and the court’s own research does
not disclose any case identifying stress as an adverse employment action. Thus,
Sutter’s evidence shifts the burden of production to Johnson.

With her Opposition, Johnson has produced evidence that Sutter withheld her final
paycheck. The employee who decided to withhold the paycheck was not Jones. (See
Johnson’s Additional Material Fact 59.) Sutter counters that such an act cannot
constitute an adverse employment action under the FEHA. Sutter supports its
counterargument with citations to McRae v. Department of Corrections (2006) 142
Cal.App.4th 377 and Horsford v. Board of Trustees (2005) 132 Cal.App.4th 359.
Neither case holds that withholding a paycheck cannot constitute an adverse
employment action.

Sutter has failed to persuade the court that its decision to withhold Johnson’s final
paycheck cannot constitute an adverse employment action. Moreover, Sutter has
failed to produce evidence demonstrating the nonexistence of any triable issue
whether the decision to withhold was based on Johnson’s age. As a consequence, the
court denies the request for summary adjudication of the first cause of action.

In reaching its conclusion, the court is aware of Sutter’s position that evidence of
withheld income is immaterial to the issues in the case. (See Reply Sep. Stmt., UMF
59.) To support this position, Sutter cites Juge v. County of Sacramento (1993) 121
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Cal.App.4 59, 67. Juge reiterates the proposition that, for purposes of summary
judgment, the pleadings delineate the issues for adjudication. In the FAC, however,
Johnson broadly alleges discrimination that can be construed to encompass the
withholding of her paycheck. (See FAC, ¶ 36.) Consequently, Johnson’s evidence of discrimination in the form of withheld income is before the court notwithstanding that
the FAC does not contain specific references to that conduct.

The Second Cause of Action for Disability Discrimination [FEHA]

Summary adjudication is DENIED.

First, Defendants argue that they are entitled to summary adjudication because
Johnson was never “disabled.” They cite a doctor’s testimony to argue that Johnson‘s
only condition was an inability to work with Jones. (See UMF 7.) The inability to work
with a supervisor, without more, does not qualify as a disability under the FEHA. (See
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Hobson v. Raychem (1999) 73 Cal.App.4 614, 628, disapproved on other grounds in
Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.)

Assuming Defendants’ evidence satisfies their initial burden of production, Johnson
has demonstrated the existence of a triable issue of material fact. A psychologist who
evaluated Johnson in November 2011 concluded that Johnson was disabled as the
result of Major Depressive Disorder and Anxiety Disorder. (See Bowen Decl., Exh.
18.) Although the psychologist noted that Johnson was restricted from working under
Jones, his report need not be construed as defining her disability solely in terms of that
restriction. The report also provides that Johnson suffered from severe sleep
disturbance. (See McAlindin v. County of San Diego (9th Cir. 1999) 192 F.3d 1226,
1234 [sleep is a “major life activity” for disability analysis].) At this juncture, the court
must strictly construe Defendants’ evidence and liberally construe Johnson’s. (See,
e.g., Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189.)
Because the evidence need not be construed as positing a disability that consisted of
nothing other than the inability to work with Jones, the court rejects Defendants’ no-
disability argument.

The Third and Eighth Causes of Action for Failure to Prevent Discrimination,
Harassment and Retaliation and Wrongful Termination

Summary adjudication is DENIED.

Sutter argues that the subject causes of action should be summarily adjudicated
because Johnson cannot establish any predicate discrimination, harassment,
retaliation or violation of public policy. As noted above, the court has denied summary
adjudication of Johnson’s discrimination cause of action and has determined that that
cause of action should go to a jury. Thus, Johnson possesses a predicate cause of
action for discrimination, and summary adjudication of the failure-to-prevent cause of
action and the wrongful termination cause of action must go to a jury as well.

The Fourth and Fifth Causes of Action for Failure to Engage in the Interactive
Process and Failure to Accommodate Disability

Summary adjudication is DENIED.

First, Sutter argues that it is entitled to summary adjudication because Johnson cannot
establish any disability. For reasons stated above, the court rejects this argument.

Next, Sutter argues that summary adjudication is warranted because (1) Johnson
never identified any “reasonable accommodation” other than accommodations designed to her limit contact with Jones and (2) Sutter was not required to
accommodate Johnson by allowing her to work with a different supervisor. Sutter has
cited two federal authorities to support this argument. (See Moving Memo. at 11:9-18.)

The court declines to follow Sutter’s federal authorities. The FEHA is broader than
federal employment anti-discrimination law protecting disabled employees. (See
EEOC v. UPS (9th Cir. 2005) 424 F.3d 1060, 1072-1073.) Moreover, a Sutter
representative admitted a deposition that at least one of the accommodations that
Johnson sought could be reasonable depending on the circumstances. (Brown Decl.,
Exh. 6 [Marino Depo. Tr.] at 107:21-108:11.) This is sufficient to create a triable issue
on the issue of reasonableness. Hence, the court denies summary adjudication.

The Sixth Cause of Action for Retaliation

Summary adjudication is DENIED.

