2017-00215042-CU-CR

Veronica Neal vs. Sutter Medical Foundation

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

Filed By: Davis, Jahmal T.

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

The motion of Defendants Sutter Valley Hospitals (Sutter) and Loretta Franklin (Franklin) (collectively “Defendants”) for summary judgment or, in the alternative, summary adjudication of issues is DENIED.

Defendants’ request for judicial notice of the original complaint is DENIED as irrelevant.

Overview

This case presents an employment dispute. The plaintiff is Veronica Neal (Neal). In the first amended complaint (FAC), Neal alleges that she is a registered nurse in her 60’s. She also alleges that she is disabled under the FEHA but can perform nursing duties with reasonable accommodation. Neal serves Sutter as an RN Case Manager. Franklin has supervised Neal since 2014. In both 2016 and 2017, Neal took leave from work while she underwent surgery.

According to Neal, Defendants have harassed and discriminated against her based on her disability, which stems from several muscle-skeletal conditions. They have also harassed and discriminated against her based on age. She alleges that the harassment includes micro-managing her; summoning her for frequent one-on-one meetings to threaten discipline and berate her; making comments about her age and disability; falsely accusing her of misconduct; scrutinizing her bathroom breaks; criticizing her for arriving at work a few minutes early; selectively applying policies to force her to retire; allowing other employees to slack off while she is assigned those employees’ work; and threatening her with adverse actions for her use of the Family Medical Leave Act (FMLA). She alleges that the discrimination includes giving her substandard evaluations; assigning her an excessive caseload; denying promotions; excluding her from meetings; denying her accommodations; denying her overtime rights; denying her an ergonomic evaluation; failing to cover her caseload while she is off work even though younger and non-disabled employees receive coverage; denying her the alternative work schedules that other nurses receive; and denying her light duty despite a doctor’s note.

Based on these allegations, Neal had pleaded causes of action against one or both Defendants for harassment based on age, harassment based on disability, discrimination based on age, discrimination based on disability, failure to accommodate, and failure to engage in the interactive process. Defendants move for summary adjudication of each of these causes of action and, therefore, for summary judgment.

Discussion

The Third and Fourth Causes of Action against Sutter for Age-Based Discrimination and Disability Discrimination [Disparate Treatment under the FEHA]

Summary adjudication is DENIED.

Sutter argues first that it is entitled to summary adjudication of Neal’s discrimination causes of action because Neal never suffered an adverse employment action. To the extent Neal’s allegations and discovery responses posit conduct that could qualify as an adverse employment action, Sutter asserts that no such conduct occurred. Sutter

argues that other tendered conduct cannot constitute an adverse employment action as a matter of law.

Acts that Sutter concedes could qualify as adverse employment actions under the FEHA include denying Neal overtime that other employees received. To demonstrate that no such denial occurred, Sutter tenders UMF 15, which reads, “Plaintiff testified that Loretta Franklin originally denied her request to work overtime hours, but Cassandra Hutchinson later approved the request.” The testimony cited to support UMF 15, however, does not bar an inference that Neal was denied overtime.

The testimony in question appears in pages 379 through 383 of Neal’s deposition transcript. The court must draw all reasonable inferences in Neal’s favor at this juncture. Bearing this in mind, the testimony may be read to establish that (a) Neal initially requested overtime in or before March 2016, but Franklin denied the request,

(b) then Neal was on medical leave through September 2016, and she requested overtime again at some point after she returned, (c) Franklin denied the second request as well, and (d) Neal raised the overtime issue with Franklin’s supervisor, Hutchinson, and in late 2017 to early 2018, Hutchinson granted Neal’s overtime request. This timeline does not bar a reasonable inference that Neal was denied overtime before Hutchinson took action in late 2017 / early 2018.

With its reply papers, Sutter tenders new evidence meant to show that, even if denied overtime presents a triable issue on the question whether an adverse employment action occurred, the issue is immaterial because Neal admitted she does not know whether that denial was motivated by her age or disability. (See Supp. Davis Decl., Exh. G at 384:18-25.) In other words, Sutter argues that Neal cannot establish any causal nexus between the denial of overtime and her characteristics protected under the FEHA. The court rejects this argument.

Evidence negating causation should have been filed and served with the moving papers. As discussed below, Sutter raised and addressed causation in its moving papers. It also raised the denial of overtime in the moving papers. Yet, Sutter purports to raise for the first time in the reply–without affording Neal a fair opportunity to respond–evidence that her age and disability did not cause any denial of overtime. The court disregards this new evidence as untimely.

