Hung v. Kaiser Permanente
Filed 1/15/13
Hung v. Kaiser Permanente CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH APPELLATE DISTRICT
SHU HUNG,
Plaintiff and Appellant,
v.
KAISER
PERMANENTE, et al.,
Defendants and Respondents.
H037515
(Santa Clara County
Super. Ct. No.
CV153182)
After
Shu Hung was forced to retire from her position as a Kaiser outpatient pharmacist,
a position she had held for more than several decades, she brought an action
for damages. The trial court granting
respondents' motion for summary judgment
(Code Civ. Proc., § 437c)
name="_ftnref1" title="">[1]
and a judgment was entered in favor of respondents Kaiser Foundation Health
Plan, Inc., ("KFHP") and Kaiser Foundation Hospitals
("KFH"),
title="">[2] and
Chris Oliva, the pharmacy director who made the decision to terminate Hung.
On
appeal, Hung maintains that the judgment must be reversed because triable
issues of material fact remain as to whether the articulated reasons for the
decision to terminate her were pretext for discrimination on the basis of
disability, age, and gender under the Fair Employment and Housing Act (FEHA)
(Gov. Code, § 12900 et seq.) and for retaliation on the basis of her
exercise of rights under the Family and Medical Leave Act of 1993 (FMLA) (29
U.S.C., § 2601 et seq.). According
to Hung, her evidence showed that the four medication-related incidents on
which the termination decision was supposedly based were either fabricated or
"occurred in a dramatically different fashion" than described by
Oliva and, therefore, a jury should be permitted to "decide whose story is
more credible."
Respondents
presented sufficient evidence of legitimate, nondiscriminatory and
nonretaliatory reasons for the decision to terminate appellant Hung. The evidence as a whole was insufficient to
support a reasonable inference that the proffered reasons were untrue or those
reasons were merely a pretext for discrimination or retaliation. Accordingly, we affirm.
I
Procedural History
On
September 23,
2009, appellant Hung filed a
discrimination based on age, gender and disability under the FEHA. The second cause of action alleged
retaliatory termination for her exercise of rights under the FMLA. The third cause of action alleged that, on July 29, 2008, while Oliva was reprimanding Hung, defendants assaulted her. On appeal, she does not assert that any
triable issue remains as to the third cause of action.
II
A.
Undisputed Facts
The following facts are not
disputed.
Appellant Hung began working for
Kaiser Permanente in 1976 as an outpatient pharmacist. Prior to her termination in August 2008,
appellant Hung was employed as a pharmacist at Kaiser's Santa Clara Medical
Center Homestead Campus in the outpatient pharmacy.
In
January 2008, respondent Oliva began serving as the outpatient pharmacy
director at the Santa Clara Medical Center for Kaiser Permanente.
Respondent Oliva was responsible for managing pharmacy operations,
including taking disciplinary actions against staff.
In
late February or early March 2008, Kelvin Chan, one of appellant Hung's
supervisors, approached Oliva and informed Oliva that he had concerns about
Hung's attendance.
Appellant
Hung knowingly allowed a Kaiser member to leave the pharmacy with a medication
to which she was allergic.
On
June 5, 2008, outpatient pharmacy manager Ali Ghezavat told Oliva that he had
spoken with a member who had been "improperly counseled by Hung to
purchase and apply over-the-counter Hydrocortisone cream to an open foot
wound." The member reported that he
had "experienced extreme pain and had no resolution of the wound for
several days" and then he had sought a further recommendation from
Ghezavat.
On
June 20, 2008, respondent Oliva met with appellant Hung and placed her on a
five-day suspension retroactively beginning on June 17, 2008. At this meeting, Oliva
presented her with a written disciplinary action for unsatisfactory conduct
documenting that Hung had, on two occasions, provided incomplete and inaccurate
information, instructions and directions to members. Oliva also presented appellant with a second
written disciplinary action for unprofessional conduct in calling in sick on
nine dates. During this meeting, Oliva
did not say anything to appellant Hung about her age, gender, or TMJ problem.
After
being disciplined for poor attendance, appellant Hung applied for leave under
the FMLA. In early July 2008, Debra
Contreras received appellant Hung's application for FMLA leave and processed
it. On July 11, 2008, Hung's FMLA leave was approved for the period beginning on June 27, 2008 and ending on June 29, 2008.
During
a member consultation on July 21, 2008, appellant Hung
caught a dispensing error that had been made by another pharmacist, Kumar
Atmuri, who had inappropriately dispensed penicillin to a patient who was
allergic to that medication. Appellant
"provided management with all of the information needed to complete a Drug
Furnishing Incident ('DFI') report that same day."
Also,
on July 21,
2008, appellant Hung committed a drug
furnishing error when she furnished a filled prescription for the drug Travatan
to the wrong member. She did not notice
that the prescription for Travatan had another member's name on it. She discovered the error only moments later
when the member for whom the prescription was intended attempted to pick up the
prescription.
Oliva
did not learn about the July 21, 2008 Travatan
furnishing error until July 25, 2008. At that point, "Oliva immediately began
an investigation into the Travatan incident by reviewing the drug furnishing
irregularity system." "He
determined that no DFI report had been completed and could not locate any
documentation of the Travatan error."
On
July 24, 2008, appellant Hung filled a prescription for Prochlorperazine despite
a notation that the member was allergic to the medication.
On
Monday July
28, 2008, respondent Oliva spoke to
appellant Hung regarding the Travatan error.
After appellant Hung was reminded of the incident, she produced some
documents related to the incident that she had been keeping in her smock pocket.
On
July 29, 2008, respondent Oliva and Pharmacy Services Supervisors Debra Contreras
and Susan Velasquez met with appellant Hung to investigate the drug furnishing
incidents that had occurred on July 21, 2008 and July 24, 2008. At the conclusion of the
meeting on July
29, 2008, respondent Oliva placed Hung on
investigatory suspension.
During
the July 29,
2008 meeting, Oliva referred to a small
paperback book that contained a portion of the California
pharmacy laws related to drug furnishing errors. Oliva did not verbally threaten to hit
Hung. Oliva never touched Hung with the
book.
On
July 31, 2008, Oliva prepared and mailed a letter to Hung notifying her that
she had been placed on a 10-day suspension with the intent to discharge her for
cause due to unsatisfactory performance and unprofessional conduct.
