Case Number: BC646517 Hearing Date: June 07, 2018 Dept: 47

Rafaela Torres v. Kaiser Foundation Hospitals, et al.

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION (SECOND AMENDED COMPLAINT)

MOVING PARTY: Defendant Kaiser Foundation Hospitals

RESPONDING PARTY(S): Plaintiff Rafaela Torres

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that she was terminated based on her disabilities and was wrongfully denied caregiver leave.

Defendant Kaiser Foundation Hospitals moves for summary judgment or, in the alternative, summary adjudication as to the complaint.

TENTATIVE RULING:

Defendant Kaiser Foundation Hospital’s motion for summary judgment is GRANTED.

DISCUSSION:

Defendant’s Evidentiary Objections

Pursuant to CCP § 437c (q), the Court declines to rule on Defendant’s evidentiary objections, which are asserted against Plaintiff’s evidence which is not material to the disposition of this matter.

Motion For Summary Judgment

As discussed below, Defendant has demonstrated that it is entitled to judgment as to all causes of action. Accordingly, the motion for summary judgment is GRANTED.

Motion For Summary Adjudication

1. Issue No. 1: “The undisputed material facts establish that Hospitals is entitled to judgment as a matter of law on any FEHA claim by Torres arising from [any] alleged “unlawful act[s]” prior to January 15, 2015 or after January 15, 2016 because Torres can only base her FEHA claims on acts that occurred between January 15, 2015 and January 15, 2016.”

This issue seeks to adjudicate only a portion of various FEHA claims, i.e., that portion of the FEHA claims based on acts occurring outside the period of January 15, 2015 and January 15, 2016.

A motion for summary adjudication must dispose of an entire cause of action [CCP § 437c(f)(1)], unless certain procedures are followed prior to the bringing of the motion for summary adjudication [CCP § 437c(t)] which procedures were not followed here.

[T]here can be no summary adjudication of less than an entire cause of action. (Code Civ. Proc., § 437c, subd. (f)(1) [“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”].) Therefore, an order granting summary adjudication “to the extent” a cause of action rests on this or that premise is invalid unless the matter thus adjudicated is properly viewed as a distinct “cause of action” for purposes of the provision thus cited. If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.

McCaskey v. California State Automobile Assn. (2010) 189 Cal. App. 4th 947, 975.

This issue should have simply been presented as an undisputed material fact in connection with each FEHA cause of action. For example, Defendant should have presented evidence as to when Plaintiff filed her complaint with the DFEH, which would have limited the facts upon which she could base her FEHA claims under the exhaustion of administrative remedies doctrine. However, as framed, Issue No. 1 cannot be summarily adjudicated.

The motion for summary adjudication as to Issue No. 1 is DENIED.

2. Issue No. 2: “The undisputed material facts establish that Torres cannot establish a prima facie case of disability discrimination because she did not have a disability of which Hospitals were aware or which Hospitals perceived.”

Given the ruling on Issue No. 3 below, the Court deems Issue No. 2 to be MOOT.

3. Issue No. 3: “The undisputed material facts establish that Hospitals had legitimate non-discriminatory reasons for Torres’s termination and there is no evidence of pretext.”

Plaintiff alleges that she suffered physical disabilities of right shoulder injuries, chronic pain, and associated conditions. Complaint, ¶¶ 7, 8, 41, 42. Plaintiff also alleges that she suffered the mental disability of anxiety, depression and associated conditions. Id.

An employer moving for summary judgment on a FEHA cause of action may satisfy its initial burden of proving a cause of action has no merit by showing either that one or more elements of the prima facie case “is lacking, or that the adverse employment action was based on legitimate nondiscriminatory factors.” (Citations omitted.) Once the employer sets forth a nondiscriminatory reason for the decision, the burden shifts to the plaintiff to produce “‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual.” (Citations omitted.) “[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, at p. 361; see [*592] also Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097–1098 [38 Cal. Rptr. 3d 240] [if a defendant employer’s motion for summary judgment “relies in whole or in part on a showing of nondiscriminatory reasons for the [adverse employment action], the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the [adverse action]. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred”].)

Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591-592.

Defendant presents evidence that Plaintiff did not report for any of her scheduled shifts on January 26, January 27, January 28, January 29, January 31, February 1, February 3, February 4, February 5, February 6, February 9, February 10, February 11 and February 12, 2015. UF No. 8; Sanchez Decl., at ¶ 20 and Exh. A. Between this period, Plaintiff was not on an approved leave of absence. UF No. 9; Sansano Decl., at ¶¶ 6-14; Sanchez Decl. at ¶¶ 9-20; Exhs. B – G; Yaller Decl. at ¶¶ 3-11; Exhs. 13, 15, 16, 17 and 18 to Torres Depo and Torres Depo. at 215:19-23; 218:3-6; 218:11-219:3; 220:2-16. Between January 26 and February 12, 2015, Plaintiff did not present Hospitals with any report from a medical provider stating that she was sick or unable to work due to her own condition. UF No. 10; Sanchez Decl., ¶ 22; Sansano Decl. at ¶ 16; Yaller Decl. at ¶ 11; Torres Depo. at 156:11-17.

Defendants’ No Call/No Show policy states: “Any occurrence of No Call/No Show of three (3) consecutive days or more is considered job abandonment and will normally result in termination.” UF No. 11; Exhibit 12 to Torres Depo.; Torres Depo. at 100:13-16. Plaintiff understood that the No Call/No Show policy applied to Torres’ employment with Hospitals in 2015. UF No. 12; Torres Depo. at 100:13-24; Exh. G to Sanchez Decl. and ¶ 20; Exh. H to Yaller Decl., ¶ 12.

Sanchez and Sansano terminated Torres’ employment as of February 13, 2015 because Torres failed to report for her scheduled shifts on January 26 – 29, January 31, February 1, February 3 – 6, and February 9 – 12. UF No. 13; Sansano Decl., ¶¶ 15-17; Sanchez Decl. at ¶¶ 12-20; Exhs. B-G; Exhs. 19 and 20 to Torres Depo. at 121:18-122:1; 221:16-20; 222:12-20. Nobody told Plaintiff that her employment with Hospitals was terminated because of her alleged disabilities. UF No. 14; Torres Depo. at 122:2-4.

The foregoing evidence is sufficient to show that Plaintiff’s employment was terminated for the legitimate, non-discriminatory reason that she violated the No Call/No Show policy by failing to show up for her scheduled shifts from January 26 through February 12, 2015. Thus, the burden shifts to Plaintiff to demonstrate a triable issue of material fact that this reason is a pretext for intentional physical and/or mental disability discrimination.

Plaintiff does not dispute that she did not report for any of her scheduled shifts from January 26 through February 12, 2015. Opp. Fact No. 8. Plaintiff admits that Defendant denied her requests for time off in early 2015 because of operational needs, unfilled positions and too many people being out. See, e.g.., Opp. Fact No. 9 and supporting evidence. Plaintiff indicates that on January 21, 2015, she received a doctor’s note, placing her on medical leave from January 26, 2015 through February 8, 2015 because she “is the care giver for a person who . . [r]equires supervision/attendant care for illness.” Opp. Fact No. 9; Exh. I (erroneously identified as Exh. J in the opposing separate statement). When Sansano read the note, she told Sanchez that the note was “weird” and “not right,” partly because she “did not know who the note was written for . . if it was a neighbor, if it’s a human being.” Opp. Fact No. 9; Sansano Depo. at 157:19-22; 169:9-11. While Plaintiff correctly points out that the Caregiver Note indicates that it is a “person” who required Plaintiff’s care, the note is vague about the identity of the person who requires Plaintiff’s care for an illness. Plaintiff indicates that Plaintiff told Sanchez that her mother was ill in 2012, November of 2014 and January of 2015 (Sanchez Depo. 62:6-63:2), and Yaller admitted that Plaintiff to Plaintiff that needing to take care of her mother in Mexico was dying of pancreatic cancer qualifies as an extreme situation while would justify a No-Call/No-Show under Defendant’s policy (Opp. Fact No. 9; Exh. K; Yaller Depo. 116:15-24). Plaintiff also indicates that her daughter Arcelia Gomez told by an HR representative that Plaintiff should request California Employment Sick Leave Act (“CESLA a.k.a kin care), but Sanchez refused to put in any such request. Opp. Fact No. 9; Exh. M (Audio recording). Even if Sanchez acted in an insensitive manner in refusing to process Plaintiff’s request for CESLA leave or to take “life balance” hours, and instead demanding that Plaintiff return to work (Opp Fact No. 9 and supporting evidence), this is not evidence that Defendant acted with discriminatory intent against Plaintiff because of her physical and/or mental disability. Harsh or imprudent enforcement of policies, so long as enforced without discriminatory intent, does not violate FEHA:

