2016-00189644-CU-OE

Mona G. Flores vs. Regents of the University of Ca

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

Filed By: Isvoranu, Delia A.

** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific cause(s) of action or issue(s) on which oral argument is sought. **

Defendant The Regents of the University of California’s (Regents) motion for summary judgment or, in the alternative, summary adjudication of issues is GRANTED in part and DENIED in part.

Regents’ request for judicial notice of court documents is GRANTED.

Overview

This case presents an employment dispute. The plaintiff and former employee is Mona G. Flores, M.D. (“Dr. Flores” or “Plaintiff”). Regents is the defending former employer.

In the operative first amended complaint (FAC), Dr. Flores alleges:

“7. On or around October 1, 2010, [Regents] hired Plaintiff as a Cardiac Surgeon at UC [Davis] Med. Center to perform a variety of cardiac surgeries, and to start and develop a program installing VADs (‘Ventricular Assist Devices’) into patients with heart failure. In early 2012, the cardiac surgery program and the cardiology program started a joint venture, The TAVR (‘Transcatheter Aortic Valve Replacement’) program, to treat aortic stenosis (AS) using a new method. AS is a narrowing of the aortic valve … Traditional treatment for AS is open-heart surgery to replace the damaged aortic valve. However, TAVR provides a minimally invasive alternative approach… .

8. […P]erforming TAVR was considered a prestigious assignment for surgeons at UC Med. Center. […]

[¶]

10. On November 5, 2012, Plaintiff had seen and evaluated a patient for a TAVR Procedure … However, as they were scrubbing, [Dr. Douglas] BOYD asked if he could be the primary surgeon instead… . Plaintiff agreed to take a back seat to BOYD, the only other cardiac surgeon on the team, since he was her senior.

11. However, from that day on, it became clear that the male surgeons in the department had no intention of letting Plaintiff be the primary surgeon on any of the transapical TAVR cases… .

12. BOYD only ever allowed Plaintiff to perform a single transapical TAVR operation, which happened to be the second procedure ever performed at UC Med. Center, also on November 5, 2012. Plaintiff had not had the chance to evaluate this patient prior to surgery, but thought that BOYD had, as the primary surgeon in this case. However, Plaintiff found out later that BOYD had never seen the patient before surgery, and that the patient had only ever been evaluated by the cardiologists on the team. The patient experienced bleeding during the procedure after her valve was replaced, but Plaintiff got the bleeding under control, and the patient went on to recover fully. This complication is an inherent risk of the transapical procedure which was discussed with the patient prior to surgery.

13. Later that week, the case was discussed in two weekly conferences. Plaintiff’s colleagues in attendance agreed that this was an unavoidable complication, except for

BOYD, who blamed and berated Plaintiff in front of everyone at the conference. […F] ollowing the complication on November 5, BOYD insisted upon being the lead surgeon on every procedure thereafter.

14. Plaintiff continued to perform her work, but complained that she was not being allowed to be the primary surgeon on the transapical TAVR cases… The valve company representatives, cardiologists and proctors asked him to let Plaintiff take the lead so that she could also get the benefit of having a proctor while she did her initial cases. These requests were never addressed by BOYD or Plaintiff’s direct supervisor, DR. NILAS YOUNG. […]

15. […] Plaintiff observed a disturbing trend: BOYD was shirking his duties in evaluating the TAVR patients and working them up in clinic, but was insisting on being the primary surgeon on the prestigious transapical TAVR operation. BOYD’s deficiencies were against medical ethics, hospital policy, and the best interests and safety of hospital patients. Specifically, Plaintiff observed that, among other things:

a. BOYD placed notes into the charts of TAVR patients he had not personally examined, resulting in Medicare violations.

b. BOYD falsified medical records to indicate that he had evaluated TAVR patients per the protocol when he had not.

c. BOYD lied to other surgeons when they inquired whether he had personally examined these TAVR patients.

d. BOYD performed ‘tricuspid valve’ surgery using Cormatrix – a biological scaffold approved for use in research setting in animals. However, BOYD performed this procedure on a human without obtaining the necessary approvals, without following research protocols, and in violation of FDA regulation.

