Filed 6/18/20 Shelly v. Kaiser Foundation Health Plan, Inc. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MARK SHELLY,

Plaintiff and Appellant,

v.

KAISER FOUNDATION HEALTH PLAN, INC. et al.,

Defendants and Respondents. B290362

(Los Angeles County

Super. Ct. No. BC624702)

APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara Scheper, Judge. Affirmed.

Gusdorff Law, Janet Gusdorff; Sottile Baltaxe, Timothy B. Sottile, Michael F. Baltaxe and Payam I. Aframian for Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza, Joshua C. Traver and Alysia B. Carroll for Defendants and Respondents Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Southern California Permanente Medical Group, and James Prestridge.

Dr. Mark Shelly appeals the judgment entered after the trial court granted summary judgment in favor of Shelly’s former employer, Southern California Permanente Medical Group (SCPMG), and his supervisor, Dr. James Prestridge, on Shelly’s complaint for age discrimination, whistleblower retaliation, defamation and related causes of action. Shelly contends he established triable issues of material fact on each of his claims. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Shelly’s Complaint
2.
Shelly worked as a doctor of podiatric medicine at Kaiser Permanente Medical Center in Panorama City (Kaiser hospital) from April 17, 1989 until his employment was terminated on August 21, 2015 at age 56. After his discharge Shelly sued Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, SCPMG (collectively the Kaiser defendants) and Prestridge primarily alleging he was fired because of his age and in retaliation for complaining that the Kaiser defendants’ policy of double- and triple-booking patients for a single time slot threatened patient safety.

Shelly’s lawsuit asserted causes of action against all defendants for whistleblower retaliation in violation of Health and Safety Code section 1278.5 and Labor Code section 6310, retaliation, age discrimination and failure to prevent harassment and discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subds. (a), (h), (k)), wrongful termination in violation of public policy, unfair competition (Bus. & Prof. Code, § 17200), intentional infliction of emotional distress and defamation.

3. The Kaiser Defendants’ and Prestridge’s Motion for Summary Judgment/Summary Adjudication
4.
a. The moving papers
b.
The Kaiser defendants and Prestridge jointly moved for summary judgment or, in the alternative, summary adjudication. They explained Shelly was employed solely by SCPMG, a multi-specialty medical group practice that provided Kaiser Foundation Health Plan, Inc. members with medically related services. Because Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals and Prestridge were not Shelly’s employer, they argued, none of them could be held liable for his employment law claims.

In addition, the Kaiser defendants asserted, Shelly could not prevail on any of his FEHA and related employment law claims because he had been terminated for a legitimate business reason—he had routinely failed to comply with patient charting requirements and then, when told to address his charting deficiencies, made egregious charting errors in patients’ files that could have jeopardized patient safety.

Jose Solorzano, who worked as Department Administrator for Orthopedics and Podiatry at the Kaiser hospital from July 2011 to July 2014, and Prestridge, the hospital’s lead surgical podiatrist and Shelly’s direct supervisor from 2012 until Shelly’s termination, provided declarations in support of the Kaiser defendants’ and Prestridge’s summary judgment/summary adjudication motion. As background, both men explained that, since 2008, SCPMG has used an electronic medical records system called KP HealthConnect. As part of that system, health care providers have an electronic “in-basket” that contains links to patient charts, emails, messages, test results and referrals requiring action by the physician or podiatrist. Patient charts with uncompleted tasks remain open in the provider’s in-basket until the action is completed and the item is closed. SCPMG limits the amount of time a patient’s chart and other open tasks may remain in a physician’s in-basket: Patient messages, unread patient emails and cosigned medications and orders are to be resolved within two days; test and lab results must be reviewed within three days; open charts must be closed within 14 days.

As the department administrator, Solorzano was notified when a health provider failed to address his or her electronic in-basket within the specified time periods. On March 5, 2013 he was informed that Shelly was significantly out of compliance with his in-basket requirements, having more than 100 open charts in all categories. When Solorzano spoke to Shelly about the problem, Shelly did not seem interested in addressing his delinquencies. Solorzano called Debra Nelson, the human resources manager at the Kaiser hospital, to inform her about Shelly’s lack of compliance with SCPMG’s charting policy and Shelly’s indifference to it, telling her, “[Shelly] has an attitude that he doesn’t care and that they can’t do anything to him.”