The FEHA does “not guarantee employees ‘a stress-free working environment.’ ” (Wehunt v. R.W. Page Corp. (M.D.Ga. 2004) 352 F. Supp. 2d 1342, 1354.) “[The Act] does not take away an employer’s right to interpret its rules as it chooses, and to make determinations as it sees fit under those rules. ‘[The FEHA] addresses discrimination.’ … ‘[It] is not a shield against harsh treatment at the workplace.’ … Nor does the statute require the employer to have good cause for its decisions. The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason. … ‘While an employer’s judgment or course of action may seem poor or erroneous to outsiders, the relevant question is … whether the given reason was a pretext for illegal discrimination. The employer’s stated legitimate reason … does not have to be a reason that the judge or jurors would act on or approve.’” (Nix v. WLCY Radio/Rahall Communications (11th Cir. 1984) 738 F.2d 1181, 1187, citations & italics omitted; see Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 358; Adamson v. Multi Community Diversified Services (10th Cir. 2008) 514 F.3d 1136, 1153; McCollum v. Bolger (11th Cir. 1986) 794 F.2d 602, 610.)

Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344 (bold emphasis and underlining added).

Likewise, Plaintiff submits evidence that there was insufficient testimony or evidence that Sanchez or anyone else from Defendant called any on-call kitchen workers to see if they were available to work from January 26, 2015 through February 8, 2015 (Opp. Fact No. 9; Sanchez Depo. at 67:15-68:4, 81:8-25), and Sanchez’s deposition testimony in this action contradicts his testimony in the arbitration hearing as to the number of employees out from November 2014 through January of 2015 (Opp. Fact No. 9; Sanchez Depo. 65:20-66:7; Exh. I, page 61:10-65:21). Plaintiff’s AF Nos. 70 – 81 is that Defendant failed to follow its own “No-Call/No-Show” Policies and Practices by failing to document attempts to contact Plaintiff. However, this evidence is insufficient to raise a triable issue of material fact as to whether the proffered reason for Plaintiff’s termination was a pretext for intentional disability discrimination—lying is not prohibited under the FEHA:

We do not regard this as evidence that Employer has offered fundamentally different justifications for terminating Employee. (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 680 [111 Cal. Rptr. 3d 896].) At most, there is some inconsistency as to which of the stated reasons truly motivated Employer’s decision. Employee’s declaration does tend to undermine the first and third reasons stated by Forcht.

The remaining question is whether this factual discrepancy creates a material triable issue. As Employer points out, there must be more than inconsistent justifications for an employee’s termination to support an inference that the employer’s true motivation was discriminatory. Guz, supra, 24 Cal.4th 317 stated: “an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination. ([St. Mary’s Honor Center v. ]Hicks[ (1993)] 509 U.S. 502, 521 [125 L. Ed. 2d 407, 113 S. Ct. 2742].) Proof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. (Id., at p. 517 … .) Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions. (Id., at pp. 510–520 … .) Accordingly, the great weight of federal and California authority holds that an 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 360–361, fn. omitted.)n15

. . .

