Filed 9/23/26 Kalamas v. John Muir Health CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
ALICIA G. KALAMAS,
Plaintiff and Appellant,
A173355
v.
JOHN MUIR HEALTH, INC. (Contra Costa County
Super. Ct. No. MSC22-00088)
Defendant and Respondent.
Plaintiff Alicia G. Kalamas appeals a judgment entered in favor of
defendant John Muir Health (John Muir) on her claim for retaliation under
Health and Safety Code1 section 1278.5 and Labor Code section 1102.5. She
contends the judicial referee2 erred by finding that John Muir’s proffered
explanation for its decision not to renew her employment contract, and for
other adverse employment actions taken by John Muir, was a “legitimate,
nonretaliatory reason” for its actions. Alternatively, she argues that the
referee erred by applying the burden shifting test set forth in McDonnell
Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) to evaluate
1 Undesignated statutory references are to the Health and Safety Code.
2 By stipulation of the parties, the trial court submitted the case to
judicial reference pursuant to Code of Civil Procedure section 638,
subdivision (a) to determine all issues in the case and to report a statement of
decision to the trial court.
1
her claim under section 1278.5, and should have instead considered under
Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214–215 (Harris)
whether retaliation was a substantial factor in John Muir’s decision. We find
no prejudicial error and affirm the judgment.
BACKGROUND
In January 2022, Kalamas filed a complaint against John Muir alleging
two causes of action for retaliation.3 The following evidence was presented at
the trial conducted by the judicial referee in November 2024:
In October 2013, John Muir contracted with Kalamas to be the Medical
Director of Perioperative Medicine program. In this position, she provided
physician oversight of John Muir’s preoperative clinic, at which registered
nurses and/or nurse practitioners screened and evaluated patients scheduled
for surgery to assess if they were healthy enough to tolerate anesthesia and
surgical procedures. Nurses working in the clinic were supervised by a
hospitalist.4 Kalamas was initially contracted for several one-year terms, but
in May 2018, she entered into a three-year contract that was set to expire in
May 2021.
Under her contract, Kalamas was required to comply with John Muir’s
code of conduct, which required, among other things, that (1) she interact
with John Muir employees, medical staff members, or any other individual
with “courtesy, respect and dignity;” (2) she demonstrate interpersonal and
communication skills that enabled her to establish and maintain professional
3 Kalamas’s complaint alleged additional causes of action for
intentional infliction of emotional distress, negligence and breach of contract
and named three additional defendants. These additional claims and
defendants were dismissed prior to trial and that order is not at issue on
appeal.
4 Hospitalists are the doctors who help surgeons take care of patients
postoperatively.
2
relationships with other members of the healthcare team; and (3) she refrain
from conduct that may be reasonably considered offensive to others or
disruptive to the workplace or patient care. The contract further provided
that either party may terminate it without cause, expense, or penalty before
the end of its term on 30 days’ notice. The contract did not include an
automatic renewal clause and no notice was required from the parties for the
contract to expire at the end of its term.
Kalamas testified that in 2017, after a patient died “on induction of
anesthesia,” she discovered that John Muir did not have a glycemic order set
established for non-cardiac surgical patients, and began to investigate how
an order set could be created.5 After discussing the issue with other medical
staff, it was agreed that, until the order set was adopted, the preoperative
clinic would generate insulin orders for patients on the day of surgery
through postoperative care, and that once a hospitalist assumed care of a
patient, the hospitalist was free to modify or cancel any glycemic
management orders generated by the clinic.
Thereafter, Kalamas began to review charts of postsurgical patients on
a regular basis and discovered that a high percentage of patients were not
receiving blood glucose treatment consistent with certain published
guidelines. She believed that the poorly managed blood glucose levels of
these patients could explain why John Muir was experiencing high rates of
postoperative surgical site infections. Kalamas testified that she was
directed to send those cases to the Professional Practice Education
5 An “order set” is the terminology used to describe a specific protocol
found in the electronic medical record system. Under an approved order set,
the patient’s doctor “checks off” the items they want applied to a particular
patient and a nurse implements those items.
3
Committee (PPEC) for review, but when she did so, she felt that the
hospitalists began ignoring her emails.