Hung
was given the choice of retirement or termination. After choosing retirement, she attempted to
rescind her decision pursuant to her union rules. Hung had worked at Kaiser Permanente as an
outpatient pharmacist for 32 years.
In
her written discovery responses, appellant Hung "identified her disability
as 'chronic pain.' " Hung
"never discussed her TMJ with Oliva."
Hung
identified only one younger employee, 35-year-old Atmuri, who she claimed made
a dispensing error and was not fired.
During the entire period that Oliva was supervising Hung, Oliva never
made a comment to her about her age.
Appellant
Hung never heard from any source that Oliva had a plan to get rid of her.
B.
Judgment
Respondents'
evidence showed the following.
"[A]ll of Kaiser's California pharmacies participate in a Drug
Furnishing Incident—Quality Assurance Program ('DFI/QA Program') which outlines
the mandatory protocol for the investigation, resolution, documentation and
reporting of any Drug Furnishing Incident ('DFI')." "Kaiser maintains and enforces policies
which mandate counseling and provide for progressive discipline for all
employees who are implicated in Drug Furnishing Incidents." Its discipline policy for failures to report
states that "[a]ny pharmacy employee . . . who does not report a DFI as
required . . . shall be subject to discipline, up to and including termination."
Kaiser's
DFI/QA program defines a DFI as "any reported or discovered incident where
a patient may have received a drug not in compliance with pharmacy law or
acceptable pharmacy or medical practice . . . and includes but is
drug, wrong strength, wrong quantity, wrong directions, or wrong
patient." (Italics added.) The definition states that "[i]t is a
DFI when the medication has left the control of pharmacy personnel into the
control of the patient or patient's agent." A "Near Miss" is defined as
"an event that would have resulted in a dispensing error if it had not
been discovered before the medication or information had left the control of
pharmacy personnel."
Kaiser's
Outpatient Policy on resolving a DFI states: "Investigation shall begin
immediately by obtaining and documenting sufficient information to take prompt
appropriate action to resolve the DFI for purposes of patient safety and
satisfaction. As soon as possible this
information shall be entered on the DFI/QA Report Form . . . ." The policy with regard to near misses states
that the "emphasis for Near Misses should be on reporting errors that
potentially could have lead [sic] to serious events" and "identifying
policies, procedures, systems or processes that may have contributed" to a
particular "Near Miss." Its
policy requires the original DFI/QA Report to be "given to the Pharmacy
Manager immediately, or if the manager is not on duty, the very next time
he/she is on duty" and addendums to the report to be "submitted to
the manager as soon as possible."
DFI reports are used to identify "near misses."
In
about late February 2008, after Oliva became the outpatient pharmacy director
at the Kaiser Permanente Santa Clara Medical Center, Chan informed Oliva that
Hung had an attendance issue. On March
13, 2008, Oliva was copied on Chan's email to Velasquez. It indicated that Chan "coached"
Hung on her attendance issue in late February 2008, appellant nevertheless
called in sick the following week, and Chan wanted to give Hung "a Verbal
on her excessive sick calls." In
the message, Chan instructed Velasquez to prepare appellant's attendance
card. On approximately March 31, 2008,
Chan transferred to another Kaiser facility.
On
May 12, 2008, Oliva overheard a patient complaining to a pharmacy clerk and he
intervened. The patient explained to him
that she had attempted to return a medication to the pharmacy because it
contained red dye to which she was allergic.
According to the patient, Hung had refused to return it and directed
"the patient to use the medication if she needed to" and to "go
to the emergency room if she had an allergic reaction to it." After resolving the patient's situation,
Oliva began investigating appellant Hung's "job performance because
[Hung's] conduct in the situation, as described to [him] by the patient, was
unprofessional, in violation of policy and put the patient at risk of severe
harm and potentially death."
In
her deposition, Hung admitted that the patient with the red dye allergy had
requested to return the medication but Hung had not returned it because the
pharmacy was very busy and instead told the patient to go tell her doctor to
put the information into the system and then come back to pharmacy to exchange
the medication. Hung acknowledged that
she allowed the member to leave with the medication to which she was allergic.
On
June 5, 2008, respondent Oliva received information regarding a second patient
complaint. Ghezavat, who was the
outpatient pharmacy manager for the second floor pharmacy at same medical
center, informed Oliva that Hung had "counseled a patient to use
Hydrocortisone cream on an open foot wound, despite the fact that this
medication is not indicated for, and is an inappropriate treatment for, open
wounds." "The patient suffered
severe pain and the wound remained unimproved for several days until the
patient obtained a further consultation from Ghezavat. "
On
June 10, 2008, respondent Oliva met with appellant Hung in connection with his
investigation of her work performance.
Hung admitted that she had allowed a patient to leave the pharmacy with
a medication to which she was allergic but she explained the pharmacy had been
busy. Hung did not express concern for
potential patient harm. With regard to
the Hydrocortisone cream incident, Hung claimed that she never provides
over-the-counter recommendations to patients and complained that she was not
trained to diagnose such an issue.
According to Oliva, however, "[p]harmacists are trained and expected
to make recommendations to patients regarding the correct use of
over-the-counter medications." "Hydrocortisone is contraindicated for
open wounds."
On
June 17, 2008, Oliva "informed Hung that she was being placed on an
administrative leave of absence pending the outcome of an investigation of her
job performance." On June 20, 2008,
Oliva met with Hung and gave her two written disciplinary actions. He suspended her for five days, beginning
retroactively on June 17, 2008.
The
first of the two disciplinary actions was for Hung's unsatisfactory job
performance and unprofessional conduct related to the two medication-related
incidents. The first involved Hung's
refusal of a member's request to return a medication to which she was allergic,
her instruction to the patient to take the medication regardless of the
patient's allergy, and her failure to document the patient's allergy in the
pharmacy information management system.
The second incident involved Hung's incorrect recommendation to a member
to apply Hydrocortisone to treat an open foot wound. The second disciplinary action was for
calling in sick on nine occasions after she had been counseled regarding
attendance by her former supervisor in late February 2008. That action stated that her absenteeism
resulted in the pharmacy being understaffed, affected the level of service
provided to members and was unfair to coworkers.