16. Plaintiff [also] observed several safety and compliance violations at the hospital, including: inadequate sign-out for CT patients, lack of in-house night coverage for cardiac patients, overworked physician’s assistants (‘PA’), violation of intern work regulations, and lack of assistance in the operating room. Plaintiff observed that one particular PA, ED RANZENBACH, was performing poorly and that his performance was interfering with patient comfort and safety. When Plaintiff reprimanded RANZENBACH, YOUNG undermined her authority over him and instructed RANZENBACH not to follow Plaintiff’s instructions.

17. During this time, YOUNG, BOYD, and other male doctors at the hospital proceeded to mock, humiliate, bully, and harass Plaintiff, in part for her reports of some of the violations she violations she observed:

a. November 2011: Plaintiff attempted to resolve an issue regarding staff’s inappropriate personal use of a storage closet in the VAD area. BOYD disagreed this was an issue, and included RANZENBACH on his reply (via bcc) in a way that made Plaintiff uncomfortable. In responding to these issues, BOYD yelled at Plaintiff sufficiently to make her sob in disbelief. BOYD made inappropriate comments, implying that Plaintiff was irrational because of her family situation including her special needs

child, and accused Plaintiff of not getting along with anyone. YOUNG joined in some of BOYD’s tirade, and did nothing to stop it. YOUNG also told her that she was lucky to have a job, and told her that if she did not like BOYD’s behavior, she could leave.

b. August 31, 2012: […I]n a weekly meeting attended by several of her peers[,] Plaintiff mentioned that RANZENBACH had made an error resulting in the patient requiring urgent surgery. YOUNG then began yelling at Plaintiff, accusing her of only bringing it up because she disliked RANZENBACH. YOUNG reminded Plaintiff of a doctor who had recently been fired, and told her that if she continued to behave this way, she would lose her job too. When Plaintiff asked if YOUNG was threatening to fire her, he denied it. YOUNG proceeded to berate Plaintiff, falsely accusing her of tardiness and absenteeism, humiliating Plaintiff, and making her cry in front of her peers.

c. April 8, 2013: Plaintiff presented 2 TAVR patients at a conference. […] BOYD challenged Plaintiff’s opinion…openly questioning her judgment and telling her he could not believe she actually thought the patient was a candidate… . BOYD and YOUNG continued berating Plaintiff… belittling her surgical judgment… . When Plaintiff told them that the TAVR team had personally asked her to perform the procedure, BOYD insisted that he would be the primary surgeon, not Plaintiff. Later that day, BOYD performed the surgery on the very patient he had berated Plaintiff about at the conference.

d. May 6, 2013: BOYD removed Plaintiff from assisting BOYD with a scheduled surgery on an abrupt half hour’s notice. BOYD informed Plaintiff that Dr. BROADUS ZANE ATKINS would be assisting instead, despite the fact that Plaintiff had been working with the patient in the clinic leading up to the surgery […] because of the events of April 8. Plaintiff complained to Human Resources about this last moment switch, which Plaintiff believed compromised the patient’s safety.

e. June 2, 2013: BOYD again abruptly pulled Plaintiff off a scheduled surgery on another one of her clinical patients in favor of ATKINS. […] Plaintiff replied saying that she should at least be the first assistant in the interest of patient care, since Plaintiff had been the sole surgeon present at the patient’s pre-op conference. In response, BOYD and YOUNG detained Plaintiff once again following the morning meeting. YOUNG then stated that he was the chief, that he would decide who would be performing procedures… .

f. June 15,2013: Plaintiff and YOUNG disagreed during a morning staff meeting on whether to proceed with a risky surgery that Plaintiff believed was unwarranted. YOUNG insisted that she perform the operation anyway. When Plaintiff asked YOUNG if they could discuss this privately after the meeting, YOUNG instead became angry and scolded Plaintiff that she would perform the procedure ‘or else,’ undermining her authority in front of those present. Plaintiff later spoke with the patient’s cardiologist, who agreed that such an invasive surgery was inadvisable for this patient. Nevertheless, YOUNG performed the operation himself

that very afternoon.

g. On August 9, 2013, Plaintiff attended a meeting… . As soon as Plaintiff and the VAD coordinator finished presenting the VAD department’s update, YOUNG immediately began insulting Plaintiff, belittling Plaintiff’s skill as a surgeon, and announcing that she was indefinitely barred from doing any more VAD placements without supervision, all in plain view of Plaintiff’s colleagues. YOUNG’S tirade was so outwardly hostile and demeaning that Plaintiff later received phone calls and emails from colleagues…offering Plaintiff condolences and moral support.

