Opinion
E064732
11-29-2017
SHANNON GRAY, Plaintiff and Appellant, v. PREMIER HEALTHCARE SERVICES, LLC, Defendant and Respondent.
Law Offices of Terry K. Davis, Terry K. Davis and Joseph S. Socher for Plaintiff and Appellant. Manning & Kass, Ellrod, Ramirez, Trester, Steven J. Renick and Negin Iraninejadian; Jackson Lewis and Elizabeth H. Murphy, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1404934) OPINION APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge. Affirmed. Law Offices of Terry K. Davis, Terry K. Davis and Joseph S. Socher for Plaintiff and Appellant. Manning & Kass, Ellrod, Ramirez, Trester, Steven J. Renick and Negin Iraninejadian; Jackson Lewis and Elizabeth H. Murphy, for Defendant and Respondent.
Plaintiff and appellant Shannon Gray (Gray) appeals from a summary judgment on her complaint, alleging violations of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.) based on the failure of her former employer, defendant and respondent Premier Healthcare Services, LLC., (Premier), to reinstate her to her former position when she attempted to return to work following pregnancy disability leave (PDL). We affirm the judgment.
I. PROCEDURAL AND FACTUAL BACKGROUND
The facts are taken from the separate statements of material fact and the evidence cited therein (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 303, fn. 1) and are stated in the light most favorable to Gray, the party opposing the motion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
Premier is a healthcare staffing agency that provides in-home nursing care for disabled patients (also referred to as clients). On April 7, 2011, Premier entered into a Medi-Cal Provider Agreement (Medi-Cal Agreement) with the California Department of Health Care Services (DHCS), in order to participate as a provider in the Medi-Cal program. On December 5, 2011, Premier entered into a Health Insurance Benefits Agreement with the Centers for Medicare and Medicaid Services (Medicare Agreement), in order to participate as a provider in the Medicare program. As further discussed below, the Medi-Cal Agreement and the Medicare Agreement require Premier to comply with a plethora of state and federal regulations related to patient care as a condition of being a licensed provider of care under Medi-Cal, Medicare, and Medicaid.
As a licensed home healthcare agency, Premier must comply with title 22 of the California Code of Regulations pertaining to licensing requirements for home health agencies. (Cal. Code Regs., tit. 22, § 74743.) Under title 22, patients have the right to "participate in the planning of the care." (Cal. Code Regs., tit. 22, § 74743, subd. (c)(2).) Also, patients must receive notice of any rights they are entitled to when obtaining services from a licensed home health agency. (Cal. Code Regs., tit. 22, § 74743, subd. (a)(1).) Premier created and disseminates to all clients a "Patient's Bill of Rights," which guarantees its patients the fundamental "right to choose a health care provider." In accordance with title 22, and the "Patient's Bill of Rights," if a client states that he or she does not want a particular Premier employee to provide care in his or her home—for whatever reason—Premier honors that choice and removes that employee. Failure to honor a patient's right to participate in the planning of care may jeopardize Premier's ability to continue operating as a Medi-Cal, Medicare, and Medicaid approved provider of services.
"30. The right to voice grievances/complaints regarding treatment or care, lack of respect of property or recommend changes in policy staff, or service/care without restraint, interference, coercion, discrimination, or reprisal."
Because of the varying needs and schedules of its clients, Premier schedules its home healthcare or nursing staff on an as-needed basis. Nurses are not promised any specific length or consistency of work. A Premier nurse may work for one client on a full-time basis, may work for several clients intermittently, or may have no assignment at all for a period of time. Regardless of a nurse's assignment status, he or she is still considered employed by Premier as long as his or her name is on Premier's "'Nurse Roster.'" When Premier has a case to staff, it consults its Nurse Roster to find a nurse whose skills, schedule, and location match up with the patient's needs, schedule, and location. At that point, Premier will send the nurse to the client's home for an interview so that the family may either approve or disapprove of the nurse. It is the family's right to choose who cares for their loved one.
Gray became employed with Premier in September 2012, but did not immediately receive an assignment, and thus, she continued working for "24-7 Home Health," where she had worked between September 2012 and spring 2013. In April 2013, she began her first assignment of caring for J.V., the disabled daughter of A.M. ("Riverside assignment"). Before starting the Riverside assignment, Gray met with A.M. for approval. A.M. had and continues to have the right to choose her daughter's nurse: "It's my daughter. I choose who takes care of her." In exercising this right, A.M. has "turn[ed] away more nurses than [she has said] yes to." A.M. approved of Gray, and her schedule was set for Monday through Friday, 6:00 a.m. to 2:00 p.m. Gray was paid $18 per hour. Other nurses also helped care for J.V., including Natalie Edwards, a nurse who worked the weekend shift.