Oliva
only learned of Hung's claimed disability during Hung's deposition after the
initiation of the litigation. Oliva was
not involved in the processing of Hung's leave application, he never had any
conversation with anyone about "any disability Hung may have had,"
and he "did not perceive Hung as being disabled in any way."
On
July 21, 2008, pharmacist Atmuri improperly dispensed penicillin to a patient
who was allergic to that medication.
Hung, who had caught the error, "provided management with the
detailed information necessary to complete a DFI report on that same
date." Shortly thereafter, Oliva
counseled Atmuri about his dispensing error.
Atmuri took complete responsibility and gave satisfactory responses to
Oliva's inquiries regarding proper dispensing protocol.
Also,
on July 21, 2008, appellant Hung dispensed the drug Travatan to the wrong
member. In her deposition testimony,
Hung admitted that she erred by failing to recognize that one of the
medications being picked up by a member was intended for another member. She indicated that the medications had been
taped together and she realized her mistake when the next person tried to pick
up the prescribed Travatan. She admitted
that it was her responsibility to write up a DFI report as soon as the error
occurred. Hung explained that she did
not prepare the report that night because the pharmacy was already
closing. She worked the next three days
but she did not prepare the report during that time because the medication had
not yet been returned to the pharmacy.
On
about July 25, 2008, Oliva learned from the Santa Clara member services
department that a member had spoken with a member services representative and
complained that Hung had given his prescription for Travatan to another
member. Oliva found no DFI report
documenting the error.
Hung
did not work on July 25-27, 2008. On
Monday July 28, 2008, respondent Oliva questioned Hung regarding the Travatan
error. Hung had difficulty remembering
the incident at first and then admitted that she had not prepared a DFI
report. Hung showed Oliva documents
related to the error that she had been keeping in her smock pocket and said
that she did not believe a DFI report was necessary. Based on Hung's demeanor and statements,
Oliva believed that Hung was "keeping the related documents in her smock
pocket in order to cover up her error." In her deposition, Hung admitted
that she had not yet written up the Travatan error a week after the incident.
Later,
respondent Oliva discovered that, on July 24, 2008, appellant Hung had
"filled a prescription for a drug called Proclorperazine for a patient
without first checking the patient's allergy history, which had been updated on
June 2, 2008 to reflect an allergic reaction to the medication." Another pharmacist caught the error during
the patient consultation and immediately prepared a DFI report and sent it to a
supervisor.
On
July 29, 2008, respondent Oliva met with Hung to investigate the dispensing
errors Hung had made on July 21, 2008 and July 24, 2008. Pharmacy supervisors Contreras and Velasquez
were present at the meeting. When
questioned about her dispensing errors, Hung made excuses for her
behavior. She said that she did not have
enough time to write a DFI report and said that a pharmacy clerk had taped
together two bags of medication intended for two different patients. Hung refused to take responsibility for her
errors. At the end of the meeting, Oliva
placed Hung on investigatory suspension.
After
the July 29, 2008 meeting, Oliva consulted with Ron Rich, who was Kaiser's
Employee/Labor Relations Consultant, Contreras, and Velasquez and reviewed
Kaiser policies. Oliva "determined
that based on the frequency and severity of Hung's drug furnishing errors,
together with her refusal to take responsibility for her actions and her
failure to report her own DFI that occurred on July 21, 2008, Hung's continued
employment as a pharmacist posed too high a risk to the health and safety of
Kaiser's members" and, accordingly, he concluded that Hung should be
terminated.
On
July 31, 2008, Oliva "prepared and mailed a letter to Hung stating that
she had been placed on a ten-day suspension with intent to discharge for cause due
to unsatisfactory work performance and unprofessional conduct."
Hung's
union representative requested that Hung be given the option of voluntary
retirement instead of involuntary termination in light of her many years of
employment and Oliva agreed to offer an option to retire and "health and
dental insurance coverage through the end of the year . . . ." On August 7, 2008, Oliva and others met with
Hung. Hung signed an agreement entitled,
as revised, "Resignation (Retirement) Agreement and General Release."
In
her declaration, Debra Contreras-Whaley ("Contreras") stated the
following facts. Contreras had been
employed by Kaiser for over 20 years and she was employed by KFHP as an
outpatient pharmacy services supervisor at the Santa Clara Medical Center
outpatient pharmacy from June 23, 2008 to April 23, 2011. In early July 2008, she received appellant
Hung's application for FMLA leave to retroactively cover June 27, 28, and 29 of
2008. On July 11, 2008, the FMLA leave
was approved. Contreras was "never
aware" of the medical condition or conditions underlying Hung's leave
request and never provided "any information regarding her medical
condition(s) to anyone."
Contreras
was present during the July 29, 2008 meeting with appellant Hung, respondent
Oliva, and Velasquez. Conteras observed
that appellant Hung "did not take responsibility for her drug furnishing
errors, and did not express any remorse for the risks they posed to
patients." Hung did not complain
that she was being singled out because of her age, gender or any disability.
On
August 8, 2008, Contreras was copied on an email from Hung in which she
indicated she was revoking the agreement that she had signed on August 7, 2008
and she wanted to take a normal retirement.
Contreras "prepared and processed 'termination due to retirement'
paperwork for [appellant Hung] on August 11, 2008."
Susan
Velasquez stated in her declaration that she is an outpatient pharmacy services
supervisor at the Santa Clara Medical Center outpatient pharmacy. She attended the July 29, 2008 meeting with
Hung.
C.
Judgment
Hung
submitted her declaration and portions of her deposition testimony, which
reflected the following.
Hung
began her employment with Kaiser in 1976.
Long before Oliva arrived at the Santa Clara Kaiser facility, Hung told
both of her direct managers, Kelvin Chan and Jean Damasco, that she had a TMJ
problem. They were the main people in
the pharmacy who knew she had a TMJ problem.
She stated that her days off were usually due to a TMJ problem.
In
2008, Hung was working at the main pharmacy located on the first floor.
As
to the first medication-related incident involving a patient's allergy, Hung
recalled suggesting to the patient that she take the medication upstairs and
tell the prescribing physician to put a notation about her red dye allergy into
"Health Connect." She
indicated that she made that suggestion because it would be faster than calling
the doctor from the pharmacy and awaiting a return call. Hung "did not believe that allowing the
member to leave the pharmacy to go up to her doctor's office would endanger the
patient because the patient already knew she was allergic to the red-dye and
would not take the medication."