In January 2019, Kalamas asked to meet with the leaders of the
hospitalists and John Muir executive leadership to address the issue of blood
glucose management. Prior to the meeting, she circulated a copy of the
Emory University Perioperative Algorithm for the Management of
Hyperglycemia and Diabetes in Non-cardiac Surgery Patients (the “Emory
protocol”), which she advocated “as a starting point for” the discussion at the
meeting. When she learned that her email had been forwarded to Taejoon
Ahn, M.D., the President/CEO of John Muir Medical Group,6 she forwarded
him some information about the cases that prompted her concerns.
Ahn emailed Kalamas the day before the meeting informing her that he
could not attend. He questioned the merits of the research behind the Emory
protocol and took exception to her assertion that the hospitalists needed
reeducation. His email continued, “Did you follow just culture approach to
adverse outcome and come to the conclusion that this is a knowledge deficit
among the hospitalists? If so, please share. I can off the top of my head
think of multiple causes for the gap in care and I wouldn’t have expected lack
of knowledge of basic pathophysiology and its treatment as root cause. If this
is just a hunch, I’d submit that this type of comment is below the line and not
helpful in trying to achieve collaborative goals.” His email concluded,
“Ultimately, we all want the same thing which is appropriate glycemic
control peri-operatively. We have complexities to deal with aside from the
science which include professional communication, MD orders governance,
6 At trial, it was explained that “John Muir Medical Group is a private
group that has historically contracted with John Muir Health for inpatient
hospitalists services, primary care services and urgent care.”
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business relationships. My expectation would be that tomorrow’s meeting
will be fruitful, use the just culture decision tree and framed from a scientific
perspective.”
Kalamas responded to Ahn that she was “not familiar with the ‘just
culture approach’ ” and asked Ahn to send her information on it. She also
stated that she was “very sorry” that Ahn was “so bothered” by her comment
regarding re-educating hospitalists but noted that her review of the cases
indicated that “none of the hospitalists acknowledged the need to provide
basal insulin to a type I diabetic.”
Ahn forwarded all of the email correspondence to Patty Haggen, John
Muir’s Executive Director of Hospital Operations. After consulting with Ahn
and other medical staff, Haggen sent an email to Kalamas’s supervisor,
Dr. Thomas Greely, asking him to have a conversation with Kalamas “about
her process, her risk of partnership with the Hospitalists if she continues to
send them emails, write SPARK[7] alerts or send cases to PPEC” because
“[w]e have to form teams and address this issue collaboratively without
blame.” In that email, Haggen reported Ahn’s concerns as follows: “Here’s
the problem: Alicia Kalamas . . . approach undermines her, she jumps to
conclusions, sends tons of emails (see below) and creates an impression with
the hospitalists that is punitive. She is unaware of ‘just culture.’ ” Ahn was
also concerned that, while Kalamas “may be correct on this issue, . . . her
manner is wrong and she has burned thru her political capital with the
hospitalists.”
At trial, Greely testified that “just culture” is a “policy and approach to
dealing with issues when they arise that is fair and just, that . . . applied
uniformly . . . to employees, medical staff,” because if “someone feels they
7 SPARK is the name of John Muir’s in-house complaint procedure.
5
have been treated unfair or unjustly, it can inhibit” them from raising safety
concerns. According to Greely, under “just culture,” it is “more appropriate to
approach . . . particular individuals with the concerns [regarding treatment
issues] instead of a more general” communication.
Greely testified that he helped lead the meeting to discuss glycemic
management that occurred the day after the email exchange. At the meeting,
there was “a verbally aggressive confrontation that happened between”
Kalamas and Dr. Yashwant Mehta, a director of the hospitalists service at
John Muir, and Dr. Anna Chang, an endocrinologist and Director of John
Muir’s Health Diabetes Services. Greely opined that neither Kalamas nor
Mehta behaved appropriately, but they came “out of the meeting with an
agreement” to move forward with a glycemic protocol and he “thought it was
a productive meeting.”
Chang testified that she felt attacked by Kalamas in the meeting and
was humiliated and in tears after the meeting. Dr. Betsy Jacobs, who was a
medical director of the hospitalists medical group at John Muir, testified that
she also had attended the meeting and opined that Kalamas demonstrated a
“level of hostility” that she was “not familiar with in the workplace.”
Following the meeting, Ahn instructed his team not to attend
administrative meetings with Kalamas and indicated that he would not
respond to her emails going forward. Kalamas testified that after the
January 2019 meeting, her orders to treat postoperative patients with high
blood glucose levels were canceled “without a clinical indication to do so.”