On March 25, 2013 Solorzano and Prestridge admonished Shelly about his lack of compliance and implemented a performance improvement plan (PIP). As documented in the written PIP, its purpose was to “re-state department expectations for managing your HealthConnect in-basket. . . . [¶] Attending to one’s in-basket regularly and in a timely manner translates to excellent care. In-basket items left unattended pose a risk to patient safety.” Solorzano and Prestridge gave Shelly at least two weeks to address all delinquent in-basket items. The PIP admonished Shelly “[t]his is a very serious issue and if there is not immediate and sustained improvement, there could be further corrective action including suspension from your duties. You are well-liked by your patients and we would like to see you succeed. [¶] We will meet regularly over the next six months to monitor your in-basket management. Following successful completion of this Plan, you will be expected to perform at a satisfactory level on a consistent basis in all areas of your practice.”

Following the March 2013 PIP Shelly brought his in-basket up to date. However, according to an in-basket management report dated October 16, 2013, Shelly had again fallen out of compliance. To make matters worse, Prestridge and Solorzano stated, on October 16, 2013 Shelly complained he had “too many patients” scheduled for the following day and in protest had “unprofessionally” called out sick on October 17, 2013.

On November 5, 2013 Solorzano and Prestridge issued a second PIP, identifying Shelly’s failure to comply with the hospital’s electronic charting policies. This document admonished Shelly that failure to address delinquent items in his in-basket by November 8, 2013 would result in further corrective action and stated, “[T]his notice is your final warning about this issue.” The PIP also characterized Shelly’s last-minute sick day as “suspicious” and warned, if there were “any future instances of suspicious call-offs, you may be required to submit an off work note from your treating physician before your request for sick leave is approved or upon your return.”

According to Prestridge, Shelly responded to the November 5, 2013 PIP by stating he had lacked adequate time to both treat patients and handle the voluminous electronic charting tasks expected of him. Prestridge agreed to reduce the number of patients scheduled during Shelly’s shifts so he could catch up with his outstanding charting responsibilities. Despite this accommodation and the PIP warnings, Prestridge stated, Shelly routinely remained out of compliance in 2014 and had to be reminded in writing on several occasions to address his in-basket.

In March 2015, in an effort to attain some efficiency in his electronic charting, Shelly created a short-cut function in KP HealthConnect to assist in documenting a patient’s preoperative health care history. However, when he used the function he created, he inadvertently copied one patient’s name, age, sex, vital signs, past medical history, social history, allergies, medications, clinical presentation and other data into the preoperative patient histories contained in the medical charts of 19 other patients.

On May 5, 2015 a medical records analyst discovered the errors during an audit of patients’ medical charts and immediately notified his supervisor, who, in turn, notified Prestridge.

On May 8, 2015 Prestridge, in consultation with human resources, decided to place Shelly on administrative leave pending an investigation into the charting errors. During his review of the affected patient charts, Prestridge noticed that Shelly had changed some parts of the erroneous data copied into the affected patients’ records, such as the patient’s chief complaint and surgical history, indicating Shelly had reviewed that patient’s preoperative history, but had nonetheless left the balance of the erroneous information intact. Even more concerning, according to Prestridge, was that Shelly was required as a matter of protocol to review each of his patient’s preoperative history prior to surgery and had attested in several surgical patient charts prior to surgery that there were no changes to the patient’s condition. “By making that attestation despite the existence of obviously inaccurate patient data, I determined Dr. Shelly engaged in repeated episodes of substandard care. This could have adversely affected the patient if Dr. Shelly or another covering provider were to rely on inaccurate or pre-surgical history, active medications, drug allergies, or other inaccurate data, when taking a patient to surgery.” Due to these “egregious charting errors” and Shelly’s “chronic past problems in medical records documentation,” Prestridge decided to terminate Shelly’s employment. Prestridge sent a memorandum to Shelly documenting his termination and copied Nelson and Odie Morejon, the department administrator at the time of Shelly’s termination. The letter cited Shelly’s “lapses in patient care and documentation [that were] so egregious and deviate so far from the acceptable standard of care that they cannot be tolerated.”

c. Shelly’s opposition papers
d.
In his opposition papers Shelly argued triable issues of material fact existed as to whether SCPMG terminated him due to his age and in retaliation for his health and safety complaints. Shelly expressly abandoned (1) all claims against Kaiser Foundation Health Plan, Inc. and Kaiser Foundation Hospitals; (2) his claims for retaliation in violation of FEHA and intentional infliction of emotional distress against all defendants; (3) all claims against Prestridge except for defamation; and (4) his prayer for punitive damages.