Logically, disbelief of an Employer’s stated reason for a termination gives rise to a compelling inference that the Employer had a different, [*1532] unstated motivation, but it does not, without more, reasonably give rise to an inference that the motivation was a prohibited one. As the United States Supreme Court said in the context of a trial, “The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff’s proffered reason … is correct.’ [Citation.] In other words, ‘[i]t is not enough … to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.’ ” (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 146–147 [147 L. Ed. 2d 105, 120 S. Ct. 2097], quoting St. Mary’s Honor Center v. Hicks, supra, 509 U.S. 502.) When an employer’s stated reasons are incredible or doubtful, a fact finder must look elsewhere for evidence of the employer’s true reasons.

As indicated above, Employee goes on to argue that he has established pretext through evidence showing that “all three reasons now articulated by” Employer are false. He claims to have “presented abundant evidence that he did cooperate at every turn with the investigation and that he never lied to Ms. Mistry.” This evidence, presumably, is his own declaration.

Employee would like to make this action depend on whether Employer’s stated reasons for terminating him were adequately substantiated, in other words, whether Employer actually had good cause to terminate him. However, that would not be the proper question for the fact finder even if Employer were required to have good cause for Employee’s termination.

As indicated above, one issue resolved in Cotran, supra, 17 Cal.4th 93 was: “When an employee hired under an implied agreement not to be dismissed except for ‘good cause’ is fired for misconduct and challenges the termination in court, what is the role of the jury in deciding whether misconduct occurred? Does it decide whether the acts that led to the decision to terminate happened? Or is its role to decide whether the employer had reasonable grounds for believing they happened and otherwise acted fairly?” (Id. at p. 95.) The court concluded that “it was error to instruct that Rollins could prevail only if the jury was satisfied sexual harassment actually occurred … . On retrial, the jury should be instructed … that the question critical to defendants’ liability is not whether plaintiff in fact sexually harassed other employees, but whether at the time the decision to terminate his employment was made, defendants, acting in good faith and following an investigation that was appropriate under the circumstances, had reasonable grounds for believing plaintiff had done so.” (Id. at pp. 108–109, italics added.) In other words, the question for the fact finder in examining a termination for good cause is whether the termination was objectively reasonable, not objectively justified.

McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1528-33 (bold emphasis and underlining added).

Further, Plaintiff cites a 7th Circuit case—Delesstine v. Ft. Wayne State Hosp. & Training Ctr. (7th Cir. 1982) 682 F.2d 130, 136—for the proposition that an employer’s failure to investigate the subject matter of Plaintiff’s underlying complaint is circumstantial evidence of pretext. This is contrary to the California authority cited above and does not have persuasive value in this instance. Plaintiff also makes an incorrect citation to Cotran v. Rollins Hudig Hall Intern., Inc. (1998) 17 Cal.4th[1] 93, but Cotran involved whether there was good cause in the context of implied employment contracts. Id. at 107-08. Summary judgment in a FEHA context was not presented in that decision.

Moreover, Plaintiff’s suggestion that temporal proximity gives rise to an inference of pretext is not persuasive. Plaintiff presents evidence that she was on medical leave for depression, anxiety and insomnia on July 11, 2013. Pltf’s Additional Facts (“AF”) Nos. 7, 8 and supporting evidence. Plaintiff also presents evidence that she was on medical leave on May 2014 to November 3, 2014 for her right shoulder disability and shoulder surgery. AFs Nos. 9-11 and supporting evidence. However, the temporal proximity between Plaintiff taking leave for her disabilities in 2013 and 2014, and her termination in February 2015 is not so immediate that, standing alone, it gives rise to an inference of pretext.