[¶]

19. On June 19, 2013, Plaintiff reported BOYD’s unlawful conduct to acting dean DR. TOM NESBITT, who told Plaintiff he would ‘look into it,’ and then did nothing.

20. On July 12, 2013, Plaintiff reported BOYD’s unlawful conduct, RANZENBACH’s performance issues, and the hospital’s safety and compliance issues to WENDI DELMENDO, Defendant’s Chief Compliance Officer with the Office of the Provost and Executive Vice Chancellor. […] DELMENDO then launched an investigation into Plaintiff’s complaints.

21. On August 1, 2014, MAUREEN STANTON, Vice Provost of Academic Affairs, wrote a letter to Plaintiff that stated: ‘[o]verall, the investigation concluded that while there was evidence of dysfunctional relationships between the faculty members involved in this matter, BOYD and YOUNG’s behavior did not rise to the level of a violation of the Faculty Code of Conduct.’ STANTON further wrote that she was ‘committed to taking appropriate nondisciplinary management actions in response.’

22. On August 17, 2013, Plaintiff took a medical leave until November 11, 2013.

23. On November 8, 2013, Defendant presented Plaintiff with a list of return-to-work options via email. These options included: Plaintiff focusing on her academic, non-clinical duties for the remainder of 2013, and Plaintiff returning as VAD Program Director.

24. On November 12, 2013, Plaintiff returned to work at the end of her leave. At that time, FARMER informed Plaintiff that she would not be allowed to perform routine operations on any patients until the investigation into her complaints was complete, citing FARMER’s concern that BOYD and YOUNG were out to get Plaintiff. […] Plaintiff told FARMER that she needed to be able to operate on patients on a routine basis, or else her lack of practice would jeopardize patient safety, should she be called upon to perform an emergency procedure. FARMER ignored these complaints.

25. On March 25, 2014, after several months of not being allowed to operate, Plaintiff finally gave FARMER an ultimatum: either FARMER would allow Plaintiff back in the operating room on a routine basis, or Plaintiff would stop her work with the VAD program.

26. On April 1, 2014, after no response from FARMER, Plaintiff had no choice but to… relinquish her duties in the VAD program in the interest of patient safety.

27. Plaintiff’s employment agreement was scheduled to terminate on June 30, 2015, and Defendant did not renew her employment agreement. Her appointment was later extended to October 31, 2015, but Plaintiff did not work at all during that extension.

28. Thereafter, Plaintiff applied for numerous surgical positions throughout the United States, eventually moving to Portland, Oregon, for a position with Legacy Health. After she moved, however, Legacy rejected Plaintiff after hearing – erroneously – that she had sued UC Med. Center. Plaintiff was told the staff at Legacy did not feel comfortable working with Plaintiff considering what had happened at UC Med. Center, and the fact that she had not been in the operating room since August, 2013.

29. Plaintiff believes that the termination of her duties, Defendant’s failure to return her to her job, Defendant’s failure to renew her contract, and Defendant’s interference with her efforts to find new employment all occurred in retaliation, harassment, and discrimination against her for the actions described above.”

The FAC contains causes of action for retaliation [Labor Code § 1102.5], retaliation [Labor Code § 6310], gender discrimination [FEHA], gender harassment [FEHA], retaliation [FEHA], Violation of H&S Code § 1278.5, “Labor Code § 1050, et seq.,” and violation of the California Whistleblower Protection Act [Gov’t Code § 8547.10]. Regents now moves for summary adjudication of each of these causes of action and, therefore, for summary judgment. Dr. Flores opposes.