Hung stated that she did not "knowingly allow the member to leave
the Kaiser facility with the amoxicillin red-dye medication." Hung denied telling the patient to take the
medication and, if there was a problem, to go to the emergency room.
As
to the second incident involving the recommendation to use Hydrocortisone on an
open foot wound, Hung denied that it ever happened. She asserted that she never counseled a
Kaiser member to purchase and apply Hydrocortisone to an open foot wound.
As
to the third incident, the dispensing error concerning Travatan, Hung
understood within minutes that she had given the prescription to the wrong
person. In her deposition testimony, she
explained that the Travatan prescription and another prescription had been
taped together by another employee. Hung
talked to the patient's husband, who had picked up the medication for his wife,
that same evening and arranged for him to return the medication to the
pharmacy. She learned during her phone
call that the medicine was still sealed and unopened.
Hung
scribbled notes regarding the incident on a piece of paper. She had been too busy serving patients on
June 22, 2008 to prepare a DFI form. By
the third day after the incident, Hung had partly filled out the form. She kept her notes in her smock pocket. Hung asserted that she "was not
attempting to hide the Travatan incident" and she "had every
intention of documenting the Travatan incident so that a DFI could be
completed . . . ."
As
to the fourth incident, Hung stated that the "July 24, 2008 incident was
not a dispensing error as described by company policy because the medication
never left the control of the pharmacy personnel . . . ."
Prochlorperazine prescription that "said, 'Do not sell until pharmacist
consults with the patient first.' "
She indicated that when a patient's allergy profile in the computer
system fails to specify an allergic reaction, "pharmacists have NO control
over this patient allergy profile unless the patient goes to the consultation
pharmacist who can review the patient profile."
Oliva
admitted at his deposition that the only source of information regarding the
Hydrocortisone incident was the pharmacy manager Ghezabat. He never met with the Kaiser member or the
member's agent.
Oliva
acknowledged that Hung informed him that she had called the patient who had
left with the Travatan. Oliva believed
that action was appropriate.
Oliva
admitted in his deposition testimony that, the previous Tuesday, Velasquez had
notified him in person of another employee's family leave application. But he stated that such notification was not
typical.
At
the time of Oliva's deposition in April 2011, Atmuri was working at Kaiser
Permanente South San Francisco facility as an outpatient pharmacy operations
manager. In 2008, Atmuri was a
pharmacist in charge. An outpatient
pharmacy operations manager is a higher position than a pharmacist in charge.
In
her deposition, Jean Damasco indicated that she was the evening supervisor at
the main pharmacy in Santa Clara and Hung and Tran were among those who
reported to her in 2008. Hung had
confided to her about health issues.
During conversation, Hung would mention if her TMJ problem or her back
was bothering her or she felt a little dizziness.
Damasco
indicated that DFI reports are written up by the person who discovers the error
and are entered online. But not every
staff pharmacist has online access to fill out DFI reports but blank, hardcopy
forms are available. Damasco considers
it sufficient for a person to leave her written information about a dispensing
error on a piece of paper. At a minimum,
the problem and the patient should be identified so that the DFI can be
resolved immediately. Damasco inputs the
DFI information into the computer, prints out a hard copy, and keeps it in a
binder.
In
2008, Damasco did not notice a difference in Hung's work performance compared
to previous years. At that time, Damasco
felt that Hung was still a competent pharmacist.
Kelly
Tran in her deposition recalled that there were times when she did not fill out
the formal DFI form. Tran would write
the important information on a piece of paper because she did not have enough
time, Tran would put the paper into Damasco's box, and Damasco would enter the
information into the computer.
Tran
remembered that, in 2008, Hung asked her to fill a prescription again because
appellant had just given the medication, which she recalled was an eye drop, to
the wrong patient. Tran saw Hung calling
the patient; Hung informed Tran that she had instructed the patient to bring
back the medication.
Tran
stated that she filed a complaint with the Department of Fair Employment and
Housing (DFEH) while working at Kaiser because she felt that she had received
"differential treatment when [she] took the FMLA [leave] to care for [her]
son." Tran felt she was being
pressured by her supervisor Jean Damasco and Chris Oliva. Damasco, who was her supervisor at the time,
was pressuring her "on the wait time" and "assigning [her] different
tasks."
III
Failure to Grant Continuance of Motion for Summary
Judgment
Appellant
Hung filed her opposition to summary judgment or summary adjudication on July
19, 2011. In a separate document
entitled "Plaintiff, Shu Hung's Evidentiary Objections," filed July
19, 2011, appellant Hung raised numerous evidentiary objections to respondents'
declarations. Appellant indicated in the
introduction to her written evidentiary objections that she was also seeking a
continuance pursuant to section 437c, subdivision (h), "to conduct the
deposition of those affiants whose testimony has not yet been obtained."
The
trial court overruled appellant's evidentiary objections for failure to comply
with California Rules of Court, rule 3.1354. That rule requires written
objections to evidence to follow one of two specified formats. The court did not expressly rule on her
requests for a continuance.
Section
437c, subdivision (h), provides: "If it appears from the affidavits
submitted in opposition to a motion for summary judgment or summary
adjudication or both that facts essential to justify opposition
stated, then be presented, the court shall
deny the motion, or order a continuance to permit affidavits to be obtained or
discovery to be had or may make any other order as may be
just. . . ."
(Italics added.)
"The
statute mandates a continuance of a summary judgment hearing upon a good faith
showing by affidavit that additional time is needed to obtain facts essential
to justify opposition to the motion.
[Citations.] Continuance of a
summary judgment hearing is not mandatory, however, when no affidavit is
submitted or when the submitted affidavit fails to make the necessary showing
under section 437c, subdivision (h).
[Citations.]" (
Cal.App.4th 246, 253-254.)
"A
declaration in support of a request for continuance under section 437c,
subdivision (h) must show: '(1) the facts to be obtained are essential to
opposing the motion; (2) there is reason to believe such facts may exist; and
(3) the reasons why additional time is needed to obtain these facts.
