Filed 6/2/20 Vivanco v. Cedars-Sinai Medical Center CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

RAQUEL VIVANCO,

Plaintiff and Appellant,

v.

CEDARS-SINAI MEDICAL CENTER,

Defendant and Respondent.

B298577

(Los Angeles County

Super. Ct. No. BC686201)

APPEAL from a judgment of the Superior Court of Los Angeles County. Elizabeth R. Feffer, Judge. Affirmed.

The Ruttenberg Law Firm and Kenneth G. Ruttenberg for Plaintiff and Appellant.

Carothers Disante & Freudenberger, Dawn M. Irizarry, Marianne C. Koepf, and Carolina A. Schwalbach for Defendant and Respondent.

______________________________

Plaintiff and appellant Raquel Vivanco (Vivanco) appeals from the judgment entered after the trial court granted summary judgment in favor of defendant and respondent Cedars-Sinai Medical Center (Cedars-Sinai) in Vivanco’s action for disability discrimination. We affirm.

FACTUAL BACKGROUND

Employment with Cedars-Sinai

Vivanco was first employed by Cedars-Sinai as a registered nurse in 1997. At all relevant times, Vivanco worked in the newborn intensive care unit (NICU) and reported to associate director Selma Braziel (Braziel).

Work-Related Injury and Medical Leave

In May 2016, Vivanco fell in Cedars-Sinai’s parking lot and suffered physical injuries to her hand, wrist, elbow, shoulders, and knees. She was promptly placed on a medical leave of absence. She remained on medical leave until mid-January 2017. From mid-January 2017 to mid-April 2017, she was released to work on modified duty. In mid-April 2017, she was again placed on medical leave.

Vivanco met with her physician on June 30, 2017, and asked to be released back to work. After examining Vivanco, the physician cleared her to return, without restrictions, effective July 3, 2017.

From the time of her initial injury in May 2016 to the time she was released to return to work, no one from Cedars-Sinai discouraged Vivanco from taking medical leave.

Request for Additional Time Off to Travel

Vivanco called her supervisor, Braziel, on June 30, 2017, to inform her that she had been released to return to work without restrictions, effective July 3, 2017. Vivanco and Braziel met in person later that day. Vivanco requested that her start date be delayed by two weeks so that she could travel with her husband for reasons unrelated to her disability.

Braziel denied Vivanco’s request to take additional time off. According to Vivanco, Braziel stated: “‘You have taken enough time off already for your disability. I cannot give you more time. . . .’” When Vivanco explained that tickets had already been purchased for the trip, Braziel responded: “‘I don’t need to see your tickets.’ . . . ‘I cannot give you no [sic] more time. You have taken already enough time for your disability.’” Braziel, however, claimed her denial of Vivanco’s request was not related to Vivanco’s “prior health condition.” Rather, “[i]t was solely due to the fact that the NICU was very busy at the time of . . . Vivanco’s vacation request. Several other nurses had requested and [were] denied time off in July 2017 due to census and acuity.”

According to Braziel, she told Vivanco that she was to report to work on July 7, 2017. Vivanco disputes this. It is undisputed, however, that Braziel never authorized Vivanco to take additional time off for travel.

Some of Vivanco’s nursing certifications lapsed while she was on medical leave. Accordingly, on June 30, 2017, Braziel asked nurse Patti Rockney (Rockney) to assist Vivanco with scheduling classes to rectify this. Rockney contacted Vivanco—with Braziel copied—by e-mail on July 2, 2017, writing: “I understand you are to return on the [seventh] of this month.”

Trip to South America

Vivanco travelled to South America on July 2, 2017.

On July 5, 2017, while in South America, Vivanco scheduled an in-person appointment for July 7, 2017, with Cedars-Sinai’s employee health services to obtain medical clearance, which was a prerequisite to be enrolled in her certification classes. Although Vivanco’s return flight to Los Angeles was scheduled for July 13, 2017, “[i]t was [her] intent to fly back early from South America so that [she] could make” the appointment with employee health services on July 7, 2017. She “got sick and was unable” to return in time. Vivanco had not, however, booked an earlier return flight that would have allowed her to make the appointment, nor had she made any attempt to change her existing return flight. On the morning of July 7, 2017, Vivanco cancelled her appointment with employee health services and rescheduled it for July 14, 2017.

Vivanco and Braziel spoke by telephone on July 10, 2017. Braziel told Vivanco that she had missed a class on July 7, 2017, and needed to attend a class on the following day, July 11, 2017. Vivanco made no effort to return in time to make the class.