Discussion

The First Cause of Action for Retaliation under Labor Code § 1102.5

Summary adjudication is DENIED.

Dr. Flores alleges that Regents violated Labor Code § 1102.5, subd. (b) and (c).

These subdivisions read:

(b) An employer…shall not retaliate against an employee for disclosing information…to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance…if the employee has reasonable cause to believe that the information discloses a violation of [law or regulation]… .

(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of [law or regulation].

As the terms of § 1102.5(b) reveal, a cause of action under that subsection encompasses the employee’s protected activity, i.e., disclosures of conduct believed to be unlawful, and the employer’s subsequent act(s) in retaliation.

Regents asserts that Dr. Flores only undertook protected activities in July and August 2013, when she filed formal complaints about purportedly unlawful conduct in the hospital. (See Undisputed Material Fact (UMF) 22.) Elsewhere, Regents asserts that the only potentially adverse employment actions it took are the following: (1) permitting Dr. Boyd to be lead surgeon on transapical TAVR cases after late 2012/early 2013, (3) separating Dr. Flores and Dr. Boyd before May 2013 by having her work on the VAD

Program and him work on the TAVR program, and (3) not renewing Dr. Flores’ contract after it expired in October 2015. (See Moving Memo. at 12:12-16 [“Here, all of Plaintiff’s claims are tethered to three decisions”].) Regents asserts that it possessed lawful, non-retaliatory reasons for each of these adverse employment actions. (UMF 5-11, 18, 20, 23, 25.) An employer’s legitimate, nonretaliatory reasons for imposing adverse employment actions can defeat a retaliation cause of action under § 1102.5. (See Lab. Code § 1102.6 [where proved by clear and convincing evidence, employer’s legitimate reasons for adverse employment actions provide an affirmative defense].) As a result, Regents argues summary adjudication should be granted.

The court rejects Regents’ position because (1) Regents has not demonstrated that Dr. Flores’ only protected activities occurred in the summer of 2013 and (2) Regents has not demonstrated that the only adverse employment decisions at issue are the three it tenders. The result is that Regents has not demonstrated the nonexistence of any triable issue in relation to a claim that it retaliated against Dr. Flores with a campaign of public humiliation, bullying and the undermining of her authority.

The first step in analyzing Regents’ request for summary adjudication of the first cause of action is an examination of the supporting allegations, since they frame the issues. (See Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1603.) In her general allegations, Dr. Flores alleges that between early 2012 and April 2013, she observed Dr. Boyd violate FDA and Medicare regulations as well as falsify medical records. (FAC, ¶ 15.) She alleges she observed several other safety and compliance violations at the hospital during the same period. (Id., ¶ 16.) Furthermore, she alleges in the general allegations that, “[d]uring this time,” Dr. Young (a supervisor) and Dr. Boyd (a colleague) and “other male doctors at the hospital proceeded to mock, humiliate, bully and harass [her], in part for her reports of some of the violations she observed[.]” (Id.,

¶ 17 at 6:18-20.) After recounting a campaign of publicly humiliating experiences between November 2011 and August 2013, Dr. Flores alleges that she understood the campaign to be “discrimination, retaliation, and harassment for [her] reporting the cited illegal conduct and for asserting her right to do so.” (Id., ¶ 18.) This allegation only makes sense if Dr. Flores made some protected complaints, and perhaps before she made any protected complaints, before the campaign ended in or around April 2013.

The allegations can be read to describe Dr. Flores’ protected activities before she made the formal complaints in summer 2013, on which Regents focuses. Because Regents is the party moving for summary judgment, it was Regents’ burden to produce evidence establishing the universe of activities claimed by Dr. Flores to qualify as protected under Labor Code § 1102.5. Defendants typically establish such facts with admissions in the plaintiff’s deposition testimony or written discovery responses. Regents has not produced such evidence. As a result, Regents’ evidence does not bar an inference that Dr. Flores engaged in protected activities in 2011 and 2012.

