2016-00197603-CU-WT

Elouise Lamkin vs. Blue Cross of California

Nature of Proceeding: Motion for Summary Adjudication

Filed By: Smith, Philip J.

Defendant Anthem, Inc.’s, erroneously sued as The Anthem Companies of California, Inc. and Blue Cross of California (“Anthem”) motion for summary adjudication is

DENIED.

Facts

This is an employment discrimination action. Plaintiff Elouise Lamkin (“Plaintiff”) worked for Anthem as a Customer Service Representative from September 2012 until her termination on March 8, 2016. (UMF 1.) In March 2013, Plaintiff was diagnosed with breast cancer. (Clark Decl. Ex. A, Ex. 9.) She took an intermittent medical leave of absence to treat the breast cancer throughout 2013. (Clark Decl. Ex. A, Ex. 9.) In December 2013, Plaintiff was diagnosed with recurrent major depression. (Clark Decl. Ex. A, Ex. 10.) In January 2014, Plaintiff requested and was granted intermittent medical leave of absences through April 2014 for medical treatment. (Id.)

Plaintiff subsequently continued to work at Anthem but was absent on numerous workdays. In October 2015, and again in November 2015, Plaintiff requested medical leave due to her diabetes and inflammation of the liver, pancreas, and kidneys. (AUMF 43; Clark Decl. Ex. B, Exs. 19-20.) Plaintiff failed to provide the required certification with her requests, and her requests were denied by Anthem. (AUMF 44; Clark Decl. Ex. B, Exs. 19-20.)

On December 31, 2015, Anthem issued Plaintiff a written warning for accruing 181.61 hours of missed work – for a total of 25 missed work days (“incidents”) -within a 12 month period. (UMF 7.) On January 5, 2016, Anthem issued Plaintiff a written warning for accruing 6 incidents totaling 144 lost hours of work since March 31, 2015. (UMF 8.) Plaintiff signed the January 2016 written warning. (UMF 12.) On February 12, 2016, Anthem issued Plaintiff her final written warning for accruing 72 hours of missed work between January 28, 2016 and February 9, 2016. (UMF 13.) The February written warning stated that it “will be in effect for the next 90 days. If at any time during the warning period or thereafter you do not meet the attendance expectations, you do not make sufficient progress toward meeting the stated attendance expectations, or are not able to sustain the improvement, additional corrective action may be taken, up to and including termination of your employment.” (UMF 16.) Plaintiff signed the February written warning. (UMF 17.)

Plaintiff was then absent from work without authorization from on February 29 and March 1-4, 7-8. (UMF 20.) On March 8, Anthem terminated Plaintiff. (UMF 21.) On March 9, Plaintiff requested a leave of absence from Anthem. (Lamkin Decl. ¶9.) On March 11, Plaintiff learned that Anthem had previously terminated her employment on March 8. (Lamkin Decl. ¶10.)

Anthem’s Guidelines for Attendance Administration/Monitoring Policy (“Attendance Policy”) state that an employee such as Plaintiff is subject to corrective action once she accrued 48 lost hours of work or 6 incidents of unauthorized accidents within a 12 month period. (UMF 3.) If the employee then accrued an additional 3 incidents or 24 hours of lost work less than 6 months after the prior corrective action, the employee is subject to the next level of corrective action (UMF 4) and an accrual of another 3 incidents or 24 hours between 6-12 months later subjects the employee to the same level of corrective action previously issued. (UMF 5). The progressive stages of corrective action are counseling, verbal warning, written warning, final written warning, and termination. (UMF 6.)

Anthem moves for summary adjudication of four separate issues. The Court rules as follow.

Legal Standard

In evaluating a motion for summary adjudication the court engages in a three step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant’s motion for summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. ( Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, quoting C.C.P § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advance, Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, 25 Cal.4th at 853-855.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (C.C.P. § 437c(p); see, generally Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.) Plaintiff must produce “substantial responsive evidence

that the employer’s showing was untrue or pretextual.” (Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1105.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at 843.)

Summary adjudication requires disposition of an entire cause of action or claim for damages. (Code Civ. Proc. § 437c(f)(1); Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1256.)