Vivanco returned to the United States on July 13, 2017.

Termination of Employment

When Vivanco returned to Cedars-Sinai on July 14, 2017, Braziel presented her with a letter terminating her employment, effective July 12, 2017.

In the letter, Braziel explained that she had denied Vivanco’s request for “an additional two weeks off for vacation” and had, instead, told her to start on July 7, 2017. Vivanco’s failure to report on that date “or notify management of [her] intention to be absent” violated Cedars-Sinai’s attendance policy. Braziel wrote of the “grave concern that despite [Vivanco’s] July 3, 2017 release to return to work, previous communication denying [her] time-off request, and a schedule beginning July 7, 2017, [Vivanco] intentionally disregarded instructions, violated the attendance policy, failed to return to work, and continue[d] to be on an unauthorized absence.”

PROCEDURAL BACKGROUND

Vivanco filed a complaint alleging a single cause of action for disability discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.). Cedars-Sinai moved for summary judgment or, in the alternative, summary adjudication, which Vivanco opposed.

After entertaining oral argument, the trial court granted summary judgment in favor of Cedars-Sinai. The court concluded that, based on the undisputed facts, (1) Vivanco “did not suffer from a disabling condition”; (2) her employment was terminated “for legitimate, non-discriminatory reasons”; and (3) she could not establish “discriminatory pretext[.]”

Judgment was entered, and this timely appeal ensued.

DISCUSSION

I. Relevant Law and Standard of Review

As relevant here, the FEHA prohibits an employer from terminating employment or discriminating “in compensation or in terms, conditions, or privileges of employment” because of an employee’s physical disability. (§ 12940, subd. (a).)

A plaintiff can prove a disparate treatment discrimination claim under FEHA by direct evidence. (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 550 (DeJung).) “Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption. Comments demonstrating discriminatory animus may be found to be direct evidence if there is evidence of a causal relationship between the comments and the adverse job action at issue. [Citation.]” (Ibid.)

Alternatively, when a plaintiff relies on circumstantial evidence, California courts apply a three-part burden-shifting test adopted from McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591 (Soria).)

Under the McDonnell Douglas test, at trial, the plaintiff bears the initial burden of proving a prima facie case of discrimination. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) For disability discrimination, this requires a showing that the plaintiff “(1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. [Citation.]” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.) If a prima facie case is established, the burden shifts to the employer to rebut the presumption of discrimination “by producing evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer discharges this burden, . . . [t]he 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.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214–215.)

The order of these showings is modified when the McDonnell Douglas test is applied, like here, in the context of a motion for summary judgment. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097.) “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.] 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.] ‘[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.’ [Citations.]” (Soria, supra, 5 Cal.App.5th at pp. 591–592.)

We review de novo an order granting a motion for summary judgment and construe the evidence in the light most favorable to the nonmoving party. (Soria, supra, 5 Cal.App.5th at p. 582.) We do not, however, consider “evidence set forth in the moving and opposition papers . . . to which objections have been made and sustained.” (Guz, supra, 24 Cal.4th at p. 334.)

II. No Direct Evidence of Discrimination

As a threshold matter (see Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 123), we address Vivanco’s argument that she presented direct evidence of discrimination.

Vivanco contends that two statements allegedly made by Braziel on June 30, 2017, when she denied Vivanco’s request to delay her return to work, constitute direct evidence of discrimination: (1) “‘You have taken enough time off already for your disability. I cannot give you more time. . . .’”; and (2) “‘I don’t need to see your tickets.’ . . . ‘I cannot give you no [sic] more time. You have taken already enough time for your disability.’” We disagree.

The adverse action at issue here is Vivanco’s termination—not Braziel’s denial of Vivanco’s request for personal leave unrelated to her disability. Nothing in these statements directly relates to the decision to terminate Vivanco’s employment, let alone proves “without inference or presumption” that the decision was motivated by discriminatory animus. (DeJung, supra, 169 Cal.App.4th at p. 550.)

Accordingly, we conclude that direct evidence of Cedars-Sinai’s discrimination is not present. To the extent Vivanco argues that Braziel’s statements constitute circumstantial evidence, we address this issue in the following section.