But even if the denial of overtime did not present any triable issue, the existence of an adverse employment more generally would still have to be tried. Sutter argues that most of the actions Neal asserts are adverse employment actions do not qualify as such as a matter of law. Hence, Sutter dismisses Neal’s allegations that (a) she was assigned a disproportionate number of patients, (b) she was not allowed schedule variances that other nurses were allowed, (c) she was excluded from staff meetings,

(d) she was required to cover other nurses’ schedules during vacations, whereas she received no such coverage, (e) her work was “overly scrutinized,” and (f) she received threats of discipline that other nurses did not receive. (See UMF 6; Moving Memo. at 16:10-23.) In Sutter’s view, such acts cannot be viewed as triggering the “substantial adverse change in the terms and conditions” of employment required to constitute an adverse employment action under the FEHA. (See Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.) Sutter also tenders undisputed evidence that it never demoted, terminated or suspended Neal, that it never reduced her compensation, and that it never denied her promotional opportunities. (See UMF 8, 12, 14, 17.) Despite Sutter’s arguments and undisputed evidence, the question

whether Neal suffered an adverse employment action must be tried.

An adverse employment action under the FEHA denotes a material, adverse change in terms and conditions of employment, not merely “ultimate” actions such as terminations or demotions. (See Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1387-1388.) Individual acts that might not adversely impact terms and conditions of employment on their own can amount to an adverse employment action when taken together. (See Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1054-1055.)

Among the acts that Neal contends yielded an adverse employment action is a disproportionately heavy workload. In this regard, Sutter has produced evidence that, at some point, Franklin consulted Neal and other case managers and redistributed work in a way meant to be equitable. (See UMF 13.) There is also evidence that in February 2017, Neal indicated her workload was heavy but manageable. (See UMF 19.) This evidence does not bar a reasonable inference that, during the relevant period, Neal was required to endure a disproportionate workload which, along with other circumstances, made it materially more difficult for her to perform her job.

In this regard, Sutter does not cite evidence shedding light on the additional work, if any, Neal was required to assume when other nurses took vacations. Depending on staffing levels and the frequency with which vacations were taken, covering vacations could conceivably take a heavy toll. Furthermore, although Neal admitted that the workload was heavy but manageable in February 2017, her discrimination causes of action are not limited to that month. Hence, evidence of her workload in February 2017 does not bar an inference that her workload was consistently heavy and unmanageable at other times.

Nor has Sutter fleshed out the impact of alleged exclusions from staff meetings, threats of discipline, and the other acts on which Neal relies. If Neal was repeatedly excluded from staff meetings, why couldn’t that have negatively impacted her ability to perform her job? Without more information about the alleged acts, the court cannot rule out that they, when coupled with an unduly heavy workload, materially and adversely affected Neal’s ability to do her job. In short, although Neal does not rely on the adverse employment actions typically raised in a FEHA case, the evidence does not bar an inference that she suffered an adverse employment action during the relevant period.

In the alternative, Sutter argues that Neal’s discrimination causes of action should be summarily adjudicated because there is no causal nexus between an adverse employment action, on the one hand, and Neal’s age or disability, on the other. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [protected characteristic must have substantially motivated the adverse employment action].) Sutter’s moving memorandum contains virtually no analysis on the issue of causation. The Separate Statement does contain a section directed at causation. In that section, Sutter simply reincorporates all the material facts (UMF 1-20) tendered to support its argument that no adverse employment action occurred. The facts that arguably bear upon the question of causation read, respectively:

Plaintiff describes her current rapport with Loretta Franklin as “a good rapport for manager and employee.”

Loretta Franklin prepared Plaintiff’s performance review for the period June ‘2016 through May 2017, and she gave Plaintiff an overall rating of “strong performer,” and Plaintiff has no objection to this rating.

Plaintiff admits that when Loretta Franklin made the case assignments for the Case Managers, Ms. Franklin first met with each Case Manager to see how they felt about their caseloads and Ms. Franklin redistributed the work in a way that each Case Manager would have an evenly balanced patient mix.

Plaintiff admits that Loretta Franklin encouraged Plaintiff to seek FMLA leave, but Sutter’s Disability Management Coordinator confirmed that Plaintiff was not eligible for FMLA.