Shelly primarily relied on his own lengthy declaration to support his opposition to the motion. He highlighted his exemplary performance reviews from the 1990’s and early 2000’s, as well as more recent positive patient satisfaction surveys, and insisted he had always provided the highest quality of care to his patients.

According to Shelly, when he started with Kaiser hospital in 1989, he treated approximately 16 patients per day. By the time of his termination in August 2015, that number had grown to an average of 22 patients per day and sometimes as many as 28 patients a day, “which was completely unacceptable from a patient safety standpoint. [All department podiatrists] were frequently ‘triple booked,’ which meant we would have three patients slotted in one time spot. . . . With this kind of patient load and insufficient numbers of professional staff, there was not enough time to give appropriate care to each patient.”

Shelly stated he had complained to “the Administration for years that we were understaffed and that this volume of patients was negatively affecting patient care.” In particular, “[s]tarting in the late 90’s I began complaining to the Department Administrator that we were overbooked, understaffed and this was affecting patient care. I would estimate that I complained to the Department Administrator twice a month for over 10 years, through 2010. This included Solorzano. [¶] When we started becoming triple booked in approximately 2010, I started complaining weekly to the Department Administrator that we were overbooked, understaffed and this was affecting patient care. These weekly complaints were made to Solorzano and I noticed that he began to resent me [for] making these complaints. He always said he’d look into it, but the situation was never resolved or adequately addressed. [¶] I also complained to the Orthopedic Chief Dr. Peter Laimans,” who directed “me to speak with the Department Administrator, Solorzano. [¶] I also complained to the Assistant Medical Group Administrator, Matthew Graeser, every couple of months. Mr. Graeser was the head Administrator Orthopedics and Podiatry to whom Solorzano reported. [¶] Basically the response from the Administration was usually that we just had to deal with it, and nothing really changed. . . . [E]ventually Dr. Prestridge in or about 2014 told me that these problems would never be fixed so you just have to learn to live with it.” Shelly also noticed that, beginning in 2013, “Solorzano and Dr. Prestridge appeared to be frustrated with my complaints. . . . They would scoff and roll their eyes at me, as if they were bothered by my complaints.”

Shelly maintained that requirements imposed on SCPMG providers to the detriment of patient safety increased in 2008 when providers were required to switch from paper charts to electronic charts, which was time consuming and took valuable time away from patients. Shelly stated, “I frequently complained to management that this increased charting requirement, coupled with the increasing patient population was affecting patient care. The general response from Management and the Administration that this was the way things were going to stay and additional training was minimal to non-existent.”

Shelly described the in-basket delinquencies identified in his March and November 2013 PIPs as “a low priority”; they involved checking a box or acknowledging receipt of tests he had already substantively reviewed. They did not involve matters of urgency or patient health. Moreover, he had asked for additional training on KP HealthConnect following his PIPs, but did not receive any because the training was scheduled for times he was seeing patients and was not offered on the weekends. He also stated that, despite the admonishments in the PIPs that he would be required to meet regularly with his supervisors to monitor his in-basket management, those meetings never occurred.

Shelly insisted he had called in sick on October 17, 2013 because he had begun suffering from acute anxiety due to the potential danger to patient safety caused by patient overbooking and he needed to attend to his own health. Moreover, while acknowledging that Prestridge had reduced his workload following the November 2013 PIP to allow him to catch up on his in-basket, Shelly asserted this accommodation was temporary—it lasted only two weeks—and then the “normally excessive patient load” and concomitant excessive in-basket management responsibilities resumed.