Evidentiary Objections

Anthem’s evidentiary objections are overruled, as addressed below:

In ruling on Anthem’s objections, the Court notes specifically Anthem’s objection to a statement in the Declaration of Antia Lelaind, Anthem’s Human Resources Manager Sr. at the Rancho Cordova location from approximately August 2015 to September 2017. (Lelaind Obj. No. 4.) Ms. Lelaind attests that in approximately March 2016, “Mr. Ashby [the Director II of Operations for Anthem at its Rancho Cordova location] made it clear that he had become annoyed with Ms. Lamkin’s repeated need for medical leave, and had already discussed his decision to terminate Ms. Lamkin with Jill Souza, Ms. Lamkin’s manager.” (Lelaind Decl. ¶8.) Anthem objects on the grounds that this statement (1) lacks foundation, (2) is hearsay, (3) is inadmissible lay opinion, (4) is inadmissible opinion or perception regarding another’s state of mind, and (5) is irrelevant speculation. The Court overrules these objections. The statement has foundation, as Ms. Lelaind attests that she was the Human Resources Manager at the same location as Mr. Ashby at the relevant time. The statement is not inadmissible lay opinion or speculation, as it is Ms. Lelaind’s opinion rationally based on her perception of Mr. Ashby, which is admissible. (Cal. Evid. Code §800.) Moreoever, Ms. Lelaind’s statement that Mr. Ashby “had become annoyed with Ms. Lamkin’s repeated need for medical leave” is not an out of court statement, and thus does not constitute hearsay. Even if the Court did view this as hearsay, it would qualify as an exception under California Evidence Code §1250(a)(2) [“evidence of a statement of the declarant’s then existing state of mind, emotion . . is not made inadmissible by the hearsay rule when .

. . the evidence is offered to prove or explain acts or conduct of the declarant.”] Finally, the grounds for the objection seem to be applicable in a piecemeal fashion to the entire quote, and thus are procedurally improper. (CRC Rule 3.1354(b) [“All written objections to evidence must . . . (3) Quote or set forth the objectionable statement or material; and (4) State the grounds for each objection to that statement or material.”])

Plaintiff’s evidentiary objection nos. 2, 3, and 9 to the Declaration of Ivan Ashby are sustained as improper legal conclusions. Objection nos. 2, 4, and 6 to the Declaration of Jill Souza are sustained as improper legal conclusions. The remaining objections are overruled.

Issue 1: Plaintiff’s fourth cause of action for Retaliation in Violation of California’s Fair Employment and Housing Act (“FEHA”) is time-barred to the extent it is predicated upon an alleged write-up Plaintiff received in 2014.

The motion is denied. Plaintiff alleges that Anthem retaliated against her in part because it issued her a write-up in 2014. Anthem argues that, because Plaintiff filed her complaint for retaliation in violation of FEHA in June 2016, more than one year

after the retaliatory act, the claim is time-barred. (Cal. Gov. Code §12960.)

In support of this motion, Anthem cites to Plaintiff’s deposition testimony, in which she states that she believes Anthem’s write up against Plaintiff in 2014 was a retaliatory act. (UMF 24.) In opposition, Plaintiff cites to her deposition testimony in which she states also that Anthem’s termination of Plaintiff was a retaliatory act. (Clark Decl. Ex. B at 225:12-15.) Plaintiff was terminated on March 8, 2016 (UMF 21) and obtained her Right to Sue from the DFEH on June 16, 2016 (UMF 23). She filed her complaint shortly thereafter. Accordingly, Plaintiff alleges Anthem’s retaliatory act of termination occurred within the time period allotted by the statute, and her FEHA retaliation claim is not time barred.

Although Plaintiff effectively concedes in her opposition that the 2014 write up is time barred, the Court must nonetheless deny the motion because Anthem asks the Court to rule that a portion of the FEHA cause of action is time-barred – i.e., the portion of the claim based on the 2014 write-up. This request is procedurally improper. CCP §437c (f)(1) states that “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.”

As stated above, Plaintiff’s retaliation claim is also based on the March 2016 termination, which is timely. Accordingly, as the FEHA retaliation claim is not wholly time-barred, the motion cannot be granted.