In June or July 2013, Gray informed Premier that she was pregnant, and she began her PDL on November 1, 2013. A.M. interviewed nurses for Gray's shift, and rejected two before choosing Edwards (the weekend nurse). In late 2013, Gray told Premier that she would be ready to return to work on January 6, 2014. When Premier advised A.M. that Gray was returning, A.M. informed Premier that she wanted to keep the schedule as it was, with Edwards working the weekday shift. A.M. liked Gray but "preferred [Edwards]" for the weekday shift.
Premier honored A.M.'s preference and did not reassign Gray to the weekday shift. A.M. was not opposed to Gray working on the weekends, and Premier was prepared to offer Gray 40 hours per week comprised of 16 hours on the weekends at the Riverside assignment, with the remaining 24 hours at other assignments. However, Gray was not available to work on weekends. In order to accommodate Gray, Premier offered another assignment that provided the same rate of pay and hours as the Riverside assignment. The new assignment was with a family in Corona ("Corona assignment"). Gray took the Corona assignment but found it to be challenging. The position lasted only three weeks, because the patient's mother wanted "a nurse 'who had experience with ventilators.'" Gray worked sporadically thereafter. In December 2014, Gray stopped working for Premier because she did not get enough hours.
On May 9, 2014, Gray filed an administrative complaint with the California Department of Fair Employment and Housing, alleging that Premier refused to reinstate her to her same position, forcing her to quit. Immediately thereafter, she was issued a right to sue notice on her claim. On May 13, 2014, Gray filed her civil complaint against Premier alleging gender discrimination based on pregnancy. On April 24, 2015, Premier moved for summary judgment. The trial court granted the motion and entered judgment in favor of Premier on September 17, 2015. Gray filed notice of appeal on October 26, 2015.
II. DISCUSSION
Gray claims Premier's motion for summary judgment was erroneously granted because she presented sufficient evidence to raise triable issues of fact on her causes of action. She claims she made a sufficient evidentiary showing that Premier failed to return her "to the exact same position she held" prior to PDL, or in the alternative, offer her a comparable position. She also claims she presented sufficient evidence to allow a reasonable trier of fact to conclude that Premier's actions were due to her pregnancy. We conclude that Gray did not meet her burden of producing evidence showing a triable issue of fact that Premier refused to return her to the same or comparable position, or that she was discriminated against because she was pregnant.
A. The Standard of Review.
We review orders granting motions for summary judgment de novo, applying the same rules the trial court was required to apply in deciding the motion. (Johnson v. United Cerebral Palsy/Spastic Children's Foundation (2009) 173 Cal.App.4th 740, 753.)
A defendant moving for summary judgment has the burden of demonstrating as a matter of law, with respect to each of the plaintiff's causes of action, that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) If a defendant's moving papers will support a finding in its favor on one or more elements of the cause of action or on a defense, the burden shifts to the plaintiff to present evidence showing that a triable issue of material fact actually exists as to those elements or the defense. (Aguilar, supra, at p. 849.)
On appeal from the grant of a motion for summary judgment, we independently determine whether there are any triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We consider all of the evidence set forth in the moving and opposition papers, together with inferences reasonably deducible from the evidence, and we view the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843; Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1530.)
In a case alleging discrimination in employment, if the employer moving for summary judgment "relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. [Citations.]" (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098.) The California Supreme Court instructed that "summary judgment for the employer may . . . be appropriate where, given the strength of the employer's showing of innocent reasons, any countervailing circumstantial evidence or discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 362.)
B. Analysis.
1. Pregnancy Discrimination in Employment.
Gray's cause of action for violation of Government Code section 12945 is couched in terms of unlawful discrimination based on pregnancy: She alleges that when she returned from PDL, Premier told her that her job had been filled and then offered a few part-time hours sporadically, forcing her to quit. The FEHA provides that it is an unlawful employment practice to discharge an employee based on sex, which includes pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. (§§ 12926, subd. (p), 12940, subd. (a).) In pertinent part, section 12945 makes it unlawful for an employer "to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work, as set forth in the commission's regulations." (§ 12945, subd. (a)(1).) Nothing in the statute requires a discriminatory motive. The question to be decided, therefore, is whether defendants produced evidence which would defeat Gray's section 12945 claim, and if so, whether Gray demonstrated the existence of a triable issue of fact with respect to whether defendants' refusal to return her to the exact same position was for a permissible business reason, as they assert.
All further statutory references are to the Government Code unless otherwise indicated.