To increase his charting efficiency in documenting preoperative visits, on March 15, 2015 Shelly created a short-cut function, something KP HealthConnect users were encouraged to do. However, in using that function, he inadvertently copied one patient’s medical data onto several other patients’ medical records. He did not realize these errors had occurred until he was notified in May 2015 and put on administrative leave pending an investigation. He was not given the opportunity to explain or defend himself. Shelly insisted several providers such as an anesthesiologist and a surgical nurse also reviewed the patients’ charts prior to surgery and had similarly missed the charting errors. Moreover, he alleged, his computer error had caused no real danger to patients. He explained that, “just before administering medication to the patient, we always ask the patient again about their allergies and whether the medication can be administered.” In addition, “there would be a ‘huddle’ among those in the operating room, including the Anesthesiologist and/or [Certified Registered Nurse Anesthetist], Operating Room Nurse, Surgical Assistance, and Operating Room technician before any medication was administered to ensure only the proper medication was provided.” Because of these additional reviews, he stated, “there was a 0% chance of providing improper medication to the patient based on some incorrect information contained in the pre-op history and physical.” Shelly also emphasized that “there were no adverse consequences to any of my patients. All of these patients had undergone successful surgeries by the time this error was discovered.”

Shelly disputed Prestridge’s claim he had made a “fraudulent attestation” when reviewing a patient’s chart. (However, in their reply papers the Kaiser defendants provided an example, which Shelly had authenticated at his deposition, of Shelly’s confirmation in KP HealthConnect that he had reviewed the data of an affected patient and there were no changes, even though the patient’s preoperative information had been incorrect.) Shelly insisted his computer error was something that could have easily been corrected, given sufficient time and training.

According to Shelly, SCPMG’s policy required management to notify a provider when his or her in-basket was not in compliance and then give the provider 14 days to bring the in-basket into compliance. If the in-basket problem was not corrected in that time, the provider was to be given another 14 days to come into compliance. Only then, if the matter was still not resolved, would the provider be subject to appropriate discipline. Shelly insisted that policy was not followed with him; he was never given 28 days to get his in-basket into compliance. In fact, he observed, in his second PIP in November 2013 he was given only one week to achieve compliance. Shelly also stated he had been able to bring his inbox into compliance within the time allotted.

Shelly asserted an e-mail from October 22, 2013 to Nelson and other providers identified several individuals who were not in compliance, but he was the only one who was ultimately fired. To support this statement, Shelly cited Nelson’s deposition in which she stated she did not know if any of the other individuals identified in the October 2013 e-mail had been fired for in-basket mismanagement.

As to his claim for age discrimination, Shelly provided evidence he was 56 years old, the oldest provider in his department by 15 years, and SCPMG replaced him with a surgical podiatrist “in his early 30’s.” As to defamation, Shelly cited the termination letter that accused him of “egregious” charting errors that were below the standard of care.

5. The Court’s Ruling Granting Summary Judgment
6.
The trial court granted the Kaiser defendants’ and Prestridge’s summary judgment motion on all causes of action that Shelly had not expressly abandoned in his opposition papers.

The court ruled Shelly could not establish a causal connection between his protected complaints about patient safety and his termination and, therefore, could not prevail on his cause of action for retaliation.

On Shelly’s claim of age discrimination, the court found Shelly had failed to raise any triable issue of fact that he was terminated with discriminatory intent.

As to Shelly’s causes of action for failure to prevent discrimination and retaliation, wrongful termination in violation of public policy and unfair competition, all of which rested on the allegations of age discrimination and unlawful retaliation, the court ruled those actions failed for the same reason as the claims on which they were based.

Finally, the court ruled the statement in Shelly’s termination letter was nonactionable opinion and could not support a defamation claim as a matter of law.

Judgment was entered on March 19, 2019. Shelly filed a timely notice of appeal.

DISCUSSION

1. Standard of Review
2.
A motion for summary judgment is properly granted only when “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) We review a grant of summary judgment de novo and, viewing the evidence in the light most favorable to the nonmoving party (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618), decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.)

3. The Court Did Not Err in Granting the Motion as to Shelly’s Claim for Age Discrimination
4.
FEHA prohibits an employer from discriminating against an employee based on age. (Gov. Code, § 12940, subd. (a).) Because discriminatory animus is difficult to prove, the California Supreme Court has adopted the three-stage burden shifting test established by McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas): The plaintiff at trial “has the initial burden to make a prima facie case of discrimination by showing that it is more likely than not that the employer has taken an adverse employment action based on a prohibited criterion. A prima facie case establishes a presumption of discrimination. The employer may rebut the presumption by producing evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer discharges this burden, the presumption of discrimination disappears. The plaintiff must then show that the employer’s proffered nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may offer any other evidence of discriminatory motive. The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214-215; accord, Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-356 (Guz).)