[Citations.]' (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623
. . . .) ' "The
purpose of the affidavit required by Code of Civil Procedure section 437c,
subdivision (h) is to inform the court of outstanding discovery which is
necessary to resist the summary judgment motion. [Citations.]" ' (Bahl
v. Bank of America (2001) 89 Cal.App.4th 389, 397
. . . .) 'It is not
sufficient under the statute merely to indicate further discovery or
investigation is contemplated. The
statute makes it a condition that the party moving for a continuance show
"facts essential to justify opposition may exist." ' (Roth
v. Rhodes (1994) 25 Cal.App.4th 530, 548 . . . .)" (Cooksey
v. Alexakis, supra, 123
Cal.App.4th at p. 254.)
In
her opening brief, appellant states that the court's "failure to even
address the merits of [her] requests for a continuance constituted an abuse of
discretion by the Trial Court because . . . section 437c(h) entitled [her] to
such a continuance." She fails to
cite to any declaration supporting her request for continuance.
As
far as we can tell, appellant Hung made no evidentiary showing that "facts
essential to justify opposition may
exist but cannot, for reasons stated, then be presented." (§ 437c, subd. (h).) Although the record does not contain an
express ruling on her request for a continuance, the court's grant of summary
judgment implies a denial. (See
627, 634; Evid. Code, § 664.) In
light of Hung's apparent failure to support her request for a continuance under
section 437c, subdivision (h), with an affidavit or declaration, we find no
trial court error.
IV
Grant of Motion for Summary Judgment
A.
A
defendant has met the "burden of showing that a cause of action has no
merit if that party has shown that one or more elements of the cause of action,
even if not separately pleaded, cannot be established, or that there is a
complete defense to that cause of action."
(§ 437c, subd. (p)(2).) If
that burden is satisfied, "the burden shifts to the plaintiff . . . to
show that a triable issue of one or more material facts exists as to that cause
of action or a defense thereto." (
A
court grants a motion for summary judgment "if all the papers submitted
show that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." (§ 437c, subd. (c).) In determining whether a triable issue of
material fact exists, the court must "consider all of the evidence set
forth in the papers, except that to which objections have been made and
sustained by the court, and all inferences reasonably deducible from the
evidence, except summary judgment may not be granted by the court based on
inferences reasonably deducible from the evidence, if contradicted by other
inferences or evidence, which raise a triable issue as to any material
fact." (Ibid.)
Credibility
questions ordinarily cannot be resolved on summary judgment. (Miller
v. Department of Corrections (2005) 36 Cal.4th 446, 476; see § 437c,
subd. (e).) A court must deny a
defendant's motion for summary judgment, "if the court concludes that the
plaintiff's evidence or inferences raise a triable issue of material fact
. . . ." (
25 Cal.4th 826, 856.) "But, even
though the court may not weigh the plaintiff's evidence or inferences against
the defendants' as though it were sitting as the trier of fact, it must
nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact." (Ibid.)
"We
review the trial court's decision de novo, liberally construing the evidence in
support of the party opposing summary judgment and resolving doubts concerning
the evidence in favor of that party. (
Cal.4th 1028, 1037 . . . .)" (State
v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018.)
B.
1.
Treatment
Appellant
Hung claims that triable issues of material fact exist as to whether
respondents discriminated against her on the basis of her disability, gender,
and age. FEHA prohibits employment
discrimination based on, among other criteria, physical disability, mental
disability, gender, or age.
name="_ftnref6" title="">[6] (Gov. Code, § 12940, subd. (a).) "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.]" (Guz v.
Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354, fn. omitted.) " 'Disparate treatment' is
or more persons on prohibited grounds.
[Citations.]" (
That
three-stage test, which was established in McDonnell
Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817], "places on
the plaintiff the initial burden to establish a prima facie case of
discrimination." (
the outset the most patently meritless claims, as where the plaintiff is not a
member of the protected class or was clearly unqualified, or where the job he
sought was withdrawn and never filled.
[Citations.] While the
plaintiff's prima facie burden is 'not onerous' [citation], [a plaintiff] must
at least show ' "actions taken by the employer from which one can
infer, if such actions remain unexplained, that it is more likely than not that
such actions were 'based on a [prohibited] discriminatory
criterion. . . .'
[Citation]." [Citation.]'
[Citation.]" (
case may vary depending on the particular facts. [Citations.]
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, such as termination, demotion, or denial of an available
job, and (4) some other circumstance suggests discriminatory motive. [Citations.]" (Id.
at p. 355.)
"If,
at trial, the plaintiff establishes a prima
facie case, a presumption of discrimination arises. [Citations.]
This presumption, though 'rebuttable,' is 'legally mandatory.'
[Citations.] Thus, in a trial, '[i]f the
trier of fact believes the plaintiff's evidence, and if the employer is silent
in the face of the presumption, the court must enter judgment for the plaintiff
because no issue of fact remains in the case.'
[Citations.]" (
Where
a plaintiff presents a prima facie case at trial, "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.]" (Id.
at pp. 355-356.) If not discriminatory,
"true reasons need not necessarily have been wise or correct. [Citations.]" (Id.
at p. 358.) Legitimate reasons "in
this context are reasons that are facially
unrelated to prohibited bias, and which, if true, would thus preclude a
finding of discrimination. [Citations.]" (Ibid.,
fn. omitted.)
"If
the employer sustains this burden, the presumption of discrimination
disappears. [Citations.] The plaintiff must then have the opportunity
to attack the employer's proffered reasons as pretexts for discrimination, or
to offer any other evidence of discriminatory motive. [Citations.]
In an appropriate case, evidence of dishonest reasons, considered
together with the elements of the prima facie case, may permit a finding of
prohibited bias. [Citations.] The ultimate burden of persuasion on the
issue of actual discrimination remains with the plaintiff. [Citations.]" (Id
at p. 356.)
Where an employer brings a motion for
summary judgment against a plaintiff's FEHA cause of action and sets forth
competent, admissible evidence (see § 437c, subds. (b), (d)) of
nondiscriminatory reasons for a challenged employment action that are
manifestly unrelated to intentional discrimination, the employer has met its
"burden of showing that a cause of action has no merit" (§ 437c,
subd. (p)(2)). (See Guz v. Bechtel Nat. Inc., supra,
24 Cal.4th at p. 360.) The burden then
shifts to the plaintiff employee to avoid summary judgment by showing a triable
issue whether the challenged employment action was actually made on a prohibited
discriminatory basis. (
"[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." (
"While
the objective soundness of an employer's proffered reasons supports their
credibility . . . , the ultimate issue is simply whether the
employer acted with a motive to
discriminate illegally." (
appropriate case, an inference of dissembling may arise where the employer has
given shifting, contradictory, implausible, uninformed, or factually baseless
justifications for its actions.