(UMF 4, 10, 13, 16.) Whatever inferences these facts raise, they do not preclude inferences that age and disability substantially motivated the specific adverse employment actions alleged. That Neal and Franklin may have a “good rapport” presently does not preclude an inference that age and disability motivated Franklin to saddle Neal with vacationing nurses’ schedules or exclude her from staff meetings. The burden was on Sutter as moving party to demonstrate the nonexistence of any triable issue as to causation, and Sutter failed in that regard. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286 [it is rarely appropriate to grant summary judgment based on intent or motive in an employment case].) Consequently, the burden to produce evidence never shifted to Neal, and summary adjudication is denied.

The Sixth Cause of Action against Sutter for Failure to Engage in the Interactive Process

Summary adjudication is DENIED.

When an employee requests accommodation, the FEHA requires a covered employer to engage the employee timely in a good-faith interactive process to determine whether accommodation can be made. (See Gov’t Code § 12960(n).) In a January 2018 response to a special interrogatory calling for facts supporting the sixth cause of action, Neal identified Franklin’s “refus[al] to discuss the ergonomic evaluation prepared by Bill Spalder,” Franklin’s “refus[al] to discuss whether plaintiff could work with a 4 hour typing restriction,” and Franklin’s failure to meet “with plaintiff to discuss these subjects.” (See Davis Decl., Exhs. E, F.) Sutter argues that Franklin did not refuse to discuss any accommodation.

With respect to the purported refusal to discuss the ergonomic evaluation Neal received, it is undisputed that (1) “Franklin did not refuse to respond to Plaintiff’s request for ergonomic workstation evaluation,” and (2) “an ergonomic workstation evaluation was performed for [Neal] in December 2016, and…she was provided with a new mouse as a result of the evaluation.” (See UMF 30, 25.)

One issue that arose when Neal received the ergonomic evaluation was whether she could receive “Dragon speech recognition software.” (See UMF 26.) Sutter tenders Neal’s deposition testimony for the proposition that, after learning she would be recommended for the software, Neal dropped any pursuit of it. (See UMF 26-29.) Neal counters that the testimony may be read otherwise. (See Opp. Sep. Stmt., UMF

27, 28.) The court agrees with Neal.

The testimony in question may be read to establish that, even though Sutter’s ergonomic evaluator forwarded a written recommendation for installation of Dragon software on Neal’s computer, Sutter personnel were dilatory and unresponsive. (See Neal Depo. Tr. at 236:11-252:11.) In addition, the testimony indicates that the evaluator himself and a Sutter supervisor both doubted that the software request would be approved. (See id., 239:9-17, 317:4-20.) The testimony might support differing inferences, but the court must draw all reasonable inferences in Neal’s favor at this juncture. Given the possible inferences, whether Sutter worked with Neal in good faith to obtain the Dragon software for her presents a triable issue, and summary adjudication must be denied.

In denying summary adjudication, the court rejects Sutter’s argument that Neal was the one who failed to pursue the Dragon software. (See UMF 28 [Neal “dropped the issue of seeking the Dragon software”].) Granted, Neal testified that, after the evaluator recommended the software, she forgot about it until she started having pain in her hand. (Neal Depo. Tr. at 241:19-23.) She also testified that, after Sutter’s worker’s compensation representative instructed her to contact Franklin to obtain the software, and after she then contacted Franklin, Franklin informed her that she had not received the necessary paperwork, and Neal dropped the software issue altogether. (See id. at 240:7-242:11.) But by the time Neal contacted the worker’s compensation representative or Franklin, months had passed since the evaluator first recommended the software. Sutter does not explain why this lapse does not reflect Sutter’s decision not to pursue the software in good faith, as opposed solely to Neal’s decision. More generally, Sutter’s position seems to be that, once the evaluator recommended the software, it was primarily Neal’s obligation to pursue the matter. Given that the FEHA imposes on employers a continuing obligation to interact in good faith, (see Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 986), the court is not persuaded.

Sutter tendered the installation of the Dragon software as an issue material to its request for summary adjudication. Because that issue presents a triable issue, the court need not decide whether other triable issues preclude summary adjudication of the sixth cause of action.

The Fifth Cause of Action against Sutter for Failure to Accommodate

Summary adjudication is DENIED.