First, Arteaga contends he was terminated so soon after disclosing his “physical disability”—less than a week—that the timing, by itself, raises a dispute as to the company’s true motivation. Not so. Because the employee’s burden of establishing a prima facie case under McDonnell Douglas is fairly minimal, the temporal proximity between an employee’s disclosure of his symptoms and a subsequent termination may satisfy the causation requirement at the first step of the burden-shifting process. (Citations omitted.)

But temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination. (Citations omitted.) . . . It follows that temporal proximity, by itself, does not support a finding of pretext here. “Standing alone against Defendant’s strongly supported legitimate reason for terminating [plaintiff], temporal proximity does not amount to more than a scintilla of evidence of [discrimination].” (Padron v. BellSouth Telecommunications, Inc. (S.D.Fla. 2002) 196 F. Supp. 2d 1250, 1257, affd. mem. (11th Cir. 2003) 62 Fed.Appx. 317.)

This is not to say that temporal proximity is never relevant in the final step of the McDonnell Douglas test. In the classic situation where temporal proximity is a factor, an employee has worked for the same employer for several years, has a good or excellent performance record, and then, after engaging in some type of protected activity—disclosing a disability—is suddenly accused of serious performance problems, subjected to derogatory comments about the protected activity, and terminated. In those circumstances, temporal proximity, together with the other evidence, may be sufficient to establish pretext. (See, e.g., Shirley v. Chrysler First, Inc. (5th Cir. 1992) 970 F.2d 39, 42–44; Moss v. Bluecross, Blue Shield of Kansas, Inc. (D.Kan. 2008) 534 F. Supp. 2d 1190, 1202–1204.) But that is not this case.

. . . As stated by one court: “To prevent future litigants from relying on temporal proximity alone to establish [pretext], we once again attempt to clarify the issue. … ‘ [C]ases that accept mere temporal proximity … as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be “very close.”’ … [T]o be persuasive evidence, temporal proximity must be very close, and importantly … temporal proximity alone, when very close, can in some instances establish a prima facie case of [discrimination or] retaliation. … But we affirmatively reject the notion that temporal proximity standing alone can be sufficient proof of [pretext]. Such a rule would unnecessarily tie the hands of employers.

“Employers are sometimes forced to remove employees who are performing poorly, engaging in improper work conduct, or severely disrupting the workplace. … Precedent does not prevent [an employer] from removing such an employee simply because the employee [recently] engaged in a protected work activity … .” (Strong v. University Healthcare System, L.L.C., supra, 482 F.3d at p. 808, citations omitted; accord, Taylor v. Volunteers of Am. (2003) 153 Ohio App. 3d 698, 702 [2003 Ohio 4306, 795 N.E.2d 716, 719].)

Arteaga, supra, 163 Cal.App.4th at 353-54 (bold emphasis and underlining added).

Finally, the fact that Plaintiff was found by a Union Arbitration Panel not to have been termination for “just cause” (AF Nos. 84- 86) does not mean that the Arbitration Panel found that Plaintiff’s termination was motivated by animus which is prohibited under the FEHA, nor that Defendant’s decision to terminate Plaintiff’s employment was pretextual. As noted above, a termination without just cause would be an erroneous decision, but such errors are not prohibited under the FEHA. Arteaga, supra, 163 Cal.App.4th at 344.

Because Plaintiff has failed to meet her burden of demonstrating that a triable issue of material fact exists as to whether Defendant’s proffered legitimate, non-discriminatory (and non-retaliatory) reason was a pretext for intentional discrimination (or retaliation), the motion for summary adjudication as to Issue No. 3 re: the first cause of action for discrimination and retaliation on the basis of physical disability, and the second cause of action for discrimination and retaliation on the basis of mental disability is GRANTED.

4. Issue No. 4: “Torres cannot establish disability based harassment because the undisputed material facts establish that she was not subject to actionable harassment after January 15, 2015.”