[Citations.]" (
discrimination cannot be drawn solely from evidence, if any, that the company
lied about its reasons. The pertinent
statutes do not prohibit lying, they prohibit discrimination. [Citation.]
Proof that the employer's proffered reasons are unworthy of credence may
'considerably assist' a circumstantial case of discrimination, because it
suggests the employer had cause to hide its true reasons. [Citation.]
Still, there must be evidence supporting a rational inference that
prohibited by the statute, was the true cause of the employer's
actions. [Citation.]" (Id.
at pp. 360-361; see St. Mary's Honor
Center v. Hicks (1993) 509 U.S. 502, 516 [113 S.Ct. 2742] ["a reason
cannot be proved to be 'a pretext for discrimination' unless it is shown both
that the reason was false, and that discrimination was the real reason"].)
In
Guz v. Bechtel Nat. Inc.,
claim of age discrimination, the California Supreme Court determined that
"Guz's circumstantial evidence of intentional discrimination, even if
fully credited and technically sufficient to establish a prima facie case,
raises, at most, a weak inference of prohibited bias." (Id.
at p. 362, fn. 25.) It concluded that
"the evidence, viewed as a whole, does not give rise to a rational
inference of discrimination." (
2.
On
appeal, apellant Hung maintains that her evidence was adequate to establish a
prima facie case of disability, gender, and age discrimination under the FEHA.
A
plaintiff presents a prima facie case of discrimination on the basis of a
FEHA-protected disability by presenting evidence that "he or she (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.
(Jensen v. Wells Fargo Bank
(2000) 85 Cal.App.4th 245, 254.)" (
188 Cal.App.4th 297, 310.) A plaintiff
establishes a prima facie case of age discrimination under the FEHA by
presenting evidence that "the plaintiff (1) is over the age of 40; (2)
suffered an adverse employment action; (3) was performing satisfactorily at the
time of the adverse action; and (4) suffered the adverse action under
circumstances that give rise to an inference of unlawful discrimination, i.e., evidence
that the plaintiff was replaced by someone significantly younger than the
plaintiff. (Hersant, supra, 57
Cal.App.4th at pp. 1002-1003.)" (
facie case of gender discrimination by showing that (1) she or he was within
the protected class; (2) she or he was qualified for the position; (3) she or
he was subject to an adverse employment action; and (4) the adverse action
occurred under circumstances giving rise to an inference of unlawful discrimination. (See Guz
v. Bechtel Nat. Inc., supra, 24 Cal.4th at p. 355; see also
2009) 584 F.3d 487, 498; cf. Hall v.
County of Los Angeles (2007) 148 Cal.App.4th 318, 326-327.)
Hung
maintains that she suffered from a FEHA-protected disability, specifically a
TMJ problem. She points to her
deposition testimony indicating that she has a disability that she calls
"TMJ dysfunction" that results in dizziness, pain, and inability to
perform cognitive tasks. According to
Hung, the onset of her problem with her TMJ (temporomandibular joint) occurred
30 years ago and she was diagnosed with "TMJ" by a Dr. Awsare. But Hung acknowledged that her doctors did
not agree that "TMJ" caused her symptoms and Dr. McLean, her internal
medicine physician, had told her she had general depression. Dr. McLean had prescribed a medication
commonly known as Valium, which Hung had been taking for many years. It was Hung's understanding that the Valium
treats the "TMJ" by relaxing the muscles.
Hung
claims that she had "a number of absences in 2008 due to her disability
and applied for FMLA leave in June of 2008." She points out that during this same time,
"Kaiser began taking adverse actions against [her] because of her absences
due to her disability." She
comments that "it is strange that [she] worked for 32 years without
incident, then out of nowhere, after [she] has some absences because of her
disability and she applies for FMLA leave, she suddenly has the alleged four
errors occur." Hung asserts that
the temporal proximity of her disability absences and FMLA leave and the
adverse employment actions supports an inference of a causal connection between
them and "[l]ooking at all of the evidence in a light most favorable to
[her], she has demonstrated a prima facie case of disability discrimination
under FEHA."
Hung
also argues that she established a prima facie case of age and gender
discrimination in that she is female and over the age of 40, "she was
qualified for her position and performed capably for 32 years up until the time
of the incidents in dispute, and she was disciplined and terminated for
unsubstantiated dispensing errors."
She implies that the evidence of the employer's treatment of Tran, a
female, adds to that prima facie showing.
In
support of summary judgment, however, respondents proceeded directly to the
second stage of the McDonnell Douglas
analytical framework by offering competent, admissible evidence of the
legitimate, nondiscriminatory reasons for the disciplinary actions and decision
to terminate Hung. (See § 437,
subds. (b)(1), (d), Guz v. Bechtel Nat.
Inc., supra, 24 Cal.4th at p.
357.) This showing was sufficient to
dispel a rebuttable presumption of discrimination arising from a prima facie
showing. (See id. at p. 355.)
Consequently, in the face of respondents' evidence, it was Hung's burden
on summary judgment to additionally present sufficient evidence to raise a
triable issue whether the given reasons for the adverse employment actions were
actually a pretext for unlawful discrimination.
(See id. at pp. 360, 362,
369-370; § 437c, subd. (p)(2).)
Even assuming Hung's evidence is sufficient to establish a prima facie
case of discrimination on the basis of disability, age, and gender, the
evidence is not sufficient to avoid summary judgment.
3.
Discrimination
"By
its terms, [Government Code] section 12940 makes it clear that drawing
distinctions on the basis of physical or mental disability is not forbidden
discrimination in itself. Rather, drawing these distinctions is
prohibited only if the adverse
employment action occurs because of a
disability and the disability would not prevent the employee from performing
the essential duties of the job, at least not with reasonable
accommodation." (Green v. State
(2007) 42 Cal.4th 254, 263, latter italics added.)
Appellant
Hung asserts that there is evidence that Oliva either had direct knowledge of
her disability and the reasons given for his decision to terminate her were pretext
for disability discrimination or he was "influenced by other management
level employees . . . who knew about [her] disability and had the requisite
discriminatory animus."
a.
