Flenoy v. AlamedaCountyMed.Center

Flenoy v. AlamedaCountyMed.Center

Filed 7/30/08 Flenoy v. Alameda County Med. Center CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

DELORES FLENOY, Plaintiff and Appellant, v. ALAMEDA COUNTY MEDICAL CENTER, Defendant and Respondent.

A117761 (Alameda County Super. Ct. No. RG04181163)

In this action challenging her termination from employment, plaintiff Delores Flenoy appeals from a summary judgment in favor of her former employer, Alameda County Medical Center (ACMC). She contends her evidence raised a triable issue of material fact as to whether her termination resulted from discriminatory or retaliatory animus. We conclude that the overwhelming, undisputed evidence establishes that plaintiff was terminated for legitimate business reasons and that plaintiff presented no evidence suggesting that those reasons were pretextual. Accordingly, we shall affirm the judgment.

Background

Plaintiff, a 57-year-old African-American woman, worked for ACMC since 1975, with a 14-month break in service. Beginning in 1998, she was employed as a patient services technician (PST). As such, she was responsible for interviewing and financially screening patients for eligibility for state and federal medical benefits. As a PST, plaintiff was represented by Service Employees International Union (SEIU) Local 35. In October 2001, plaintiff became a union shop steward.

On October 28, 2002, ACMC issued a notice of intent to terminate plaintiff. Plaintiff was charged with excessive tardiness, dishonesty, falsification of documents, absence without authorized leave and neglect of duty. She was terminated on November 30 and the decision to terminate was upheld following a Skelly[1] hearing on December 12.

Plaintiff filed a grievance with her union and an unfair practices charge with the Public Employees Relations Board (PERB). Both her grievance and complaint to PERB alleged that plaintiff was discharged in retaliation for participation in union activities. The union did not pursue the grievance and denied her appeal. PERB likewise dismissed her unfair practices charge. The PERB dismissal letter explained, While it is clear you engaged in protected activity and that [ACMC] was aware of this protected activity, facts provided fail to demonstrate the requisite nexus. Although the timing of some of the disciplinary actions are in close temporal proximity to your protected activity, facts provided demonstrate that you were consistently reprimanded for your tardiness well before you engaged in any protected activity.

Plaintiff next filed a complaint with the California Department of Fair Employment and Housing(DFEH) alleging retaliation for engaging in union activity and discrimination based on age, gender and race. Plaintiff elected to forgo investigation by the DFEH and was immediately issued authorization to file this action.

The second amended complaint in this action alleges causes of action for gender, race and age discrimination (first three causes of action), wrongful termination in violation of public policy based on her participation in union activity (fourth and fifth causes of action), whistleblower retaliation in violation of Labor Code section 1102.5 based on a complaint she had filed with the California Department of Health Services (DHS) (sixth cause of action), and breach of an implied contract (seventh cause of action). The court sustained ACMCs demurrer to plaintiffs fifth cause of action and plaintiff does not now dispute that ruling.

ACMC subsequently filed a motion for summary judgment, which the court ultimately granted. With respect to the causes of action for discrimination, the court found that plaintiff failed to raise a triable issue of material fact suggesting that [ACMCs] decision to terminate/suspend her was motivated by unlawful discriminatory animus. . . . [P]laintiff failed to introduce evidence in support of a prima facie case of gender, race, and age discrimination. Moreover, the undisputed evidence indicates that Plaintiff was terminated/suspended for non-pretextual legitimate business reasons, namely but not limited to Plaintiffs excessive tardiness, insubordination, unauthorized absences from work, falsification of records, and dishonesty. The court also found that Plaintiff has failed to raise a triable issue of material fact suggesting that Defendants decision to terminate/suspend her was motivated by her engaging in protected activity.[2] Plaintiff filed a timely notice of appeal.

discussion

Plaintiff contends that the trial court erred in summarily adjudicating her claims of discrimination and retaliation under the Labor Code. Summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) If the defendant is the moving party, it must show that a cause of action has no merit by putting forth evidence that either one or more elements of the cause of action, even if separately pleaded, cannot be established or that there is a complete defense. (Id., subd. (o)(2).) If the defendant does so, the burden shifts to the plaintiff to establish that a triable issue of material fact exists. (Id., subd. (p)(2).)