Issue 2: Plaintiff’s fourth cause of action for Retaliation in Violation of FEHA fails as a matter of law because she cannot prove that Anthem’s legitimate, non-retaliatory reasons for its adverse employment actions were pretextual.

Next, Anthem argues that even if Plaintiff can establish a prima facie case of retaliation under FEHA, she cannot show that Anthem’s legitimate, non-retaliatory reasons for its adverse actions were pretextual. Anthem contends that its legitimate, non-retaliatory reason for terminating Plaintiff was Plaintiff’s multiple instances of unauthorized absences, as set forth in detail above. Anthem contends that Plaintiff’s repeated unauthorized absences and failure to improve her attendance despite receiving multiple warning resulted in Plaintiff’s termination. (UMF 7-21.) Anthem further asserts that Plaintiff cannot establish pretext because she provides no substantive evidence to support her claim that Ivan Ashby, the Director of Operations at the Rancho Cordova facility where she was employed, terminated her as intentional retaliation for engaging in protected activity. (UMF 26-27.)

Under the FEHA, it is unlawful ‘[f]or any employer … to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [the FEHA] or because the person has filed a complaint … under this [Act].’ (Gov. Code, § 12940, subd. (h)).

Plaintiff alleges she was retaliated against (i.e., terminated) for exercising her rights to request reasonable accommodations and/or medical leave under FEHA.

To establish a prima facie case of retaliation under FEHA, a plaintiff must show: (1) she engaged in a “protected activity;” (2) the employer subjected the employee to an adverse employment action; and (3) a causal link existed between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th

1028, 1042.) Once an employee establishes a prima facie case, the employer is required to offer a legitimate, non-retaliatory reason for the adverse employment action. (Ibid.) If the employer produces a legitimate reason for the adverse employment action, “the presumption of retaliation drops out of the picture and the burden shifts back to the employee to prove intentional retaliation.” (Ibid.)

Plaintiff’s subjective beliefs in an employment discrimination case do not create a genuine issue of fact; Plaintiff’s evidence must relate to the motivation of the decision makers to prove, by non-speculative evidence, an actual causal link between prohibited motivation and the failure to hire [adverse action].

The Court finds that Anthem has met its burden to show that it had a legitimate, non-retaliatory reason to fire Plaintiff due to her undisputed number of unauthorized absences and failure to resolve her attendance issues despite multiple warnings. In opposition, Plaintiff submits evidence in an effort to establish that this purportedly legitimate reason was pretextual.

Specifically, Plaintiff cites to a declaration from Antia Lelaind, Anthem’s Human Resources Manager Sr. at the Rancho Cordova location from approximately August 2015 to September 2017. Ms. Lelaind attests that in approximately March 2016, “Ivan Ashby notified me of his intent to terminate Elouise Lamkin. Mr. Ashby made it clear that he had become annoyed with Ms. Lamkin’s repeated need for medical leave, and had already discussed his decision to terminate Ms. Lamkin with Jill Souza, Ms. Lamkin’s manager.” (Lelaind Decl. ¶8.) Ms. Lelaind further attested that during her employment with Anthem, she observed that “Mr. Ashby had the final decision making authority regarding all discipline and termination of employees at the Rancho Cordova location. I also observed Ivan Ashby set, modify and alter company policies and procedures, deviate from existing company policies and procedures, use discretion in his application of company policies and procedures, and not enforce the company policies and procedures equally amongst all employees at the Rancho Cordova location.” (Id. ¶9.)

To avoid summary judgment, an employee claiming discrimination or retaliation must produce “substantial responsive evidence that the employer’s showing was untrue or pretextual” thereby raising at least an inference of discrimination or retaliation. ( Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) “The plaintiff may establish pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. [citations omitted].” ( Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 140.) Circumstantial evidence of ” ‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate” on an improper basis. ( Morgan v. Regents of University of California (2001) 88 Cal. App. 4th 52, 69. [citations omitted).) Pretext may be inferred from the timing of the decision, the identity of the decisionmaker, or by the employee’s job performance before the contested adverse action. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215.)