This issue pertains to the first cause of action to the extent it is based upon physical disability harassment in violation of FEHA and the second cause of action to the extent is based upon mental disability harassment of FEHA.

Plaintiff filed her DFEH Complaint on January 15, 2016. Complaint, Exh. A. In that DFEH Complaint, she indicated that from May 2014 and continuing through at least February 13, 2015, she was harassed. However, Defendant has presented evidence that Plaintiff was not present in her workplace at the Hospitals between May 6 and November 2, 2014. UF No. 15; Torres Depo. at 97:16-98:11. This negates Plaintiff’s theory that she could have suffered workplace harassment during that time period.

Defendant also presents evidence that, other than attending one meeting on February 16, 2016, Plaintiff was not present in her workplace at Hospitals between January 24, 2015 and the date she filed her DFEH Charge on January 15, 2016. UF No. 16; Decl. of Miguel Sanchez, ¶¶ 20-21; Torres Depo. at 223:3-5. Between January 15, 2016 and her February 13, 2015 termination, Plaintiff was present in the workplace only on 7 workdays. UF No. 17; Sanchez Decl., ¶ 23. Plaintiff testified that Sanchez harassed her by telling her she should not be doing things of which her coworkers accused her, telling her that she could lose her job if she kept opening her mouth, counselling her about using appropriate language at work, letting Torres’ coworkers accuse her of not doing her job well, telling her to do her job well, denying her vacation request, reprimanding her, not paying attention when Plaintiff complained about someone bothering her, accusing her of gossiping, but she does not know when any of this alleged conduct occurred. UF No. 18; Torres Depo. at 40:3-43:6, 52:1-66:2, 235:10-236:8, 238:8-18, 239:3-240:2, 240:13-16. Plaintiff also testified that Sheila Sansano offended her by not giving her vacation and by telling her not to speak Spanish in the cafeteria. UF No. 21; Torres Depo. at 49:17-50:7. Torres testified that her coworker Vanessa and Sanchez harassed her when they accused her of a mistake during food service to a patient. UF No. 22; Torres Depo. at 331:19-332:15. Plaintiff testified that she felt harassed by nine coworkers who she contends were all lying when they complained to management about Plaintiffs’ use of inappropriate language. UF No. 23; Torres Depo. at 335:17-336:14.

[Plaintiff also testified to conduct which was outside the period for which she filed a DFEH Complaint, and thus cannot form the basis of her FEHA causes of action. See UF Nos. 19 and 20 (2013 incidents).]

The foregoing evidence is sufficient to establish that the harassment of which Plaintiff complains is not prohibited by the FEHA because it is necessary management activity and/or not harassment on the basis of a category protected under FEHA:

“[H]arassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.” (Reno v. Baird (1998) 18 Cal.4th 640, 646 [76 Cal. Rptr. 2d 499, 957 P.2d 1333].) “We conclude, therefore, that the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64–65 [53 Cal. Rptr. 2d 741].)

Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 879.

We conclude, therefore, that the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.

Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65.

Harassment is only prohibited under FEHA if it is “because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. . . .” Gov. Code, § 12940(j).

Defendant has met its initial burden of demonstrating that there was no violation of FEHA on the basis of physical or mental disability harassment. The burden shifts to Plaintiff to raise a triable issue of material fact.

In her opposing separate statement, Plaintiff does not cite any admissible evidence to raise a triable issue of material fact as to whether she suffered physical or mental disability harassment prohibited under FEHA. Simply disputing something in an opposing separate statement without citing any supporting evidence is insufficient.

“The party opposing the summary judgment must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment. [Citations.] To avoid summary judgment, admissible evidence presented to the trial court, not merely claims or theories, must reveal a triable, material factual issue. [Citation.] Moreover, the opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation.” (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10–11 [130 Cal. Rptr. 2d 263] (Wiz Technology).)

Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 635.