Pretext
Oliva's
reasons given for his termination decision could not be pretext for disability discrimination unless he actually
knew Hung had a disability. As to
evidence that Oliva knew of her disability, Hung points to her declaration in
which she states that she "told both of [her] direct managers, Kelvin Chan
and Jean Damasco, that [she] had TMJ, long before Oliva arrived at the Santa
Clara Kaiser facility." She does
not point to any evidence that this information was actually passed on to Oliva
by either Chan or Damasco or anyone else.
There was uncontradicted evidence that Oliva learned of Hung's claimed
disability only after Hung sued.
Uncontradicted
evidence shows that Contreras processed Hung's FMLA application in July 2008
and she was present during the July 29, 2008 meeting regarding Hung's
medication-related errors. But Hung
points to no evidence that Contreras had informed Oliva that Hung had applied
for or taken FMLA leave or Hung had a FMLA-protected disability, either at the
July 29, 2008 meeting or any other relevant time.
The
evidence shows that Hung applied for the FMLA leave only after being
disciplined for two medication-related errors and excessive absenteeism and her
leave request, which was granted, applied retroactively to three days in late
June 2008 for which she had not been
disciplined. Hung presented no evidence
that she had told Oliva, during the June 2008 meeting to discuss the two
disciplinary actions or at any other relevant time, that any of the nine
absences for which she was being disciplined involved a FEHA-protected
disability, a TMJ problem or depression.
Evidence
of one instance where Velasquez notified Oliva of a different Kaiser employee's
FMLA leave application is not enough to support a reasonable inference that
Velasquez notified Oliva that Hung had applied for FMLA leave or Oliva actually
knew that Hung had a disability.
Uncontradicted deposition testimony indicated that it was atypical for
Velasquez to notify Oliva of family leave applications.
In
any case, regardless of Oliva's knowledge of Hung's disability, the evidence
was not sufficient to support a reasonable inference that his proffered
legitimate reasons for his termination decision, the four medication-related
incidents and Hung's failure to report a DFI, were merely pretext for unlawful
disability discrimination. Contrary to
Hung's assertion, no discriminatory intent may be inferred from Oliva's
inconsistent treatment of her and pharmacist Atmuri for their drug furnishing
errors.
"A showing
that [an employer] treated similarly situated employees outside [an employee's]
protected class more favorably would be probative of pretext." (Vasquez
v. County of Los Angeles (9th Cir. 2003) 349 F.3d 634, 641, fn. omitted;
see also McDonnell Douglas Corp. v. Green,
supra, 411 U.S. at p. 804
["Especially relevant to [a showing of pretext] would be evidence that
white employees involved in acts against [the employer] of comparable
seriousness . . . were nevertheless retained or rehired"].) In general, "individuals are similarly
situated when they have similar jobs and display similar conduct." (Vasquez
v. County of Los Angeles, supra,
349 F.3d at p. 641.) Employees are not
similarly situated when they "did not engage in problematic conduct of
comparable seriousness . . . ." (Ibid.)
Here,
the evidence was inadequate to show that pharmacist Atmuri, who was not
terminated as a result of his dispensing error, was similarly situated to
Hung. The evidence indicated that
Atmuri's error was an isolated incident for which he was counseled and accepted
complete responsibility whereas Hung committed four separate medication-related
errors, two of which occurred after being disciplined for the initial two
mistakes, she failed to submit written DFI information concerning the Travatan
dispensing error, and she failed to accept responsibility for her errors.
Appellant
Hung also argues that a triable issue of fact exists whether Oliva's
explanation for the adverse employment actions is worthy of credence and
pretext may be inferred from the evidence casting doubt whether the four
medication-related incidents occurred as described by Oliva. The U.S. Supreme Court explained in an age
discrimination case: "Proof that the defendant's explanation is unworthy
of credence is simply one form of circumstantial evidence that is probative of
intentional discrimination, and it may be quite persuasive. [Citation.]
In appropriate circumstances, the trier of fact can reasonably infer
from the falsity of the explanation that the employer is dissembling to cover
up a discriminatory purpose. . . . Moreover, once the employer's
justification has been eliminated, discrimination may well be the most likely
alternative explanation, especially since the employer is in the best position
to put forth the actual reason for its decision. [Citation.]
Thus, a plaintiff's prima facie case, combined with sufficient evidence
to find that the employer's asserted justification is false, may permit the
trier of fact to conclude that the employer unlawfully
discriminated." (
(2000) 530 U.S. 133, 147-148 [120 S.Ct. 2097].)
As
to the first two medication-related errors, Hung refers this court to her
deposition statements, Oliva's acknowledgement in his deposition that he did
not meet with the member who complained about Hung's recommendation to use
Hydrocortisone cream, and Oliva's "refus[al] to give any credence to [her]
side of the story." She contends
that Oliva's investigation into these incidents was "shoddy."
As
to the third incident involving Travatan, Hung asserts that Oliva mischaracterized
her actions and intent. Appellant
disputes "Oliva's claim that she failed to take responsibility and
attempted to cover up the Travatan incident." Appellant points to her declaration that she
"had every intention of documenting the Travatan incident so that a DFI
could be completed" and she "was not attempting to hide the Travatan
incident." As to the fourth
incident, she maintains that it was not dispensing
error as defined by Kaiser policy.
It
is true that pretext may be demonstrated by showing that a proffered reason has
no basis in fact. (See
Cal.App.4th 1188, 1195.) "An
employee in this situation can not [sic] 'simply show the employer's decision
was wrong, mistaken, or unwise. . . .'
[Citations.]" (
(2000) 88 Cal.App.4th 52, 75.) "It
is not enough for the employee simply to raise triable issues of fact
concerning whether the employer's reasons for taking the adverse action were
sound. What the employee has brought is
not an action for general unfairness but for [unlawful]
discrimination." (
(1997) 57 Cal.App.4th 997, 1005.) To
support an inference of pretext, a plaintiff opposing summary judgment must
demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer's proffered legitimate reasons for its action
that a trier of fact could rationally find them unworthy of credence. (Ibid.)
In
this case, however, Hung presented no evidence to indicate that Oliva had lied
about receiving specific information from various persons concerning four
separate medication-related errors committed by Hung within several
months. Uncontradicted evidence showed
that Hung had refused to return medication to which the patient had an allergy
and Hung allowed her to leave the pharmacy with the medication. Uncontradicted evidence disclosed that, after
being disciplined for medication-related errors, Hung dispensed Travatan to the
wrong member and she had not submitted written DFI information to a superior
when questioned seven days later and she filled a prescription even though the
patient had an allergy to the medication.