A plaintiff establishes a prima facie case of age discrimination under FEHA by providing evidence he or she (1) was a member of a protected class—a person over 40 years of age (Cal. Code Regs., tit. 2, § 11074); (2) was qualified for the position he or she sought or was performing competently in the position he or she held; (3) suffered an adverse employment action, such as termination or demotion; and (4) some other circumstance suggesting a discriminatory motive, which can include being replaced by a significantly younger person. (Guz, supra, 24 Cal.4th at p. 355; Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.)

The McDonnell Douglas framework is modified in the context of summary judgment. An employer may move for summary judgment or summary adjudication of an employment discrimination cause of action by presenting evidence that one or more elements of the prima facie case is lacking, or the employer acted for a legitimate, nondiscriminatory reason. (Guz, supra, 24 Cal.4th at p. 355; Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.4th 1158, 1181-1182.) A legitimate reason in this context is a reason “facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” (Guz, at p. 358, italics omitted; accord, Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861 (Serri).)

The plaintiff may defeat summary judgment by producing “‘substantial responsive evidence’” demonstrating the existence of a “material triable controversy as to pretext or discriminatory animus on the part of the employer.” (Serri, supra, 226 Cal.App.4th at p. 862.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361; accord, Serri, at p. 862.)

The Kaiser defendants proffered evidence that Shelly was not performing competently in the position he held and thus could not establish his prima facie case. Alternatively, even if Shelly could demonstrate he performed competently by providing high quality health care to his patients, the Kaiser defendants argued Shelly was fired for a legitimate, nondiscriminatory reason relating to significant charting errors and chronic charting deficiencies.

In his opposition to the motion, Shelly highlighted evidence establishing his prima facie case—his age (56), the age of his replacement (an individual in his mid-30’s) and his positive performance reviews throughout his more than 26-year career with Kaiser. However, he provided no admissible evidence directed to discriminatory animus or to show the proffered reason for his termination was a pretext for age discrimination. His general assertion he was targeted for termination because a younger person would be more skilled at, and require less training to satisfy, electronic record requirements is speculation, not evidence. He supplied no admissible evidence whatsoever from which a trier of fact could infer SCPMG’s proffered reason for terminating his employment—his charting deficiencies culminating in incorrect information in patient files—was pretext for discrimination based on his age. (See Guz, supra, 24 Cal.4th at p. 362 [summary judgment proper when, “given the strength of the employer’s showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred”].)

5. The Court Did Not Err in Granting the Motion as to Shelly’s Claim for Whistleblower Retaliation Under Health and Safety Code Section 1278.5
6.
Health and Safety Code section 1278.5, subdivision (b)(1)(A), makes it unlawful for a “health facility” to retaliate in any manner against a patient, employee or member of the medical staff or other health care worker because that person has “[p]resented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity.” “Health facility,” for purposes of this section, “means a facility defined under this chapter, including but not limited to, the facility’s administrative personnel, employees, boards, committees of the board, and medical staff.” (Health & Saf. Code, § 1278.5, subd. (i).)

The same McDonnell Douglas burden-shifting analysis applicable to discrimination and retaliation claims under FEHA applies to whistleblower retaliation claims under Health and Safety Code section 1278.5. (Taswell v. Regents of University of California (2018) 23 Cal.App.5th 343, 365 (Taswell); Armin v. Riverside Community Hospital (2016) 5 Cal.App.5th 810, 830; see generally Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [describing retaliation claim under FEHA].) That is, the plaintiff must make a prima facie showing that an adverse action was caused by his or her health and safety complaint. (See Armin, at p. 829 [plaintiff must make a “prima facie showing of a causal connection between an adverse action and the complaint that allegedly engendered the retaliation”].) If the plaintiff makes a prima facie showing, the burden shifts to the health facility to demonstrate a legitimate reason for the adverse action. Once a legitimate reason is proffered, the burden rests with the plaintiff to demonstrate the proffered reason is “pretextual, i.e., the real reason was to retaliate against the plaintiff for some earlier complaint about unsafe patient care.” (Ibid.; see generally Yanowitz, at p. 1042.)