In the FAC, Neal alleges that Sutter’s denials of reasonable accommodation included failing to provide light duty and failing to provide an ergonomic work site. (FAC, ¶ 30.) During discovery, Sutter learned about other asserted failures to accommodate. In response to an interrogatory, Neal asserted that the accommodations she needed were (1) limited typing, (2) restricted lifting, (3) an ergonomic evaluation, (4) time off/breaks, and (5) the Dragon speech recognition software. (See UMF 47.) To demonstrate the nonexistence of any triable issue, Sutter cites evidence that the only accommodation Neal claims she was denied was the Dragon software, as well as evidence that none of her treating physicians identified Dragon software as a necessary accommodation. (See UMF 50-51.) Based on this evidence, Sutter argues that it is entitled to summary adjudication because it provided every medically necessary accommodation requested.

The court rejects Sutter’s argument that it had no obligation to provide the Dragon software because no doctor identified the software as medically necessary. Doctor-designated accommodations are not required to state a failure-to-accommodate cause of action.

There are three elements to a failure to accommodate action: “(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability. [Citation.]”

(Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1993 -1194.) Sutter does not expressly argue that Neal was not disabled or that she was not a qualified individual. Rather, it only seeks summary adjudication on the ground that no reasonable accommodation was withheld. Evidence that a doctor did not specifically identify Dragon or other speech recognition software, however, does not preclude an inference that such software constituted a reasonable accommodation. The modification or alteration of equipment is among the reasonable accommodations identified in the FEHA itself. (See Gov’t Code § 12926(p)(2).) Furthermore, for reasons discussed above, the extent to which Sutter (rather than Neal) bears responsibility for failing to procure the Dragon software involves triable issues.

The court notes Sutter’s reliance on evidence that in mid-March 2017, Neal’s physician released her from all work restrictions and indicated that she could return to work full time. (See Moving Memo. at 21:13-15; UMF 35.) Elsewhere, however, Sutter tenders evidence that its disability coordinator spoke with Neal in May 2017 and advised that Sutter wished to engage in the interactive process to accommodate any disability. (See UMF 37.) To the extent Sutter suggests that no accommodation was necessary because Neal was not disabled, Sutter’s own evidence establishes that disability is an issue that must be tried.

The court also notes evidence that Neal did not specifically request workplace accommodations after her physician released her from her restrictions in mid-March 2017. (See UMF 41.) The evaluator’s recommendation for Dragon software, however, predated the release from restrictions. (See UMF 25.) Hence, to establish the nonexistence of any triable issue as to whether Neal was entitled to accommodation before mid-March, Sutter was required to tender evidence that it had no reason to believe that Neal was disabled before then. Sutter does not cite such evidence.

In sum, whether Sutter failed to provide reasonable accommodation by withholding the Dragon software involves triable issues, and summary adjudication is denied.

The Second and Third Causes of Action against Defendants for Harassment Based on Age and Disability

Summary adjudication is DENIED.

Neal’s harassment causes of action rest largely on comments by Franklin. In response to a question about any age-related comments Franklin made, Neal testified:

Well, there have been a lot of times. There was, you know, “You need to

retire.” She would make comments about in passing “Your feet are swole,” you know. “You need to take care of yourself. You need to retire” or you need — “It’s good for you to take care of yourself.” Those were — a lot of the times those were the comments. “You need to focus on yourself and take care of yourself.” And there was basically a lot of those comments.

(Neal Depo. Tr. at 145:8-16.) Neal also testified that once or twice a month Franklin commented that she was “getting older” and had “these illnesses going on.” (Id. at 146:10-147:10.) She testified that Franklin introduced her to newly hired employees as “the older employee,” (id. at 150:3-9), and she asserts in her declaration that Franklin “harassed [her] on a daily basis[.]” (Neal Decl., ¶ 11.) Defendants argue that the evidence cannot support inferences of harassment based on either age or disability. They also argue that the evidence does not describe harassment at all, much less harassment that could be characterized as severe or pervasive, as required under the FEHA. The court, however, disagrees.

The testimony above permits widely different inferences. As Defendants suggest, the evidence could be viewed to reflect genuine concern about Neal’s well-being. But routine comments that an older employee with health problems “need[s] to retire” could be viewed as a pattern of demeaning comments within the FEHA’s protection. Franklin’s tone in making these comments is key to a resolution, but this court may not assess tone on a cold transcript. Evidence that Franklin excluded Neal from staff meetings and made her alone cover vacationing nurses’ schedules contributes to an inference that Franklin was not merely concerned about Neal’s well-being. The totality of the evidence presented does not bar inferences needed to state harassment, and summary adjudication is denied accordingly.

Objections to Evidence

Defendants’ Objection No. 10 is overruled.

The court need not rule and does not rule on the balance of Defendants’ objections. (CCP § 437c(q).)

Disposition

The motion is denied.

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