III. The Trial Court Properly Granted Cedars-Sinai’s Motion for Summary Judgment

Applying the McDonnell Douglas framework, we conclude that Cedars-Sinai’s motion for summary judgment was properly granted. Cedars-Sinai presented undisputed evidence of a legitimate, nondiscriminatory reason for terminating Vivanco’s employment, which Vivanco failed to establish was a pretext for discrimination.

A. Legitimate, Nondiscriminatory Reason for Termination

Cedars-Sinai had the burden on summary judgment of advancing a legitimate, nondiscriminatory reason for terminating Vivanco’s employment. (See Nakai v. Friendship House Assn. of American Indians, Inc. (2017) 15 Cal.App.5th 32, 39.) “A reason is ‘“legitimate”’ if it is ‘facially unrelated to prohibited bias, and which if true, would thus preclude a finding of discrimination.’ [Citation.]” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2.)

Cedars-Sinai met its burden. It presented undisputed evidence that Vivanco was cleared to return to work effective July 3, 2017; was explicitly denied authorization to take additional time off; was expected to return to work on July 7, 2017; travelled to South America on July 2, 2017; missed scheduled appointments at Cedars-Sinai on July 7 and 11, 2017; and did not return to work until July 14, 2017.

Vivanco’s failure to comply with her employer’s attendance policy and unauthorized leave were legitimate reasons for terminating her employment, unrelated to prohibited discrimination. (See Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1149 [among other reasons, employee “t[aking] an extended vacation during a busy period of work[] and return[ing] to work late from the vacation” were legitimate, nondiscriminatory reasons for termination]; Thompson v. Coca-Cola Co. (1st Cir. 2008) 522 F.3d 168, 177 [“failure to follow office procedure with regard to vacation leave” was legitimate, nondiscriminatory reason for termination].)

B. Insufficient Evidence of Pretext

The burden shifted to Vivanco “to produce ‘“substantial responsive evidence” that [Cedars-Sinai’s] showing was untrue or pretextual.’ [Citations.]” (Soria, supra, 5 Cal.App.5th at p. 591.) Vivanco could not satisfy her burden by “‘. . . simply show[ing] that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. [Citations.] Rather, 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,” [citation], and hence infer “that the employer did not act for the [the asserted] non-discriminatory reasons.” [Citations.]’ [Citations.]” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (Hersant).)

Vivanco failed to meet her burden.

First, we agree with the trial court that the statements allegedly made by Braziel on June 30, 2017, to the effect that Braziel could not grant Vivanco additional leave to travel because Vivanco had already taken too much time off because of her disability, are insufficient for a reasonable factfinder to infer that discriminatory animus motivated the decision to terminate Vivanco’s employment. Cedars-Sinai presented evidence that Vivanco’s leave request was denied for nondiscriminatory, operational reasons: The NICU was “very busy” at the time and other nurses’ requests for time off in July 2017 were also denied. Vivanco presented no evidence controverting these facts. Nor does the temporal proximity between the statements and Vivanco’s termination suggest a discriminatory motive sufficient to raise a triable issue of material fact as to pretext. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353 [“[T]emporal 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.]”].)

Second, Vivanco’s introduction of performance evaluations from April and July 2016 praising her “professionalism” and patient care does not raise an issue of material fact as to pretext because her termination was not related to her job performance. Rather, she was terminated because of issues related to job attendance.

Third, and finally, Vivanco contends that the reason proffered for her termination was factually incorrect. While Vivanco disputes that Braziel explicitly ordered her to report to work on July 7, 2017, she presented no evidence reasonably challenging Braziel’s belief that Vivanco was expected to report that day. Rather, the undisputed evidence shows that Vivanco was released to return to work effective July 3, 2017; that her request to take additional leave for reasons unrelated to her disability was denied; and that in an e-mail to Vivanco, to which Braziel was copied, nurse Rockney communicated her understanding that Vivanco would return to work on July 7, 2017. It is also undisputed that Braziel told Vivanco on July 10, 2017, that she had been expected at Cedars-Sinai on July 7, 2017, and that she was scheduled to attend a class there on July 11, 2017.

In light of the foregoing, we conclude that Vivanco did not “‘. . . demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in . . . .’” (Hersant, supra, 57 Cal.App.4th at p. 1005) Cedars-Sinai’s nondiscriminatory reason for terminating her employment to allow a reasonable factfinder to disbelieve it and infer a discriminatory motive. Accordingly, Cedars-Sinai was entitled to summary judgment in its favor.

DISPOSITION

The judgment is affirmed. Cedars-Sinai is entitled to its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J. ______________________, J.

LUI CHAVEZ