On appeal, we review de novo the trial courts decision to grant summary judgment. We independently determine whether the record supports the trial courts conclusions that the asserted claims fail as a matter of law, and we are not bound by the trial courts stated reasoning or rationales. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.) We must view the evidence submitted in connection with a motion for summary judgment in a light most favorable to the party opposing the motion and resolve any evidentiary doubts or ambiguities in [her] favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

I. Race, Sex and Age Discrimination

It is an unlawful employment practice for an employer to discharge [a] person from employment based on that persons race, gender or age. (Gov. Code, 12940, subd. (a); see also former Gov. Code,  12941, subd. (a), (repealed by Stats.2002, ch. 525, 4) [it is an unlawful employment practice for an employer to . . . discharge . . . any individual over the age of 40 on the ground of age . . . .].) In general, there are two types of claims for illegal employment discrimination: those based on disparate treatment and those based on disparate impact. (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128-129.) Plaintiffs claim is based on a disparate treatment theory, which requires a showing that the employer acted with discriminatory intent. (Ibid.)

California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination . . . based on a theory of disparate treatment. [Citations.] [] This so-called McDonnellDouglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz), citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) Under the McDonnellDouglas test, the initial burden of presenting a prima facie case of discrimination is on the plaintiff. (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144.) Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action . . . , and (4) some other circumstance suggests a discriminatory motive. (Guz, at p. 355.) If the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises. (Ibid.)

Upon a showing of a prima facie case, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to raise[] a genuine issue of fact and to justify a judgment for the [employer], that its action was taken for a legitimate, nondiscriminatory reason. [Citations.] [] If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employers proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 355-356.)

When an employer moves for summary judgment it must establish that it is entitled to judgment as a matter of law by setting forth competent, admissible evidence to show legitimate, nondiscriminatory reasons for its action. [Citation] It is then the employees burden to rebut the employers showing by pointing to evidence which raises an inference that intentional discrimination did occur. [A] plaintiffs showing of pretext, combined with sufficient prima facie evidence of an act motivated by discrimination, may permit a finding of discriminatory intent, and may thus preclude judgment as a matter of law for the employer. [Citation.] [Citation.] (Villanueva v. City Of Colton (2008) 160 Cal.App.4th 1188, 1194.)

A. Legitimate, Nondiscriminatory Reasons for Termination

The evidence submitted by ACMC in support of its summary judgment motion demonstrates numerous legitimate, nondiscriminatory reasons for terminating plaintiff: her excessive tardiness, dishonesty, falsification of documents, absence without authorized leave, and neglect of duty.

ACMCs evidence shows that for many years plaintiff received warnings and reprimands regarding her tardiness, but failed to improve her punctuality. On two occasions plaintiffs supervisors offered to change her work schedule to allow her to arrive at a later hour, but plaintiff declined, once explaining that she was a habitually late person and changing her schedule would not help the problem. Plaintiff was verbally counseled on her tardiness on three occasions in 1999 and she received a written counseling memorandum due to her tardiness twice in 2000. Plaintiff received a written reprimand in April 2002, which indicated that she had been late 31 out of 35 work days, and another written reprimand in June 2002 which indicated that she had been late on 17 occasions since the April notice. In August 2002, plaintiff received a notice of intent to suspend her due to excessive tardiness. In the 22 work days between the date of the notice and the start of the 10-day suspension, plaintiff was late on 21 of those days. The declaration filed by plaintiffs supervisor states that plaintiff has shown no improvement whatsoever with regard to her tardiness since the suspension.

The vast majority of this evidence is undisputed. To the limited extent that some of this evidence is disputed, the factual disagreements are immaterial. Plaintiff disputes the accuracy of some of ACMCs time records in that she denies being tardy as often as alleged. In her deposition testimony she explained that ACMCs records were always off by two or three minutes. [] . . . [] I didnt consider myself late on a lot of those days that they considered me late. She explains further in her declaration, In the 20 plus years I have worked at ACMC, it has been my practice to arrive to work between 8:00 a.m. and 8:30 a.m., and to work later than 4:00 p.m. to make up the time. [] When [Linda] Fisher took over the management of my unit [in 1999], she implemented an unofficial policy that each employee allegedly would report when he or she arrived to a verbal time clock. . . . [] . . .[] In March 2001, I was advised that Linda Fisher implemented another unofficial policy [t]o dock my pay for any time I spent working at the ACMC after 4:00 p.m. because I was no longer permitted to make up time if I arrived after 8:00 a.m. Plaintiff does not contend, however, that she was ever considered tardy when she in fact arrived at work by the required starting time of 8:00 a.m.