Starting in mid-March, various doctors began reporting incidents with
Kalamas. In late March, Ahn sent an email to Greely, among others, stating
that Kalamas was “asking for another meeting with our leadership” and that
they were “a bit at a loss as to how to relate to her. She presumes intent and
6
jumps to conclusions as well as offends most of our group members so there is
a lack of good will. We recognize that she has good points to make but they
got lost in her behavior. It’s a very bad dynamic right now.”
In a June 2019 meeting with Greely, Haggen, and others, Haggen
“expressed concerns” to Kalamas about her “communication style and how it
might be perceived by hospitalists.” Thereafter, Greely, Haggen, and
Kalamas signed an agreement under which Kalamas completed twelve, one-
hour sessions over a six-month period with a leadership coach, focusing on
how to “communicate in a way that people” could “hear” her and how to “have
a conversation in a way that brings people in rather than pushes them away.”
The coach testified that Kalamas “made every effort to learn and do things
differently.”
In September 2019, Kalamas received an email with a copy of the “new
insulin subcutaneous order set” that was to be implemented soon. Kalamas
forwarded the email to Chang and Rene Juster, a registered nurse and
inpatient diabetes educator, and copied six additional doctors and
administrators, asking that they hold off on implementing the order set until
they had “engaged all stakeholders in the process” because she did not
believe the order set was appropriate for the patients of all surgeons. Juster
responded that the order set was the result of a “multi-disciplinary” effort of
the Cross-campus Glycemic Task Force, but that they would await guidance
from Greely on how to proceed. In Kalamas’s reply, she detailed her concerns
with the order set and stated that, while she did “not doubt that this road is
paved with good intentions[,] . . . not all relevant stakeholders were at the
table when you made these decisions and releasing this order set ‘as is’ is
definitely going to result in an unmitigated disaster.” Greely responded to
Kalamas, thanking her for spelling out her concerns but advising her that
7
copying six additional individuals on the email was too broad, especially since
he and Kalamas had discussed the issue before Kalamas sent the email and
Greely had promised to follow up with her after he obtained more
information.
In October 2019, John Muir agreed to perform a liver resection surgery
on a two-year-old child. When Kalamas learned about the plan to conduct
the surgery, she was concerned because she knew the procedure was very
difficult, particularly if performed on young patients. She expressed her
concerns that John Muir did not have adequate resources to conduct the
surgery to John Muir’s Medical Director of Pediatric Anesthesia, and asked if
the patient’s parents knew there was a more appropriate place for the
surgery. According to Kalamas, the medical director told her that the
parents wanted to have the surgery performed close to home. She also
expressed her concerns to Greely, who testified that he investigated her
concerns by speaking with other medical professionals at John Muir.
Dr. Nick Mickas, who would later become John Muir’s Medical Director of
Clinical Operations after Greely retired, testified that he spoke with Kalamas
regarding the surgery prior to its occurrence and had told Kalamas that he
was also concerned about the procedure. He stated that he raised his
concerns to other staff and was told that “people felt that it was appropriate
to do the” procedure because “they felt they had what they needed.” After the
patient died during surgery, he discussed the case with Kalamas and assured
her that she had discharged her responsibility by expressing her concerns
beforehand, and that because the surgery was outside of Kalamas’s specialty,
she did not “own the outcome.” He also promised Kalamas that the case
would be reviewed, and “depending upon that review, if there were concerns
that were brought forward that ultimately [the Medical Executive
8
Committee], if they felt that something needed to be done, . . . would be the
body to take that action, because that’s ultimately the body with oversight
over our peer review process and quality in the hospital.”
In March 2020, as a result of the COVID pandemic, elective surgeries
at John Muir were cancelled. In early April 2020, John Muir wanted to
commence elective surgeries. Kalamas opposed conducting elective surgeries
at that time because patients in critical condition, such as cancer patients,
who had to be treated at the hospital were at risk of exposure to COVID.
After the orthopedic surgeons group at John Muir agreed with Kalamas and
continued to freeze elective surgeries, John Muir’s management held a
meeting to discuss the matter. After the meeting, an attendee sent Haggen
an email stating: “regarding your comments about what Alicia Kalamas said.
We need to muzzle her now on this elective surgery stuff. She is putting us in
an impossible situation. This is not leadership.”
In June 2020, Kalamas and 50 other people were forwarded a
presentation made at a recent meeting of the Glycemic Task Force. Kalamas
replied to all fifty recipients, changing the subject line to “Einstein once said
that insanity is doing the same thing over and over again and expecting a
different result.” In the email, she stated that she was “deeply saddened” to
report that John Muir “still has” registered nurses at the Concord hospital
that do not “know the difference between pre-meal and correctional Insulin.”