Moreover, Plaintiff’s AFs Nos. 46 – 64 that while Plaintiff was caring for her mother in Mexico, Defendants harassed her by threatening to terminate her for unauthorized absences is not actionable harassment because it constitutes necessary personnel management actions and also because it was not related to a category protected by FEHA, in this case, Plaintiff’s physical or mental disability.

Accordingly, the motion for summary adjudication as to Issue No. 4 is GRANTED as to the first cause of action to the extent it is based upon physical disability harassment in violation of FEHA and the second cause of action to the extent is based upon mental disability harassment of FEHA.

5. Issue No. 5: “Torres cannot establish disability based harassment because the undisputed material facts establish that she did not have a disability of which Hospitals was aware or which Hospitals perceived.”

Based on the ruling on Issue No. 4 above, the Court deems Issue No. 5 to be MOOT.

6. Issue No. 6: “The undisputed material facts establish that Torres cannot establish a prima facie case of retaliation because she did not engage in any protected activity under FEHA.”

Based on the ruling on Issue No. 8 below, the Court deems Issue No. 6 to be MOOT.

7. Issue No. 7: “The undisputed material facts establish that Torres cannot establish a prima facie case of retaliation because there is no connection between any alleged internal complaints and her termination.”

Based on the ruling on Issue No. 8 below, the Court deems Issue No. 7 to be MOOT.

8. Issue No. 8: “The undisputed material facts establish that Hospitals had legitimate non-retaliatory reasons for Torres’s termination and there is no evidence of pretext.”

This issue applies to the first cause of action for retaliation in violation of FEHA, second cause of action for retaliation in violation of FEHA and fourth cause of action for retaliation and wrongful termination in violation of public policy.

When a plaintiff alleges retaliatory employment termination either as a claim under the FEHA or as a claim for wrongful employment termination in violation of public policy, and the defendant seeks summary judgment, California follows the burden-shifting analysis of McDonnell Douglas Corp. v Green (1973) 411 U.S. 792 [36 L. Ed. 2d 668, 93 S. Ct. 1817] to determine whether there are triable issues of fact for resolution by a jury. (Citation omitted.)

Loggins v. Kaiser Permanente International (2007) 151 Cal.App.4th 1102, 1108-09 (bold emphasis added).

For the reasons discussed above re: Issue No. 3, which discussion is hereby incorporated by reference, no triable issue of material fact exists as to whether Plaintiff’s employment was motivated by retaliation in violation of FEHA or in violation of public policy. Defendant has offered a legitimate, non-retaliatory reason and Plaintiff has failed to raise a triable issue of material fact as to whether that reason is a pretext for retaliation.

The motion for summary adjudication as to Issue No. 8 re: the first cause of action for retaliation in violation of FEHA, second cause of action for retaliation in violation of FEHA and fourth cause of action for retaliation and wrongful termination in violation of public policy is GRANTED.

9. Issue No. 9: “The undisputed material facts establish that Torres cannot establish [a] prima facie case of CFRA interference or retaliation because she was not eligible for CFRA leave in January 2015.”

Gov. Code § 12945.2(a) provides

(a) Except as provided in subdivision (b), it shall be an unlawful employment practice for any employer, as defined in paragraph (2) of subdivision (c), to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave. The commission shall adopt a regulation specifying the elements of a reasonable request.

(Bold emphasis and underlining added.)

Plaintiff alleges that in January 2015, she requested CFRA leave to care for her terminally ill mother in Mexico. Complaint, ¶¶ 13 – 15. In order to qualify for such CFRA leave, Plaintiff would have to had worked at least 1,250 in the period from January 2014 to January 2015. Gov. Code § 12945.2(a).

Here, Plaintiff does not dispute that she had only worked 922.85 hours during the twelve-month period immediately preceding January 22, 2015. Opp. Fact No. 29. As such, it is undisputed that Plaintiff was not eligible for CFRA leave.