Shelly contends he raised a triable issue regarding the causal relationship between his health and safety complaints and his termination by demonstrating the temporal proximity of the two events. (See Taswell, supra, 23 Cal.App.5th at p. 365 [whistleblower retaliation for making health and safety complaint may be proved by circumstantial evidence of close temporal proximity between the protected disclosure of information and the adverse treatment]; see also Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 243 [“[n]otwithstanding the absence of direct evidence of retaliatory animus, close temporal proximity between a plaintiff’s protected activity and the alleged retaliatory conduct against the plaintiff has been found sufficient to support a prima facie case of causation”].)

The trial court here ruled no close temporal proximity existed that would support an inference of retaliatory animus because, by Shelly’s own admission, his complaints about SCPMG’s patient booking practices began decades before his termination. Shelly contends this analysis was flawed. While the lengthy period of complaints might be inconsistent with causation, he argues, it does not negate causation as a matter of law, particularly when Shelly alleged his complaints continued on a weekly basis up to the date of his termination.

Assuming, without deciding, Shelly’s evidence established some temporal proximity between his protected complaints and his termination sufficient to establish a prima facie case, that alone does not preclude summary judgment. (See Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94 [“a mere temporal relationship between an employee’s protected activity and the adverse employment action, while sufficient for the plaintiff’s prima face case, cannot [alone] create a triable issue of fact if the employer offers a legitimate, nonretaliatory reason for the adverse action”]; Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112 [“although a plaintiff can satisfy the initial burden under the McDonnell Douglas framework by producing evidence of ‘nothing more than . . . the proximity in time between the protected action and the allegedly retaliatory employment decision,’ such evidence of temporal proximity ‘only satisfies the plaintiff’s initial [prima facie] burden’”]; McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388 [same].)

In their moving papers SCPMG provided evidence of a legitimate, nonretaliatory reason for terminating Shelly: To alleviate his chronic in-basket backlog, he utilized a function that copied confidential medical information of one patient into the medical records of 19 other patients and attested prior to surgery that he had reviewed the preoperative data of affected patients and stated, falsely, that the information was correct. This facially legitimate justification shifted the burden on summary judgment to Shelly to establish a triable issue of material fact that SCPMG’s reason was pretextual.

Shelly insists his showing SCPMG failed to follow its own disciplinary policies created the required factual dispute. (See Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 239 [an employer’s failure to follow its own policies and procedures may provide evidence of pretext]; see also Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) 429 U.S. 252, 267 [departure from normal procedures “might afford evidence that improper purposes [played] a role” in an employee’s termination].) In particular, he asserts, SPCMG’s written policy was to afford a provider deficient with in-basket management an initial 14 days to come into compliance, and then, if still not compliant, an additional 14 days before imposing discipline. Yet, Shelly argues, he was not given 28 days before he was “disciplined” with a PIP. Moreover, he never received the additional training he requested or the six months of managerial oversight as described in his PIP. Finally, pointing to Nelson’s testimony that she did not know if other people were fired for in-basket delinquencies, Shelly declares that “no one” else was fired for noncompliance with in-basket protocol.

Contrary to Shelly’s contention, none of the evidence he cites, separately or together, raises a triable issue of fact as to pretext for a retaliatory motive. First, Shelly failed to show any material departure from SCPMG’s policies. By his own admission, Shelly was given at least 14 days (if not 23 days) in March 2013 to become in-basket compliant; and he did so. Apparently, no additional period for compliance was required. The November 2013 PIP gave Shelly less than one week to bring his in-basket into compliance, but Shelly acknowledges he was given a two-week reduction in caseload to accomplish this task. In neither case was discipline imposed. Shelly was simply warned discipline would be forthcoming if delinquencies continued.

Moreover, as discussed, Shelly was not fired for his in-basket delinquencies of 2013. He was terminated only after he made charting errors in 2015 that resulted in inaccurate presurgical medical history for several of his patients. Shelly asserts these errors were not terribly significant—they did not jeopardize patient safety—and thus did not justify a termination. However, Shelly does not contend the charting errors did not occur. Rather, he complains the error was unimportant, and the decision to terminate him unfair, considering his lengthy history of superior medical treatment of patients. This challenge to the wisdom of SCPMG’s decision is not a ground for defeating summary judgment in a retaliation case. (See Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 343 [rather than challenging the wisdom of the employer’s decision, the employee “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ . . . and hence infer ‘that the employer did not act for the [asserted lawful] reasons’”]; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 [issue is whether employer’s motivation for its decision was unlawful, not whether the decision was wise, shrewd or prudent].)