John Muir’s Senior Vice President and System Chief Nurse Executive, who
was copied on the email, responded: “I have taken the majority of the dozens
of recipients to who you sent this email off of my response. [¶] As a
physician leader and medical director, you have channels to voice your
frustrations or concerns and a blast email is not a professional or productive
one.” She asked Kalamas to bring her concerns about individual nurses to
9
“nursing leadership . . . rather than publically disparage our staff in a
disrespectful and condescending tone.” She concluded, “Your efforts at
glycemic management are commendable, but emails such as this are not
sending a message of collaboration or leadership. This is a very concerning
pattern for you and I frankly am at a point where I am at a loss as how else
we can support you to lead in a constructive manner.”
Around the same time, Greely and others considered terminating
Kalamas’s employment contract. They decided against it, however, because
they had recently hired a company named Optum to conduct an assessment
of the efficiency study of John Muir’s perioperative services and wanted to
receive the report before making any decisions regarding Kalamas’s
employment. Haggen suggested that if the Optum recommendation was to
restructure perioperative evaluation and management in a way that changed
Kalamas’s medical director role, they would not have to exercise
“ ‘termination stress.’ ”
Greely testified that they ultimately decided instead to let her contract
lapse without renewal in 2021 because “No. 1 we were still in the midst of
Covid. No. 2, it was to wait and see what the results of the optimization—
what the optimization recommendations were going to be about with the
program. And frankly, we didn’t have the bandwidth to deal with the
anticipated blow back, should we decide to terminate the contract at that
point, the disruption. Anticipated, I should say.”
In December 2020, Kalamas exchanged emails with Jacobs regarding
postoperative glucose orders, concluding with the following reply by Kalamas:
“Your hospitalist consult note is factually incorrect. Full Stop. It
does NOT accurately reflect the care the patient was receiving. [¶] If
nothing else this legal document would never hold up in a court of law.
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[¶] Your defensiveness and denial is of great concern which is what has
made it so difficult to for me to work with you and for us to make any
progress on this front.” At trial, Greely characterized Kalamas’s response as
“off-putting, confrontational, a bit patronizing.”
A week later, Mickas emailed several people, including Kalamas,
stating that “it is readily apparent that we think we can do a better job of
managing, tracking, monitoring and communicating around glycemic
management and control in post-surgical patients,” and that he hoped they
could “get together and strategize next steps.” Jacobs removed Kalamas from
the email chain and replied that “[w]e share your view that glycemic
management is an important aspect of post-operative management,” but that
the hospitalists had “failed to establish an acceptable working relationship
with Alicia Kalamas.” Jacobs explained: “[Kalamas] has repeatedly and
publicly criticized and humiliated the hospitalists, both individually and as a
group. . . . Her unprofessionalism has been publicly witnessed for years, and
yet, as far as we know, has been accepted with no disciplinary action or
consequence. . . . Her bullying makes intelligent disclosure impossible—there
is no safe space to discuss data, review literature or dissect cases. . . .” In
closing, Jacobs stated that she trusted that “the medical staff would
discourage [Kalamas] from poisoning our reputation in the hospital any more
than she already has” and that the hospitalists had “no plan to work with
[Kalamas] at this time.” Mickas responded that he was “aware of the history”
and wanted to “treat it as just that.” He asked Jacobs to reconsider her
position and “try one last time to make this a collective effort,” but she
refused.
In February 2021, a John Muir executive approved the extension of
Kalamas’s employment contract for six months in order to allow for
11
completion of the optimization review. Haggen, however, put a “hold” on the
extension, indicating that they were “not ready to provide this to her.”
The following month, Haggen received an email from an Optum
representative regarding a conversation she had with Kalamas about the
value of nurse practitioners (NPs) versus registered nurses (RNs) in the pre-
surgery screening process, during which Kalamas’s “tone became more
aggressive and attacking.” The representative reported that Kalamas was
condescending and ended the conversation by stating: “ ‘I am the Medical
Director and will decide we will not have RNs—only NPs.’ ” Kalamas also
sent an email to Mickas about the incident in which she wrote that the
representative “ ‘who is apparently a RN with over 20 years experience,’ ”
“ ‘was very quick to tell me in a condescending tone that the way we do things
at [John Muir] is very different than all the other hospitals that she has
consulted for.’ ” She added that she was “ ‘offended that I had to get on a call
today with an Optum consultant from my own institution, explain who I am,
and defend my clinic staffing model.’ ” Finally, she objected that Optum had
misstated Kalamas’s position as “ ‘clinic representative’ ” instead of “ ‘Medical
Director’ ” and seemed unaware that Kalamas was a physician.