The motion for summary adjudication as to Issue No. 9 re: the third cause of action is GRANTED.

10. Issue No. 10: “The undisputed material facts establish that Hospitals had legitimate non-retaliatory reasons for Torres’s termination and there is no evidence of pretext.”

As Issue No. 10 relates to the third cause of action, it is MOOT based upon the ruling on Issue No. 9.

11. Issue No. 11: “Torres’ claim under Labor Code section 132a compensation claim is barred by the exclusive remedy of the Workers’ Compensation Act.”

Given the ruling on Issue No. 12, the Court deems Issue No. 11 to be MOOT

12. Issue No. 12: “The undisputed material facts establish that Torres did not make a workers’ compensation claim during her employment with Hospitals.”

Plaintiff does not dispute that she did not make any workers’ compensation claims during her employment with Defendant. See Opp. Fact No. 33. As such, the motion for summary adjudication as to Issue No. 12 re: Plaintiff’s fourth cause of action for retaliation and wrongful termination in violation of public policy based upon Plaintiff making a workers compensation claim (see Complaint, ¶ 92) is GRANTED.

13. Issue No. 13: “Hospitals is Entitled to Judgment as a Matter of Law on Torres’ Claim In Her Fourth Cause of Action that Hospitals Violated The Public Policy Embodied in FEHA.”

A wrongful termination in violation of public policy claim fails if it is based on the public policy set forth in a failed FEHA claim.

Acuna’s wrongful termination claim includes allegations that SDG&E engaged in unlawful retaliation prohibited by the FEHA. “[W]hen a plaintiff relies upon a statutory prohibition to support a common law cause of action for wrongful termination in violation of public policy, the common law claim is subject to statutory limitations affecting the nature and scope of the statutory prohibition … .” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 904 [66 Cal. Rptr. 2d 888, 941 P.2d 1157].) “In other words, the viability of [the] plaintiff’s tort claim is tethered to the meaning of the FEHA.” (Estes v. Monroe (2004) 120 Cal.App.4th 1347, 1355 [16 Cal. Rptr. 3d 616]; see Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [87 Cal. Rptr. 2d 487]; see also Romano, supra, 14 Cal.4th at p. 503.)

Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1420.

For the reasons discussed above, incorporated herein by reference, all of Plaintiff’s FEHA and Labor Code § 132a claims fail. Accordingly, the Plaintiff’s wrongful termination in violation of public policy claim also fails.

The motion for summary adjudication as to Issue No. 13 re: the fourth cause of action is GRANTED.

14. Issue No. 14: “Hospitals is Entitled to Judgment as a Matter of Law on Torres’ Fifth Cause of Action for Declaratory Relief Because Torres Cannot Establish The Violations Alleged in the First Through Fourth Causes of Action.”

The requirement that plaintiffs seeking declaratory relief allege “the existence of an actual, present controversy” (5 Witkin, Cal. Procedure, supra, Pleading, § 817, p. 273) would be illusory if a plaintiff could meet it simply by pointing to the very lawsuit in which he or she seeks that relief. Obviously, the requirement cannot be met in such a bootstrapping manner; “a request for declaratory relief will not create a cause of action that otherwise does not exist.” (Citation omitted.) Rather, “an actual, present controversy must be pleaded specifically” and “the facts of the respective claims concerning the [underlying] subject must be given.” (Citation omitted)

City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 80.

As discussed below, Plaintiff does not have any viable claims. As such, there is no actual, present controversy to support a declaratory relief cause of action.

The motion for summary adjudication as to Issue No. 14 re: the fifth cause of action is GRANTED.

15. Issue No. 15: “Hospitals Is Entitled To Judgment As A Matter of Law on Torres’ Claim For Punitive Damages.”

In that no causes of action are viable to support a claim for punitive damages, Issue No. 15 is MOOT.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: June 7, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] Not Cal.app.4th at cited by Plaintiff at Page 17:1 of the Opposition.