Nor has Regents established that the three adverse employment actions it tenders are the only ones at issue. Returning to the allegations, the court notes that the first cause of action is predicated partly on the “berating, humiliating and bullying [Dr. Flores] in front of her colleagues.” (See FAC, ¶ 33.) Regents did not address this allegation. Although nitpicking and criticisms related to an employee’s job duties generally do not amount to an adverse employment action, (see Pinero v. Specialty Restaurants (2005) 130 Cal.App.4th 635, 646), ongoing public criticism, humiliation and conduct undermining the employee’s relationships with subordinates can become actionable. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052-1053, 1060-1062;

see also McRae v. Department of Corrections & Rehab. (2006) 142 Cal.App.4th 377, 394 [“[M]atters such as the lack of a lab coat or a desk do not compare in significance to matters such as demotions, loss of pay or benefits, public humiliation, or harassment in the workplace”], italics added; Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1171-1172 [“[E]mployers have the right to unfairly and harshly criticize their employees, to embarrass them in front of other employees, and to threaten to terminate or demote the employee. [Citations.] [¶] Nevertheless, a continuous course of such actions, uncorrected by management, can constitute objectively intolerable working conditions”].) Because Regents disregarded Dr. Flores’ allegation that she suffered actionable retaliation by way of bullying and public humiliation, it did not tender material facts establishing that no such retaliation occurred. Furthermore, because Regents did not address retaliation by public humiliation and bullying, it did not establish that it possessed legitimate business reasons for engaging in such conduct.

In sum, Regents did not meet its initial burden to demonstrate that there is no triable issue in relation to allegations about a campaign of public humiliation and bullying in response to protected activities occurring in 2011 and 2012. The burden to produce evidence never shifted to Dr. Flores, and summary adjudication is denied.

In denying summary adjudication, the court is aware of cases in which summary adjudication of a discrete legal claim within a cause of action was allowed. (See Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854.) Regents has not asked for an order granting summary adjudication of any claim within the first cause of action, and Dr. Flores has not had a fair opportunity to address such an approach. Accordingly, the court does not consider whether Regents might otherwise be entitled to summary adjudication of a claim within the first cause of action aside from one based on ongoing humiliation and bullying.

The Second Cause of Action for Retaliation under Labor Code § 6310

Summary adjudication is DENIED.

The second cause of action incorporates by reference all the preceding allegations. As Regents observes, “Labor Code section 6310(a)…prohibits retaliation ‘because’ the employee complained to the employer about health and/or safety issues.” (Moving Memo. at 15:23-24.) Given this, the court denies summary adjudication for the same reasons it denies summary adjudication of the first cause of action: the allegations fairly describe protected complaints other than those Regents confronted in the moving papers. The allegations also fairly describe an adverse employment action that Regents failed to confront. Because Regents failed to meet its initial burden, the burden never shifted, and summary adjudication is unwarranted.

The Fifth Cause of Action for Retaliation [FEHA]

Summary adjudication is DENIED.

Under the FEHA, an employer may not discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. (Gov’t Code § 12940(h).) Dr. Flores alleges that Regents retaliated against her “following her complaints to management,” (FAC ¶ 54), as well

as her complaints to the EEOC/DFEH about discrimination and harassment based on gender. (Id.) Unlike the retaliation causes of action above, Dr. Flores’ fifth cause of action cannot be predicated on complaints about safety violations or other acts unrelated to the misconduct that FEHA prohibits. Bearing this in mind, the protected activities that Dr. Flores alleges to support her fifth cause of action are (1) her report to Dean Nesbitt on 6/19/13 (FAC, ¶ 19); (2) her report to Chief Compliance Officer Delmendo on 7/12/13 (id., ¶ 20); and (3) her DFEH complaint about unequal pay and other gender-based discrimination, which she made on 5/02/14 (id., Exh. A).

With respect to the 6/19/13 compaint to Dean Nesbitt, Dr. Flores alleges that she “understood Drs. Boyd’s and Young’s campaign of public humiliation against her to be “discrimination, retaliation, and harassment” for her earlier complaints. (FAC, ¶ 18.) She then alleges that she reported Dr. Boyd’s unlawful conduct to Dean Nesbitt, but Dean Nesbitt “did nothing” after stating he would look into the matter. (Id., ¶ 19.) Dr. Flores alleges that she made her next complaint approximately 23 day later. (Id., ¶ 20.)