Around the same time, Kalamas called Chang to express concern that
the Certified Diabetic Educators (CDEs) were practicing outside the scope of
their training because they were making recommendations regarding insulin.
She also sent an email to Dr. Irving Pike, John Muir’s Chief Medical Officer,
stating concerns that RNs working at John Muir were making
recommendations to hospitalists regarding adjustments to insulin regimens,
which Kalamas believed to be beyond the scope of their training. She stated
that she assumed John Muir had “vetted the legal ramifications of RNs
making clinical recommendations.” Pike responded that Kalamas had
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already let her “overall concerns be known,” that it was “best” to save her
comments for a meeting scheduled to occur a week later, and that it was
“difficult to get into these important matters by email.”
Four days later, Chang sent an email to Ahn, Mehta, and others,
informing them that “[o]ver these past 2 weeks, periop glycemic management
issues are escalating again with emails to senior hospital leadership,” and
that Kalamas had “target[ed] against specific diabetics educators that
[Kalamas] believes need more ‘education and training.’ ” Chang described
the communications as “public shaming” and explained that the nurses were
“beleaguered” because their “caseload . . . increased by 40% because of steroid
use for COVID patients” and they were “fearful of penalization by [Kalamas]
if there is ever ‘less than perfect’ blood glucose control within their
recommendations.”
In March 2021, Haggen scheduled a meeting with Kalamas to discuss
her efforts to notify John Muir postoperative management about issues
regarding glycemic control. In advance of the meeting, Haggen asked
Kalamas to confirm the agenda items for the meeting. In response, Kalamas
stated that the “main issue is that I do not feel supported and that [Mickas]
is useless so that when [Greely] leaves I will have zero support.” She stated
that there “is no physician leadership in general at hospital (he is not going
to like what I have to say on this) and no one holds Hospitalist accountable.”
She forwarded a communication she had with the hospitalist to Haggen as an
example of how “typical Hospitalists ‘deny and deflect,’ ” and stated that
Mickas “needs to see the BS I have been dealing with for 3 years . . . or rather
I should say the lack of progress we have made and harm patients have been
suffering for 3 years.”
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On the same day, Kalamas initiated a meeting with Cal Knight, the
President and CEO of John Muir, and Lisa Foust, the Director of Human
Resources. Kalamas testified that she requested the meeting to tell Knight
“that John Muir Health, vis-à-vis its surgical site infection data, was in the
bottom 10 percent nationally and that I was one of the people tasked with
addressing surgical site infections. And that blood glucose is known to be the
most important factor for addressing surgical site infections. That I had been
trying to implement policies and protocols, and that I had been met with
tremendous resistance by the . . . hospitalist group.” She also told him about
the January 2019 meeting and that Ahn had “implemented an embargo”
against her ever since, and as a result, she was “facing unwanted hostility”
and “was unable to get anything accomplished because it required buy-in
from the hospitalists.”
Knight testified that Kalamas told him that Mickas had blamed
Kalamas’s interactions with other physicians for John Muir’s failure to adopt
an order set and that Kalamas did not appreciate being blamed. According to
Knight, Kalamas was “was very intense” and “aggressive” when talking about
other physicians. Knight testified that Kalamas said that Ahn “had a
problem with women and surrounded himself with females or lady physicians
who were weak or meek.” Knight stated that, at one point during the
meeting, Kalamas said that “she was dealing with arrogant misogynists.”
Knight described Kalamas as “[i]ntense, articulate. Passionate about patient
care . . . but angry.” According to Knight, Kalamas “volunteered that she had
been accused of using appalling language in patient care situations or in
working with other people, and went on to say she thought it was appropriate
to use appalling language.”
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Finally, Knight testified that John Muir leadership lacked authority to
order the hospitalists to end the “embargo” against attending meetings with
Kalamas, or to require doctors and nurses to implement a particular order
set, particularly if there was disagreement as to the contents of the order set.
In April 2021, Kalamas met with several other physicians, including
Dr. Moussa Yazbeck, Chief of the Medical Staff, and informed them that Ahn
and the hospitalists had an “embargo” against working with her and that
patient safety issues she reported and attempted to remedy were being
ignored. After the meeting, Yazbeck sent Kalamas an email that ordered her
to “NOT write orders on post operative patients if the primary attending
physician is a hospitalist.”