Here, Plaintiff requested medical leave in October 2015 and again in November 2015, and both requests were denied, though it appears the denial was due to Plaintiff’s failure to submit all the required documentation. Regardless, Anthem was aware that Plaintiff had requested leave on both occasions. Plaintiff then missed numerous days of work, was written up multiple times for her attendance issues, and was ultimately

fired in March 2016 by Mr. Ashby. Immediately before she was fired, Ms. Lelaind testifies that “Mr. Ashby made it clear that he had become annoyed with Ms. Lamkin’s repeated need for medical leave and had already discussed his decision to terminate Ms. Lamkin with Jill Souza.” (Lelaind Decl. ¶8.) Ms. Leilaind further testified that Mr. Ashby did “not enforce the company policies and procedures equally amongst all employees at the Rancho Cordova location.” (Id. ¶9.) This evidence, taken together, is sufficient to raise a question of fact as to whether Plaintiff’s requests to take medical leave related to her disability motivated her termination. Accordingly, the motion is denied.

Issue 3: Plaintiff’s seventh cause of action for Retaliation in Violation of CFRA fails as a matter of law because she cannot prove that Anthem’s legitimate, non-retaliatory reasons for its adverse employment actions were pretextual.

A plaintiff can establish a prima facie case of retaliation in violation of the CFRA by showing the following: (1) the defendant was a covered employer; (2) the plaintiff was eligible for CFRA leave; (3) the plaintiff exercised his or her right to take a qualifying leave; and (4) the plaintiff suffered an adverse employment action because he or she exercised the right to take CFRA leave. Rogers v. County of Los Angeles (2011) 198 Cal. App. 4th 480, 491

The same three-step, burden shifting analysis discussed in connection with Plaintiff’s FEHA retaliation claim applies to Plaintiff’s California’s Family Rights Act (“CFRA”) retaliation claim. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 885.) Accordingly, once an employee establishes a prima facie case, the burden shifts to the employer to present legitimate reasons for the adverse employment action. (Ibid.) If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation “drops out of the picture,” and the burden shifts back to the employee to prove intentional retaliation. (Ibid.)

Plaintiff alleges that Anthem violated the CFRA and retaliated against her following her medical leave by terminating her for taking protected leave. As the factual and legal analysis are effectively the same as that in Plaintiff’s FEHA retaliation claim, the parties submit largely the same evidence for the Court’s consideration.

As with the Court’s FEHA analysis, the Court finds that Anthem has met its burden to show a legitimate, non-retaliatory reason for Plaintiff’s termination; i.e., Plaintiff’s numerous unauthorized absences. However, Plaintiff has raised a triable issue of material fact as to whether this reason is pretextual, through the timing of the termination and Ms. Lelaind’s declaration testimony. Accordingly, summary adjudication is denied here as well.

Issue 4: Plaintiff’s claim for punitive damages fails as a matter of law because she cannot show by clear and convincing evidence that any officer, director or managing agent of Anthem engaged in, authorized, or ratified any malicious, oppressive, or fraudulent conduct.

Anthem argues that it is entitled to summary adjudication of the punitive damages claim against it because Plaintiff cannot establish by clear and convincing evidence that any Anthem officer, director or managing agent acted fraudulently or with oppression or malice pursuant to CC § 3294(b). In order to satisfy its initial burden of production, Anthem is required to produce evidence requiring a reasonable trier of fact

not to find, by a clear and convincing standard of proof, that the Anthem employees alleged by Plaintiff – in this case Jill Souza, and/or Ivan Ashby – were officers, directors or managing agents. (See Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 366; CC § 3294(a).)

The Court notes that Plaintiff’s opposition solely argues that only Mr. Ashby (and not Ms. Souza) is a managing agent.

“Managing agent” under Civil Code § 3294(b) means “only those corporate employees who exercise substantial independent authority and judgment in their corporate decision making so that their decisions ultimately determine corporate policy.” (White v. Ultramar Inc. (1999) 21 Cal.4th 563, 566-67.) “The scope of a corporate employee’s discretion and authority under our test is a question of fact for decision on a case-by-case basis.” (Id.) [“[P]rincipal liability for punitive damages [does] not depend on employees’ managerial level, but on the extent to which they exercise substantial discretionary authority over decisions that ultimately determine corporate policy”] [brackets added].) The authority must influence formal corporate policies affecting a substantial portion of the business, and thus must be broad enough to support punishing the corporation itself. (See Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 714-715.)