Shelly presented no evidence, for example, that others had made similar mistakes but had not received comparable discipline. Nelson’s deposition testimony that she did not know if others had been fired for in-basket irregularities did not establish the point one way or another. Moreover, as discussed, Shelly was terminated after he used a shortcut that altered medical records of several patients and failed to notice the errors. There was no evidence other providers received more lenient treatment for similar mistakes.

Shelly contends Nelson lied in her deposition when she stated she had interviewed him about the short-cut charting errors and afforded him the opportunity to explain himself. Shelly insists “this never happened.” To the extent this aspect of Nelson’s testimony, not relied on by the Kaiser defendants and Prestridge in their moving papers, raised a factual issue, it did so only with regard to whether Nelson allowed Shelly the opportunity to explain his conduct, not whether the conduct at the heart of the termination decision occurred. Accordingly, it does not raise a material issue of fact as to retaliatory animus.

Shelly’s other arguments similarly fail. For example, Shelly emphasizes that Prestridge became increasingly frustrated with his complaints, responding with “eye rolls” (at an unidentified date) and telling him that “this was the way it was” and to get used to it. He also cites Solorzano’s e-mail to Nelson in 2014 in which Solorzano wrote “FYI” and attached an alert that Shelly was not in compliance with KP HealthConnect charting policies. Shelly insists this evidence of “eye rolls” and Solorzano’s e-mail suggests he was being targeted for termination as early as 2013 after Prestridge became his direct supervisor. None of this evidence, however, undermines the proffered reason for Shelly’s termination. Simply stated, Shelly has not demonstrated that a reasonable juror could find SCPMG’s proffered legitimate reason for his termination was pretext for unlawful retaliation for his health and safety complaints.

7. Shelly’s Remaining Employment-related Claims Fail
8.
Shelly’s claims for wrongful termination in violation of public policy, unfair competition and failure to prevent retaliation and discrimination rest on the viability of his age discrimination and whistleblower retaliation claims. Because those claims fail, the claims premised on his allegations of retaliation and discrimination also fail. (Cf. Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4 [claim for failure to prevent discrimination fails if there is no actionable discrimination]; Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1315 [same].)

9. The Court Did Not Err in Granting the Motion as to Shelly’s Defamation Claim
10.
The elements of a defamation claim are (1) a publication of fact that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720; J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 97.)

Shelly’s defamation claim was based on statements that Shelly had committed “lapses in patient care and documentation so egregious and [that] deviate so far from the acceptable standard of care that they cannot be tolerated.” The letter was published to Shelly, Nelson and Odie Morejon, the administrator for the orthopedics and podiatry department.

In moving for summary judgment, Prestridge and SCPMG argued, among other things, the statements in Shelly’s termination letter were made without malice and thus were privileged. (See Civ. Code, § 47, subd. (c) [a privileged publication or broadcast is one made “[i]n a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information”]; Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1196 [“a defendant who makes a statement to others on a matter of common interest is immunized from liability for defamation so long as the statement is made ‘without malice’”].)

Malice for purposes of Civil Code section 47 means the “‘“the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.”’” (Taus v. Loftus, supra, 40 Cal.4th at p. 721.)

Shelly does not dispute the statements, if made without malice, fall within the common interest privilege. (See McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538 [the common interest privilege “has been determined to apply to statements by management and coworkers to other coworkers explaining why an employer disciplined an employee”]; King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440 [same].) However, citing evidence from his discrimination and retaliation claims that the reasons articulated for his termination were pretext for insidious retaliation or age discrimination, Shelly contends he raised a triable issue of material fact as to whether the statements were made with ill-will or without any reasonable ground for belief in their truth. “His argument is but a reformulation of the same evidence we concluded did not raise genuine triable issues that the discharge was either pretextual or in bad faith. If the discharge was neither pretextual nor in bad faith, it certainly was not malicious.” (King, at p. 440.)

DISPOSITION

The judgment is affirmed. The Kaiser defendants and Prestridge are to recover their costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.