Also in April, John Muir leadership met and agreed that John Muir
would not renew Kalamas’s contract.
In March 2025, the judicial referee issued a proposed statement of
decision finding in favor of John Muir. After considering Kalamas’s
objections, the referee issued a final statement of decision and judgment.
With respect to Kalamas’s claim under section 1278.5, subdivision (b)(1), the
referee found that Kalamas made a prima facie showing of a causal link
between the adverse employment actions she suffered and her complaints to
John Muir regarding patient care. The referee found further, however, that
John Muir established legitimate, non-retaliatory reasons for the adverse
employment actions sufficient to rebut Kalamas’s prima facie showing.
Specifically, the referee found that John Muir did not renew her contract
because her conduct had a disruptive impact on the hospital, not in
retaliation for her complaints. In rejecting Kalamas’s claim that the reasons
proffered by John Muir were pretextual, the referee concluded that “the
weight of the evidence indicates that Kalamas’s direct, confrontational, and
15
at times draconian communication style was not a good fit for the culture at
[John Muir]. The culture at [John Muir], for better or for worse, favored an
indirect approach to communication that focused on avoiding offense to the
recipients. Several colleagues reported feeling defensive and personally
offended by Kalamas’s communication style such that they avoided
interacting with her. Kalamas made some attempts to modify her style but
admitted that in her frustration with [John Muir’s] belabored process to
implement a glucose order set, she lost her temper on several occasions.
[¶] [John Muir] had a choice between keeping a physician who they
recognized was ‘brilliant,’ ‘respected . . . in the specialty of perioperative
medicine,’ and well-liked by the surgeons who utilized the hospital (as well as
her . . . clinic staff), and trying to get large numbers of [John Muir]
physicians, nurses and CDEs to work with a colleague who they found to be
‘gratuitously insulting,’ ‘bullying,’ ‘intimidating,’ ‘aggressive,’ ‘hostile,’ ‘scary,’
‘unnecessarily unkind,’ and ‘accusatory.’ ”
With respect to her claim for retaliation under Labor Code
section 1102.5, the referee found that Kalamas had not demonstrated by a
preponderance of the evidence that her protected activities were a
contributing factor in John Muir’s employment decisions. The referee found
further that, even assuming that her protected activity was a contributing
factor, John Muir would have taken the same action for legitimate,
independent reasons.
DISCUSSION
The decision of a judicial referee is treated as a judgment by the court.
(Civ. Proc. Code, § 644.) We review a judicial referee’s statement of decision
using the same rules that apply to a trial court’s statement of decision. (Id.,
§ 645; Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501,
16
513.) We review the referee’s legal interpretations of the governing statutes
de novo and the referee’s factual findings for substantial evidence. (Ibid.)
I.
Before addressing the merits of Kalamas’s arguments on appeal, we
briefly set forth the law applicable to her claims. Section 1278.5,
subdivision (b)(1)(A), prohibits a health facility from retaliating, “in any
manner, against a[n] . . . employee, member of the medical staff, or other
health care worker of the health facility because that person . . . [p]resented a
grievance, complaint, or report to the facility . . . or the medical staff of the
facility.”
The parties agree that the referee applied the McDonnell Douglas test
in resolving Kalamas’s claim under section 1278.5. That test was adopted by
the California Supreme Court as a “framework for trying claims of
intentional discrimination . . . based on circumstantial rather than direct
evidence” and was later applied by appellate courts to claims for retaliation.
(Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 710
(Lawson).) Under that test, as applied in retaliation cases, “First, a plaintiff
who seeks to rely on circumstantial evidence must establish a prima facie
case of retaliation, meaning ‘ “ ‘a plaintiff must show that she engaged in
protected activity, that she was thereafter subjected to adverse employment
action by her employer, and there was a causal link between the two.’ ” ’
[Citation.] Second, if the plaintiff has established a prima facie case, the
burden of production shifts to the employer to come forward with evidence of
‘a legitimate, nondiscriminatory reason for the adverse employment action.’
[Citation.] Third, if the employer produces substantial evidence of a
legitimate, nondiscriminatory reason, then the plaintiff bears the burden of
17
proving the reason was a pretext for impermissible retaliation.” (Id. at
p. 710; see also Harris, supra, 56 Cal.4th at pp. 214–215.)