ACMC also presented evidence that beginning in 2001, Plaintiff began refusing to utilize bilingual employees to translate for non-[E]nglish speaking patients, despite supervisory directives to the contrary. Plaintiff would either allow persons accompanying the Spanish speaking patients to translate, in violation of the policy contained in the ACMC Bilingual Services Manual (stating that family or friends can be used to translate only as a last resort), or she would label the patients registration form Spanish and return it to the intake box. Plaintiff explained that she believed it was the responsibility of the bilingual employees to serve non-English speaking patients because they received bilingual pay. Between September and December 2001, several complaints were made by non-English speaking patients regarding plaintiffs refusal to serve them. In February 2002, plaintiff was suspended for 30 days for her discourteous treatment of patients, breach of patient confidentiality, violation of patient rights, neglect of duty, and insubordination based on [her] refusal to interview Spanish speaking patients [on specified dates]; [her] refusal to utilize available bilingual registration staff as interpreters despite management directive to do so, and complaints by patients of rude treatment . . . . Following her suspension, plaintiff again refused to use a translator to interview a patient despite her supervisors direction to do so.

The majority of this evidence also is undisputed and, to the extent that some is [p]artially disputed, the factual differences are immaterial. Plaintiff does not dispute that she was told that she was expected to utilize available bilingual employees within her unit for translation services but refused to do so. She acknowledges that the ACMC Bilingual Services Manual provides, Bilingual-designated employees shall interpret in their immediate service areas. ACMC staff was also advised by written memorandum in 1999, When the Spanish speaking PFC [patient financial counselor] is unavailable, [i.e.], not on the premises, on break, or at lunch, refer to the bilingual list and call another interpreter. [] The patient is not to wait until the Spanish speaking PFC is available in the above situations. Despite repeated clarification and direction from her supervisor to the contrary, plaintiff explains that she nonetheless continued to interpret these provisions as requir[ing] that in Departments which had bilingual-designated employees who provide direct services to non-English speaking patients, that those bilingual-designated employees would interact directly with the Spanish-speaking patients. (Emphasis omitted.)

ACMC also submitted evidence that on two occasions it disciplined plaintiff for violating the memorandum of understanding with regard to union activities, that on one occasion plaintiff did not return to work in a timely manner after attending a morning union meeting, and that between March 2000 and July 2002, while acting as an employee of ACMC, plaintiff improperly filled out financial eligibility paperwork for her ex-husband.

Plaintiffs attempts to dispute this evidence also fails. First, plaintiff disputes the allegation that on one occasion she was away from work without permission. Her own declaration, however, supports the allegation. She explains that after attending a pre-approved union function until after 2:00 p.m. she went home for lunch. At 3:00, [her supervisor] called me to tell me I was AWOL rather than to ask me when I was coming back to the office after my break. It is undisputed that ACMCs lunch breaks were 30 minutes and that plaintiff did not have permission to take an extended break following her union meeting. Likewise, plaintiff does not dispute that she incorrectly listed herself as her former husbands wife on certain paperwork, but asserts that it was a mistake. She also argues that the mistake was immaterial because she believed that her former husband was entitled to any . . . benefits that he received based on his status as an unmarried man.

This undisputed evidence satisfied ACMCs burden of showing that it terminated plaintiff for a legitimate nondiscriminatory reason.[3] (Guz, supra, 24 Cal.4th at p. 356.)

B. Pretext

In light of the evidence that ACMC had legitimate, nondiscriminatory reasons for terminating plaintiff, the burden shifted to plaintiff to offer evidence that the asserted reasons were not ACMCs true reasons, but were instead a pretext for discrimination. Plaintiff argues, As to gender and race discrimination, the plaintiff alleges that a similarly situated white [male co]worker with a tardiness issue, named Roger Glancy, was not similarly disciplined. As to age discrimination, the plaintiff points out simply that she was replaced by a much younger employee.