Thus, proffered reasons for her termination had a strong basis in fact.
The
evidence does not support an inference that Oliva gave fabricated reasons for
the adverse employment actions. Hung
failed to present sufficient evidence to raise a reasonable inference that
Oliva's proffered reasons for his termination decision were actually a pretext
for disability discrimination.
b.
Cat's
Paw
Hung insists that
even if Oliva did not know about her disability, "Kaiser would still be
liable because other supervisors and managers that were aware of [her]
disability played a role in Kaiser's discrimination and termination of
[her]." She argues that respondents
cannot escape liability by claiming that Oliva had no knowledge of her
disability and he was the sole individual who made the termination decision.
Relying
upon this court's opinion of Reeves v.
Safeway Stores, Inc. (2004) 121 Cal.App.4th 95 ("Reeves"), appellant Hung states that "[a]n employee can
demonstrate causation 'by showing that any
of the persons involved in bringing about the adverse action held the requisite
animus.' [Citation.]" She is alluding to the "cat's paw"
theory of liability that this court discussed in Reeves. (See
fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected
into United States employment discrimination law by Posner in 1990. See Shager
v. Upjohn Co., 913 F.2d 398, 405(CA7).
In the fable, a monkey induces a cat by flattery to extract roasting
chestnuts from the fire. After the cat has
done so, burning its paws in the process, the monkey makes off with the
chestnuts and leaves the cat with nothing." (Staub
v. Proctor Hosp. (2011) 131 S.Ct. 1186, 1190, fn. 1 ("
the unbiased decisionmaker who is influenced to make an adverse employment
decision by the actions of a biased employee.
In
Staub, the U.S. Supreme Court
examined the "cat's paw" theory of liability and that case is
instructive. The court considered
"the circumstances under which an employer may be held liable for
employment discrimination based on the discriminatory animus of an employee who
influenced, but did not make, the ultimate employment decision." (Staub,
supra, 131 S.Ct. at p. 1189 [case arose under the Uniformed Services
Employment and Reemployment Rights Act ("USERRA"), which prohibits
employment discrimination based on membership or an obligation to serve in a
uniformed service].) The court stated
that "it is axiomatic under tort law that the exercise of judgment by the
decisionmaker does not prevent the earlier agent's action (and hence the
earlier agent's discriminatory animus) from being the proximate cause of the
harm." (Id. at p. 1192.) The court
did not "think that the ultimate decisionmaker's exercise of judgment
automatically renders the link to the supervisor's bias 'remote' or 'purely
contingent.' " (
action" must be "a causal factor of the ultimate employment action
. . . ." (
investigation relies on facts provided by the biased supervisor—as is necessary
in any case of cat's-paw liability—then the employer (either directly or
through the ultimate decisionmaker) will have effectively delegated the factfinding
portion of the investigation to the biased supervisor." (Ibid.) The high court held that "if a
supervisor performs an act motivated by antimilitary animus that is
adverse employment action, and if that act is a proximate cause of the ultimate
employment action, then the employer is liable under USERRA."
at p. 1194, fns. omitted.)
Hung
argues that Velasquez, Damasco, and Chan were aware that she had made a
disability claim in 2007. But she
improperly relies on evidence to which the trial court sustained evidentiary
objections.
title="">[9] The evidentiary ruling is not challenged on
appeal.
Hung
presented no evidence that Oliva's decision to terminate Hung was proximately
caused by another employee's act that was motivated by discriminatory
disability animus and intended to cause an adverse employment action. An inference of discriminatory intent on the
part of Chan cannot be reasonably drawn from the evidence that Hung had told Chan
at some point in time that she had a TMJ problem and Chan informed Oliva of her
excessive absenteeism, even if Chan's action "drew negative
attention" to Hung. Hung argues
that an inference of discriminatory animus may be drawn if Chan did not tell
Oliva about her disability when Chan informed Oliva of her absences. But Hung
has not submitted evidence sufficient to raise an inference that the specific
absences underlying Chan's concern were due to a FEHA-protected disability,
Chan was aware that those absences were disability-related, or Chan's actions
were motivated by discriminatory disability animus. Hung did not present any evidence that Chan,
who apparently transferred out in March 2008, influenced Oliva to take the June
2008 disciplinary actions against her or to make the decision to terminate her.
Appellant
Hung repeatedly asserts that she was absent from work "because of"
her disability. She does not, however,
point to any evidence showing that the specified absences identified in one of
the two June 2008 disciplinary actions resulted from a FEHA-protected
disability.
Even
though there was evidence that Hung shared complaints regarding a TMJ problem
and other ailments with Damasco, Hung does not point to evidence that Damasco
had shared Hung's health information with Oliva, Damasco was biased against
Hung based on any disability, or Damasco participated in or influenced Oliva's
decisions to discipline or terminate Hung.
The
mere evidence that Contreras processed ap
| Description | After Shu Hung was forced to retire from her position as a Kaiser outpatient pharmacist, a position she had held for more than several decades, she brought an action for damages. The trial court granting respondents' motion for summary judgment (Code Civ. Proc., § 437c)[1] and a judgment was entered in favor of respondents Kaiser Foundation Health Plan, Inc., ("KFHP") and Kaiser Foundation Hospitals ("KFH"),[2] and Chris Oliva, the pharmacy director who made the decision to terminate Hung. On appeal, Hung maintains that the judgment must be reversed because triable issues of material fact remain as to whether the articulated reasons for the decision to terminate her were pretext for discrimination on the basis of disability, age, and gender under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and for retaliation on the basis of her exercise of rights under the Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C., § 2601 et seq.). According to Hung, her evidence showed that the four medication-related incidents on which the termination decision was supposedly based were either fabricated or "occurred in a dramatically different fashion" than described by Oliva and, therefore, a jury should be permitted to "decide whose story is more credible." Respondents presented sufficient evidence of legitimate, nondiscriminatory and nonretaliatory reasons for the decision to terminate appellant Hung. The evidence as a whole was insufficient to support a reasonable inference that the proffered reasons were untrue or those reasons were merely a pretext for discrimination or retaliation. Accordingly, we affirm. |
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