In Harris, supra, 56 Cal.4th at page 215, the court found that the
McDonnell Douglas test is not applicable in “mixed-motives cases.” (See also
Lawson, supra, 12 Cal.5th at p. 714.) The court explained that the burden-
shifting framework set forth in McDonnell Douglas “presupposes that the
employer has a single reason for taking an adverse action against the
employee and that the reason is either discriminatory or legitimate. By
hinging liability on whether the employer’s proffered reason for taking the
action is genuine or pretextual, the McDonnell Douglas inquiry aims to ferret
out the ‘true’ reason for the employer’s action. In a mixed-motives case,
however, there is no single ‘true’ reason for the employer’s action.” (Harris,
at p. 215.) Under Harris, if an employee establishes that retaliation was “a
substantial factor motivating a particular employment decision,” the
employer may avoid liability by proving that it would have made the same
employment decision in the absence of any retaliatory motive. (Id. at p. 239.)
Labor code section 1102.5, subdivision (b) prohibits an “employer, or
any person acting on behalf of the employer” from retaliating “against an
employee for disclosing information . . . to a person with authority over the
employee or another employee who has the authority to investigate, discover,
or correct the violation or noncompliance . . . if the employee has reasonable
cause to believe that the information discloses a violation of state or federal
statute, or a violation of or noncompliance with a local, state, or federal rule
or regulation, regardless of whether disclosing the information is part of the
employee’s job duties.”
In Lawson, supra, 12 Cal.5th at page 712, the court held that the
Harris test, not the McDonnell Douglas test, applies to claims of retaliation
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under Labor Code section 1102.5. Consistent with Lawson, as set forth
above, the referee considered whether Kalamas had established that
retaliation was “a substantial factor motivating” John Muir’s adverse
employment actions and whether John Muir would have made the same
employment decision in the absence of any retaliatory motive.
II.
With respect to her claim under section 1278.5, Kalamas contends that
the referee erred by concluding that John Muir’s “culture of non-offense or
non-confrontation” was a legitimate nonretaliatory reason for her
termination. She argues that the referee’s conclusion is “fundamentally
flawed, because requiring a ‘passive indirect’ style of communication is
antithetical to the express statutory purpose of protecting whistleblowing
activity. Dr. Kalamas’ direct communication style, even her exasperation
expressed after years of non-action by [John Muir] personnel, cannot be
meaningfully differentiated from her underlying actions: the repeated
reports and complaints identifying and protesting known risks to patient
safety, particularly those involving [blood glucose] management failures.
What was offensive to [John Muir] personnel was the fact of her criticism:
that it was expressed as criticism at all, rather than couched in ‘maybes’ or
‘perhaps.’ But the statute protects reports, whether they are couched in
passive language or made—more effectively—in a directed manner.”
In her reply, she emphasizes that she is not challenging the sufficiency
of the evidence in support of the referee’s finding, but rather whether John
Muir’s proffered reason is legally cognizable in the face of her claim for
whistleblowing. She argues: “The question whether an employer’s culture of
maximizing conflict avoidance can provide a legitimate reason for taking
adverse actions against a whistleblower is a legal one. Whistleblowing is an
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inherently critical activity protected by Health and Safety Code section
1278.5. Whistleblowing is inconsistent with a corporate culture that prizes
the avoidance of criticism and confrontation. Such a culture undermines the
purpose of the statute and therefore cannot provide a legitimate non-
retaliatory basis for adverse employment actions.”
As set forth more fully above, the referee found that John Muir did not
take any adverse employment actions against Kalamas because she raised
concerns about patient safety. Rather, the referee found that leadership
determined that “Kalamas’s intensity, critical nature, and blunt style” was
not a good match for the culture at John Muir. The referee found that
Kalamas was counseled on ways to improve her relationships with her
colleagues but she “disregarded several of the suggestions made by [John
Muir].” For example, the referee found that she was “told to not escalate
issues to upper management,” but “repeatedly sent complaints about staff
members to their upper managers.” She was “also counseled to limit the
recipients of her complaints to the individuals directly involved” but
“continued to send blast emails to large numbers of staff members who were
not directly involved with the incidents at issue.”