Regents disregards the 6/19/13 report to Dean Nesbitt. An employer’s failure to take action after receiving a report of discrimination, harassment or other conduct that the FEHA bars can amount to a retaliatory adverse employment action. (See Kelley v.

The Conco Companies (2011) 196 Cal.App.4th 191, 213.) Because Regents has not produced evidence barring an inference of retaliation based on Dean Nesbitt’s conduct, and because Regents has not otherwise explained why such conduct cannot constitute FEHA retaliation as a matter of law, it has not met its burden as moving party, and summary adjudication is denied.

The Sixth Cause for Whistleblower Retaliation under H&S Code § 1278.5

Summary adjudication is DENIED.

Section 1278.5 prohibits any hospital or entity operating a hospital from retaliating “in any manner” against an employee who presents a grievance, complaint, or report to the hospital or medical staff regarding the quality of patient care. (See Melamed v.

Cedars-Sinai Med. Ctr. (2017) 8 Cal.App.5th 1271, 1288.) Dr. Flores alleges Regents retaliated under § 1278.5 after she “reported concerns about BOYD’s unlawful activities and [PA] RANZENBACH’s poor performance.” (FAC, ¶ 60.)

Regents has not confronted Dr. Flores’ allegations. It tenders evidence that the decisions to separate her and Dr. Boyd, bar her from performing TAVR surgeries or on -call surgeries, and allow her contract to expire were based on nonretaliatory considerations. But the allegations describe a systematic effort to undermine and limit Dr. Flores’ surgical practice after she made other reports about safety concerns. Because Regents has not demonstrated that there is no triable issue with respect to this alleged effort, the burden never shifted to Dr. Flores, and summary adjudication is denied.

The Eighth Cause of Action for Whistleblower Retaliation under Gov. Code § 8547.10

Summary adjudication is DENIED.

Section 8547.10(c) protects University of California employees after they report threats

to the public or other “improper governmental activit[ies].” (See Gov’t Code § 8547.2

(e) [defining “improper governmental activity” and “protected disclosure” under the statute].) Dr. Flores predicates the eighth cause of action on reports she made during and after the alleged campaign of public humiliation. (See FAC, ¶ 74.) For reasons discussed previously, Regents has not produced evidence barring an inference of retaliation after Dr. Flores made her initial reports. For that reason, summary adjudication is denied.

The Third Cause of Action for Gender Discrimination under the FEHA

Summary adjudication is DENIED.

Based on the same three adverse employment actions tendered to support summary adjudication of Dr. Flores’ retaliation causes of action, Regents argues the gender discrimination cause of action should not be tried because there were legitimate, nondiscriminatory reasons for these actions. The court disagrees, again because Dr. Flores levels allegations that can be construed as another adverse employment action, namely the series of public humiliations, the undermining of her authority, and the removing her from surgeries. (See Featherstone v. Southern Calif. Permanente Med. Grp. (2017) 10 Cal.App.5th 1150, 1162 [“The protections against discrimination in the workplace…are ‘not limited to adverse employment actions that impose an economic detriment or inflict a tangible psychological injury upon an employee. [Citation.] Rather, FEHA ‘protects an employee against unlawful discrimination with respect … to … the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career’”].) Regents does not tender evidence demonstrating that such an adverse employment action was made for nondiscriminatory reasons. Hence, the burden never shifted to Dr. Flores, and summary adjudication is denied.

The Fourth Cause of Action for Gender Harassment under the FEHA

Summary adjudication is DENIED.

First, Regents argues it is entitled to summary adjudication because Dr. Flores’ harassment cause of action is based exclusively on inactionable personnel decisions. To support this argument, Regents recites Dr. Flores’ response to an interrogatory calling for “all CONDUCT [in detail] supporting YOUR claim of FEHA gender harassment.” (See UMF 29; Isvoranu Decl., Exh. F.) Dr. Flores answered:

Plaintiff was hired to perform surgical procedures in the TAVR program. Defendant prevented Plaintiff from performing these procedures in favor of her male colleagues. Also, Plaintiff noted serious safety issues, violations of medical ethics, and violations of hospital policy, Plaintiff complained about these things. As a result, Plaintiff’s male colleagues began to mock, humiliate and harass her. Plaintiff complained about this as well. Nothing substantive was done, and Plaintiff was made to remain working in the same environment of safety issues, harassment, and unlawful conditions.