The evidence shows that Glancy was not a similarly situated employee. Although he, like plaintiff, was habitually late for work and suspended for excessive tardiness, the similarities stop there. The evidence shows that while plaintiffs tardiness continued unabated following her suspension, Glancys timeliness to work improved following his suspension. In addition, there is no evidence that Glancy was disciplined for insubordination or for neglecting his duties.

Plaintiff states in her declaration, I allege on information and belief that the hand-written records . . . demonstrate that my and Roger Glancys alleged tardiness issues were similar, and that his did not improve after his suspension. However, there is no evidence in the record to support plaintiffs contention that Glancy continued to be tardy after his suspension. To the contrary, Glancys supervisor stated in his declaration that Glancys tardiness improved following his suspension. Plaintiffs self-serving statement made on information and belief is not sufficient to create a triable issue with regard to this fact. (See Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1124 [statements made on information and belief inadequate to demonstrate triable issue of material fact].)[4]

Plaintiff also claims that Glancy had several other policy offenses about which plaintiff knows, including a complaint from a patient and an allegation of being AWOL. For these offenses, however, he was not disciplined, or terminated . . . . To the extent that there is any evidence in the record regarding Glancys job performance, apart from his tardiness, it reflects that Glancy was verbally counseled on one occasion regarding a complaint from a patient who felt that other patients were being called ahead of her because [he was] holding her paperwork while [he was] engaged in a personal conversation. There is also evidence that on one occasion Glancy was charged with an unauthorized absence after taking an additional 30 minutes for a lunch break. Glancy was counseled on this violation and was not paid for the extra 30 minutes. Plaintiff is thus incorrect that Glancy was not disciplined. Moreover, taken as a whole, Glancys history of misconduct is significantly less persistent and severe than was the case with plaintiff. For one thing, Glancy did not refuse to serve non-English speaking patients in violation of ACMC policies and his supervisors directions.[5]

Plaintiffs allegation of age discrimination is similarly lacking in evidentiary support. It is undisputed that at the time the motion was filed, plaintiffs direct supervisor was 58 years old. When defendant was terminated there were nine or ten other employees in her department, only two of whom were under the age of 40. Plaintiff does not cite any evidence, nor have we located any, to support her assertion that she was replaced by a younger employee. There is, however, undisputed evidence that her replacement was selected pursuant to the ACMC policy that required that open positions be filled with the most senior ACMC employee who applies and meets the requirements for the position.

As explained in Guz, supra, 24 Cal.4th at page 362, plaintiffs discrimination claims cannot survive ACMCs motion for summary judgment unless the evidence in the summary judgment record places [ACMCs] creditable and sufficient showing of innocent motive in material dispute by raising a triable issue, i.e., a permissible inference, that, in fact, [ACMC] acted for discriminatory purposes. That is, summary judgment for the employer may thus be appropriate where, given the strength of the employers showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred. (Ibid.) Such is the case here. Accordingly, the trial court properly granted ACMCs motion for summary judgment with respect to plaintiffs discrimination claims.[6]

II. Retaliation

Plaintiffs sixth cause of action alleges whistle blower retaliation under Labor Code section 1102.5, subdivision (b).[7] She alleges that she disclosed the failure of ACMC to provide its employees with training and access to bilingual services to the DHS and was discharged because of the disclosure. The undisputed facts with regard to this claim are as follows:

ACMCs statement of undisputed facts states, On June 3, 2002 and June 27, 2002 Plaintiff made a confidential complaint to [t]he Licensing & Certification Program of the [DHS] that ACMC failed to provide its employees with training and access to materials in policies, procedures and bilingual services.[8] The complaint alleged that [t]he policy and procedure on interpretive services does not direct the staff on what, when and who to use to provide [interpretive] services to the patients. DHS conducted an unannounced on-site investigation on August 15, 2002. Four employees were interviewed, including plaintiff and Glancy. Three of the four employees interviewed told investigators that they were not familiar with the bilingual services manual. The DHS summary of the investigation, which was completed in October 2002, concludes that [b]ased on staff interviews and document reviews, it was determined that the hospital failed to have the bilingual directory and translation policy and procedures available to the outpatient registration staff. Therefore, the hospital was in violation of Title XXII 70719 (c)(2) on Personnel Policies. According to ACMC, Glancy later admitted to his supervisor that he was dishonest when he told the interviewer that he did not know about the existence of the manuals.