Kalamas does not cite any authority holding that the communication
style of the whistleblower cannot be a legitimate reason for an adverse
employment action. She notes that “it is the public policy of the State of
California to encourage patients, nurses, members of the medical staff, and
other health care workers to notify government entities of suspected unsafe
patient care and conditions” (§ 1278.5, subd. (a)) and cites Armin v. Riverside
Community Hospital (2016) 5 Cal.App.5th 810, 829, for the unremarkable
proposition that section 1278.5 is intended to “protect the public, not the
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reputation of either hospitals or individual doctors.” (Italics added.) These
general principles, however, are not particularly helpful.
Kalamas argues that “[e]mployers frequently rely on concepts of culture
and collegiality as a justification for adverse employment actions,” and that
“[t]he vagueness of terms like ‘collegiality’ or ‘institutional culture,’ lends
themselves to . . . retaliation.” This argument, however, suggests that, when
such reasons are proffered by an employer, they are often a pretext for
retaliation. That possibility does not establish that the proffered reasons are
not legally cognizable nonretaliatory reasons. Here, after considering all the
evidence, the referee found that they were not pretextual: John Muir’s
actions were attributable, not to the substance of Kalamas’s criticisms or to
the fact she raised concerns, but to her “direct, confrontational, and at times
draconian communication style” and “repeated disruptive conduct.” We do
not agree with Kalamas, either as a general matter or on the record here,
that whistleblowing requires the problematic interpersonal dynamics that
characterized Kalamas’s interactions with her co-workers, such that legal
protection for the former requires legal protection for the latter.
As noted above, Kalamas does not challenge the sufficiency of the
evidence proffered by John Muir in support of its justification or in support of
the referee’s finding that the proffered reason was not pretextual. We cannot
conclude, in the face of that unchallenged factual finding, that John Muir’s
decision not to renew her contract was retaliatory as a matter of law.
III.
Kalamas contends that, even if John Muir’s proffered reason was
properly considered, the referee erred by applying the McDonnell Douglas
test to evaluate her claim under section 1278.5. She argues that this is a
mixed-motives case and that the referee therefore should have applied Harris
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and determined whether retaliation was a substantial factor motivating John
Muir’s employment decisions. John Muir responds that Kalamas forfeited
this argument because she did not raise it in the trial court. As John Muir
notes, her complaint, trial brief, proposed findings of fact and conclusions of
law, and posttrial briefs all presented her case as a pretext case and not a
mixed-motives case. Nor did she raise this issue as an objection to the
proposed statement of decision.
We need not rely on her forfeiture, however, because her claim fails for
a more fundamental reason. The referee concluded with respect to her claim
under the Labor Code as follows: “Kalamas failed to establish that her
engagement in a protected activity was a contributing factor in [John Muir’s]
actions that constituted adverse employment actions. Accordingly, Kalamas
failed to prove that [John Muir] violated California Labor Code § 1102.5.
Even assuming arguendo that her protected activity was a contributing
factor, [John Muir] established by clear and convincing evidence that it would
have taken the same action for legitimate, independent reasons even if she
had not done so.”
On appeal, Kalamas does not challenge the sufficiency of the evidence
in support of these factual findings by the referee.8 The referee’s
unchallenged factual finding that retaliation was not a contributing factor to
8 Rather, she reasserts her argument that John Muir’s “so-called
culture is itself an anti-whistleblowing construct” and argues that the referee
therefore erred in relying on this reason to conclude that John Muir “would
have discharged Dr. Kalamas regardless of her complaints and reports.” In
light of our conclusion above that John Muir’s proffered justification for the
adverse employment actions taken was not invalid as a matter of law, we
reject Kalamas’s argument that her claim under the Labor Code must be
reversed on this ground.
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John Muir’s employment decisions renders the alleged failure of the referee
to apply Harris to the section 1278.5 claim harmless.
IV.
In the trial court, Kalamas argued that she suffered an adverse
employment action when she was blocked from attending an April 2021
meeting concerning blood glucose management. The referee found, however,
that John Muir did not prohibit Kalamas from attending the meeting.
On appeal, Kalamas contends that the record does not support the
referee’s finding that Kalamas was not excluded from the April 2021 meeting.
She argues that “[t]his incident, too, constitutes an adverse employment
action, and should be considered as such upon remand.” She does not argue,
however, that John Muir’s motivation with regard to this incident was
materially different from its motivation with regard to the other adverse
employment actions that referee found that Kalamas had suffered.
Accordingly, we need not decide this issue because any error is necessarily
harmless.
DISPOSITION
The judgment is affirmed. John Muir shall recover its costs on appeal.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
GORDON, J.*
* Judge of the Superior Court of California, City and County of San
Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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