Defendant retaliated against her by refusing to let her perform the duties she was assigned to, failing to assign work to her commensurate with her experience, and undermining her work as a surgeon by not allowing her

to practice her trade in favor of her male colleagues and harassers.

(Isvoranu Decl., Exh. F.) Regents goes on to cite cases holding that necessary personnel management decisions cannot constitute harassment. To be harassment, the conduct must consist of action outside the scope of job duties. (See Moving Memo. at 17:17-18:6.)

Regents’ evidence does not bar an inference of harassment. In her interrogatory response, Dr. Flores asserts that she was subject to mocking and humiliation, conduct which need not be viewed as necessary to personnel management. Granted, she also asserts that the mocking and humiliation was in “retaliation” for reports she made. But Regents does not argue that retaliation cannot also amount to harassment. As a result, Regents has not established that the harassment Dr. Flores describes is limited to legitimate personnel management decisions, and it is not entitled to summary adjudication on that basis.

In the alternative, Regents argues that it is undisputed the harassment Dr. Flores alleges was not sufficiently severe or pervasive for purposes of the FEHA. (See Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462, [“[A]n employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex”].) To support this argument, Regents cites deposition testimony in which Dr. Flores responds to questions about offensive, gender-based comments in the workplace. (See UMF 28.) Dr. Flores describes three comments that Dr. Young made, possibly in 2011. According to Dr. Flores, Dr. Young told her not to wear lipstick because she would not be taken seriously, not to wear high heels at work, and that she was hysterical like his mother.

Assuming the deposition testimony does not describe severe or pervasive harassment, summary adjudication is nonetheless denied because Regents has not demonstrated that the comments, when combined with the campaign of harassment and humiliation described in the FAC, cannot collectively be viewed as severe or pervasive. The separate statement does not cite evidence in which Dr. Young denies having engaged in the public humiliation of plaintiff. Similarly, the separate statement does not cite evidence explaining that any such humiliation was based on factors other than sex. As a result, Regents has not met its burden as moving party, and the burden never shifted to Dr. Flores to produce evidence of a triable issue.

The Seventh Cause of Action for Violation of Labor Code § 1050 et Seq.

Summary adjudication is GRANTED.

Labor Code § 1050 prohibits employers and others from making misrepresentations about discharged employees in an attempt to interfere with subsequent employment. According to Dr. Flores, Regents attempted to “shut her out of the medical field” in violation of § 1050. (FAC, ¶ 65.) She alleges she has been unable to find employment as a surgeon since 2014. (Id.)

Regents tenders evidence that its agents did not make misrepresentations to prevent Dr. Flores from obtaining new employment. (See UMF 27.) This evidence demonstrates the nonexistence of any triable issue and shifts the burden to Dr. Flores.

In opposition, Dr. Flores cites evidence that Dr. Young believed she was difficult to work with, and that he spoke with potential employees about her. (See Opp. Sep. Stmt., UMF 27.) In her view, this evidence supports an inference Dr. Young made misrepresentations in violation of § 1050. The court disagrees because there is no reason to believe Dr. Young made any misrepresentations simply because of his beliefs.

The only evidence Dr. Flores tenders to demonstrate that Dr. Young or any other agent of Regents actually made a misrepresentation is evidence to which Regents objects. (See Regents’ Objections 5-7.) The objections on grounds of hearsay and lack of foundation are sustained. As a result, there is no evidence of any misrepresentation, and summary adjudication is granted.

Evidentiary Objections

Dr. Flores’ Objection No. 5 is overruled.

Other than objections expressly ruled upon above, the court need not rule and does not rule on the parties’ objections to evidence. (See CCP § 437c(q).)

Disposition

Summary adjudication of the seventh cause of action is granted.

The balance of the motion is denied.

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