In an attempt to meet its burden, Anthem has produced declarations from Mr. Ashby and his subordinate, Ms. Souza, which contain assertions that the employees are not officers or directors and have no substantial discretionary authority over decisions determining Anthem’s policies. (See UMF 35-38; Souza Decl., ¶ 2; Ashby Decl., ¶¶ 2-3.) The declarations contain additional assertions that the employees are merely authorized to enforce existing policies. (Id.) Mr. Ashby also specifically attests that he oversees approximately 267 employees working in Customer Care, and that his responsibilities are limited to those employees at the Rancho Cordova location. (Ashby Decl. ¶¶2, 3.) He further attests that he has participated in Anthem’s negotiations with the Office and Professional Employees International Union, Local 29, AFL-CIO to execute a collective bargaining agreement, but that his “participation in those negotiations ultimately did not determine the terms of any collective bargaining agreement between Anthem and Local 29.” (Ashby Decl. ¶2.)

The Court finds that Anthem has not met its initial burden. To the extent Mr. Ashby declares that he has no substantial discretionary authority over decisions determining corporate policy, this is exactly the type of evidence that the Davis court held was insufficient to demonstrate the nonexistence of a triable issue of material fact, as it simply consisted of legal conclusions and not substantive evidence. (See Davis, 220 Cal.App.4th at 369-370 [“Preedy’s declaration did not contain a sufficient description of his job duties and responsibilities and the nature and extent of his authority and discretion as the Project’s manager, as well as his exercise of that authority and discretion, to support a reasonable inference that he did not ‘exercise[] substantial discretionary authority over [significant] aspects of [Kiewit’s] business'”] [brackets and italics in original] [citation omitted].)

Although Mr. Ashby’s declaration does contain some specifics regarding his job description that go beyond the legal conclusions found to be insufficient in Davis, those descriptions, cited above, do not establish conclusively that Mr. Ashby does not possess substantial independent authorize and judgment such that his decisions do not determine corporate policy.

Moreover, even if Anthem had met its burden, Plaintiff provides evidencing raising a question of material fact as to whether Mr. Ashy is a managing agent. Specifically, she provides a declaration from Anthem’s HR manager, Ms. Lelaind, who stated that during her employment with Anthem, she observed that “Mr. Ashby had the final decision making authority regarding all discipline and termination of employees at the Rancho Cordova location. I also observed Ivan Ashby set, modify and alter company policies and procedures, deviate from existing company policies and procedures, use discretion in his application of company policies and procedures, and not enforce the company policies and procedures equally amongst all employees at the Rancho Cordova location.” (Id. ¶9.) Moreover, Plaintiff points to testimony from Mr. Ashby’s deposition in which he states that he was “responsible to lead an operation that’s made up of customer-member services and some provider service teams” and that he had to approve all terminations of his staff at the Rancho Cordova facility. (AUMF 56; Clark Dec. Ex. D at 17:23-25.)

Finally, and fatal to Anthem’s adjudication motion on this issue, defendant’s Separate Statement for summary adjudication of the punitive damages claim, reads in pertinent part: “Defendant incorporates by reference UF Nos. 1-30, along with the associated supporting evidence.”

If there is any issue of fact as to any of undisputed material facts, the motion must be denied. As noted In Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4″‘ 243,252, a party moving for summary judgment concedes the materiality of each fact enumerated in its separate statement and, as a consequence, cannot argue that the motion should be granted because one or more of these facts are not truly material. As the Nazir court noted, the facts enumerated in a moving separate statement have a due-process dimension in that they define for the opposing party the facts which, if disputed with admissible evidence, result in the motion being denied. (178 Cal.App.4th at 2521 [citation omitted].) In reliance on the universe of facts in the moving separate statement, a party opposing a summary judgment motion is entitled to stop working on the opposition once (s)he has produced admissible evidence demonstrating that a single fact presents a triable issue.

Here, the Court has already found that UMF no. 21, applicable to the FEHA and CFRA causes of action, is disputed.

Therefore, moving counsel may not rely only on their assertion that Plaintiff fails to adequately dispute their assertions in Mr. Ashby’s declaration.

Based on the foregoing, the motion is denied.