To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employers action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] 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. [Citation.] (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) The retaliatory motive is proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter. [Citation.] The causal link may be established by an inference derived from circumstantial evidence, such as the employers knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision. [Citation.] [Citation.] (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.) ACMC moved for summary judgment of plaintiffs retaliation claim both on the ground that she could not establish the required causal link between her complaint to the state and her termination and on the ground that it had legitimate, nonretaliatory reasons for her termination.

ACMC argues that the evidence clearly established that prior to Plaintiffs complaint to the DHS, a progressive course of discipline was being taken against her because of her violation of several ACMC policies and procedures. If anything, the trial court could reasonably infer from the evidence that Plaintiff filed her complaint to the DHS in reaction to her performance issues that were being addressed by ACMC. We need not decide, however, whether the timing of plaintiffs complaint was sufficient to make a prima facie showing of retaliation, because any inference of retaliation was rebutted by defendants legitimate nonretaliatory reason for her termination. As discussed above, plaintiff has failed to raise a triable issue that the reasons given for her termination were pretextual. Moreover, as ACMC argues, the undisputed evidence establishes that plaintiffs complaint was filed after she had been disciplined numerous times for excessive tardiness and suspended for failing to follow her supervisors directions to properly serve bilingual patients.[9] ACMCs consistent and progressive discipline is significantly different from the defendants heightened response to [plaintiffs] allegedly poor performance in Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1062. Accordingly, the trial court did not err in summarily adjudicating plaintiffs sixth cause of action.

Disposition

The judgment is affirmed. ACMC is to recover its costs on appeal.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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[1]Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.

[2] The court also found that plaintiffs cause of action for wrongful termination in violation of public policy was barred by the doctrine of collateral estoppel and that her breach of contract claim failed because she had not established that ACMC promised not to terminate her without cause. Plaintiff does not challenge these rulings on appeal.

[3] Plaintiff argues that the court improperly refused to rule on her evidentiary objections, having concluded that her objections were not to the evidence submitted in support of the motion but to ACMCs  characterization of the evidence.  As to all but one objection, which will be considered post, the following is plaintiffs complete argument: Perhaps some of the plaintiffs objections may be characterized as mere objections to characterizations, but a number of the objections were quite plainly valid objections to evidence. For example, the plaintiff objected that Ms. Fishers and Ms. Barreros self-serving declaration is insufficient to prove her own mental state in a summary judgment proceeding (undisputed facts 19 and 22); that one asserted fact was compound ([fact] 23); and that three were vague ([facts] 48, 62, 80). Absent any further discussion or showing of prejudice, we must deem these alleged errors waived. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice]; Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77 [Where any error is relied on for a reversal it is not sufficient for appellant to point to the error and rest there].)

[4] Contrary to counsels suggestion at oral argument, plaintiffs declaration does not assert that she personally observed Glancy arrive late at work after he had been disciplined for tardiness. The declaration states only plaintiffs information and belief as to the contents of written records that were not introduced in the trial court.

[5] Plaintiff also argues that Glancy admitted to lying to a state investigator but was not disciplined for his dishonesty. At the same time, she argues that Glancys admission is hearsay and that the court erred in failing to exclude that evidence. The details of the state investigation are discussed post, but either way plaintiff loses. If the evidence was improperly admitted, as plaintiff suggests, then plaintiff has no basis to argue Glancy received more favorable treatment. If the evidence was properly admitted, then plaintiffs argument is defeated because, as the court observed, Plaintiff was also not disciplined for lying to the state [during the investigation], which shows that both were treated equally in that regard.

[6] Plaintiff argues for the first time in her reply brief that the court erred in granting defendants motion for summary judgment because the final decision to terminate was allegedly made by Rosemary Murphy, in her role as labor relations head, but ACMC failed to present any direct evidence of her intent in terminating plaintiff. This issue has been waived. (Locke v. Warner Bros., Inc. (1997) 57 Cal.App.4th 354, 368; Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)

[7] Labor Code section 1102.5, subdivision (b), provides, An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

[8] Although the complaint was confidential, ACMC does not dispute that it knew that the complaint was filed by plaintiff.

[9] Plaintiff argues that her activities as a union shop steward are another illegal motive which may have contributed to the termination but acknowledges that these activities are not being pursued here for damages.