Sutter argues that it is entitled to summary adjudication because Johnson cannot
establish a causal link between protected activity and any adverse employment action.
It also reiterates its argument that Johnson cannot establish any adverse employment
action within the FEHA’s purview. The court rejects Sutter’s arguments for the same
reasons its rejects the arguments vis-à-vis the first cause of action: Johnson asserts
that her final paycheck was withheld, and Sutter has failed to produce evidence that
withholding the paycheck was not in retaliation for Johnson’s protected conduct.
Consequently, the court denies summary adjudication.

The Seventh Cause of Action for Harassment

Summary adjudication is DENIED.

Defendants argue that Johnson cannot establish that any harassment occurred
because of any protected status, i.e., Johnson’s age or disability. One of the material
facts on which Defendants rely is UMF 35, which reads, “[p]rior to going out on leave
beginning June 2011, Plaintiff never told anyone at Sutter that she had an alleged
disability.” Based on this material fact, Defendants contend that any allegedly
harassing conduct aimed at Johnson could not have been based on disability.

Assuming Defendants’ evidence suffices to shift the burden of production, Johnson’s
evidence demonstrates the existence of a triable issue. In response to UMF 35,
Johnson has produced evidence that Sutter could have suspected her disability. After
a Sutter Human Resources Manager interviewed Johnson in conjunction with a co-
worker’s claim that Johnson had herself engaged in workplace harassment, the
manager memorialized the following recommendation:

Initially, we need to immediately ask if Ms. Johnson has a medical
condition that could prevent her from doing her job successfully. If the
answer is yes, we need her to connect with Disability immediately.

(Bowen Decl., Exh. 14 at SUT001601.) This recommendation followed Johnson’s
statement, made during her interview with the manager, that she took medication “to
handle Ms. Jones since she yells at [Johnson].” (Id. at SUT001600 [brackets added].)
Liberally construed, this evidence suffices to create a triable issue as to whether Sutter
perceived Johnson to be disabled before she went out on leave. (See Cal. Gov’t Code § 12926(o).) As a consequence, summary adjudication is denied.

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Defendants’ citation to King v. UPS, Inc. (2007) 152 Cal.App.4 426, 433, does not
alter the court’s conclusion. That case did not involve allegations of workplace
harassment.

The Ninth Cause of Action for Defamation

Summary adjudication is DENIED.

Defendants argue first that they are entitled to summary adjudication because Johnson
is unable to establish any defamatory statements. In support of this argument,
Defendants have produced evidence that Johnson cannot establish that Jones
provided any negative job references to prospective employers. (See UMF 38
[incorporating UNMF 24 by reference].) This evidence does not establish the
nonexistence of any triable issue of material fact because Johnson alleges defamatory
statements other than Jones’ negative job references. (See FAC, ¶¶ 82-83.) Because
Defendants’ evidence does not confront all the relevant allegations, it does not
demonstrate entitlement to summary adjudication of the entire ninth cause of action.
(See CCP § 437c(f)(1).)

Although UFM 33 is not listed in the Moving Separate Statement as one of the facts
supporting Defendants’ first argument, Defendants cite to it in their Moving
Memorandum of Points and Authorities. (See Moving Memo. at 20:1-3.) The
evidence supporting UMF 33 does not alter the court’s conclusion since it does not
establish that no defamatory statements were actually made.

Next, Defendants argue that the one-year statute of limitations at CCP § 340(c) bars
the ninth cause of action. Defendants base this argument on the facts that (1)
Johnson asserted in 2009 that Jones had given her negative references and (2)
Johnson did not file the original complaint in this case until July 2012. (See UMF 40.)
Again, this evidence does not dispose of all Johnson’s allegations in the FAC and
therefore does not entitle Defendants to summary adjudication.

Johnson’s allegations can be construed to provide that Jones and other Sutter
personnel made defamatory statements as late as the end of Johnson’s employment
in April 2012. (See FAC, ¶¶ 82-83; UMF 17.) Defendants’ evidence, however, does
not confront these allegations or establish that they cannot support a defamation
cause of action. Consequently, even if Defendants’ evidence establishes that some of
the statements supporting Johnson’s defamation cause of action are time-barred, it
does not nullify the entire ninth cause of action. (See CCP § 437c(f)(1).)

Finally, Defendants argue that the managerial privilege requires the court to grant
summary adjudication of the ninth cause of action. Assuming the managerial privilege
otherwise applies, summary judgment is unwarranted because Defendants have not
attempted to produce any evidence demonstrating that Johnson will be unable to show
malice. (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 729.)
Consequently, Defendants have not met their burden of production, and summary
adjudication is denied.

Judicial Notice Defendants’ request for judicial notice of two superior court rulings in other cases is
DENIED as irrelevant.

Objections to Evidence

Defendants’ Objections Nos. 1-6 and 20 are SUSTAINED.

The balance of Defendants’ objections are OVERRULED. The court notes that, to the
extent Johnson has submitted documents that Sutter produced in discovery, the
documents have been authenticated under Evidence Code § 1414.

Conclusion

The motion is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.