With respect to an employee's right to reinstatement following PDL, the FEHA's implementing regulations provide that the employer "reinstate the employee to the same position, or, if excused by section 7291.9, subdivisions (c)(1)(A) or (c)(1)(B), to a comparable position" (Cal. Code Regs., tit. 2, § 7291.9, subd. (a), italics added), unless "legitimate business reasons unrelated to the employee taking a pregnancy disability leave" prevents the employer from doing so (Cal. Code Regs., tit. 2, § 7291.9, subd. (c)(1)(A), italics added). Defendants asserted there was a legitimate business reason that prevented them from reinstating Gray to the Riverside assignment. Their evidence consisted of excerpts from the depositions of A.M., Gray and Andres Zamora, an employee of Premier, and declarations from Donna Zuchowski, the Director of Human Resources for Premier, and Joe Mallinger, an owner of Premier. This evidence showed that under Premier's roster system, nurses were not promised any specific length or consistency of work. Rather, they could work for one client on a full-time basis, several clients intermittently, or none at all for a period of time. Furthermore, nurses could be removed from an assignment or reassigned to a different assignment, and such change in assignment is not a termination of employment. Regarding Gray, Zuchowski stated that she was not returned to the Riverside assignment because the client preferred to keep Edwards as the weekday nurse. While the client was willing to have Gray work weekends, Gray was unavailable. Premier offered the Corona assignment to Gray as a comparable position. That assignment lasted only three weeks because the patient's mother wanted a nurse "'who had experience with ventilators.'"
Gray faults the trial court for failing to provide any substantive explanation for overruling her objections to many of the facts alleged in defendants' motion. Because we review a summary judgment de novo, we are not bound by the trial court's evidentiary rulings but, if necessary, make de novo rulings on the objections as well. (See, e.g., Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 1110-1111 [reversing summary judgment, where wrongly excluded evidence indicated an issue of fact existed for trial].) We have considered the specific evidence which Gray has identified as being objectionable, along with her reasons. To the extent the evidence was objectionable, we find that it was not essential to Premier's showing of a legitimate, nondiscriminatory reason for not returning Gray to the Riverside assignment.
Defendants' evidence that their client wanted to keep the weekday schedule the same (not replace Edwards with Gray) was sufficient to meet their initial burden of producing evidence of a complete defense, i.e., that the decision not to reinstate Gray to the Riverside assignment was for a legitimate business reason unrelated to her pregnancy or her election to take PDL. Consequently, the burden shifted to Gray to produce evidence showing that a triable issue of material fact actually exists as to that defense. (Aguilar, supra, 25 Cal.4th at p. 849.)
Gray argues that she met her burden of providing evidence from which it could be inferred that Premier did not have a legitimate business reason for not returning her to the Riverside assignment. She contends the evidence consists of the following: Defendants initially stated that she was not returning to the Riverside assignment because the position had been "filled" in her absence by Edwards, and there was a need for "continuous coverage." Later, during litigation, defendants claimed that she was not returned to her position because A.M. expressed a preference for Edwards. Defendants were not legally obligated to accommodate A.M.'s preference, because the governing laws provide only for the patient's right to choose a healthcare provider, not a nurse. Zamora told Gray that A.M. "didn't want to make any changes to the schedule," there was never an issue of caregiver preference, rather, it was a scheduling issue within defendants' control. Defendants never informed A.M. that Gray had the legal right to return to the Riverside assignment following PDL, and that she wanted to do so. Alternatively, she asserts that the evidence shows that the Corona assignment was not comparable to the Riverside assignment.
Gray interprets Zamora's words of "changes to schedule" as meaning a "scheduling issue and not an issue of caregiver selection." We reject this interpretation. The evidence shows that A.M. expressed a preference of keeping Edwards in the weekday assignment.
We are not convinced that Gray's showing is sufficient to create a triable issue of fact as to whether Premier's true reason for not returning her to the Riverside assignment was unlawful discrimination based on pregnancy. Her entire argument rests on the premise that she was guaranteed the Riverside assignment permanently. However, such is not the nature of her job. By her own words, she was hired by Premier "as a home healthcare worker" providing care for patients in their homes. She was not hired to take care of any specific patient or patients because "homecare staffing is based upon the particular and varying needs of patients at any given time . . . ." A.M. did not hire Gray, nor did Gray's pay come from A.M. Moreover, Premier's clients are given the choice of their healthcare provider (such as Premier), their nurse (such as Gray), and whether or not to retain either. Gray acknowledged her Corona assignment was terminated after three weeks because the client's mother wanted a nurse "'who had experience with ventilators.'" She further admitted that "permanent positions like [the Riverside assignment] are never guaranteed." Given this evidence, Premier had no obligation to return Gray to the Riverside assignment.
Premier was not required to force A.M. to accept Gray's return when A.M. had expressed her desire to keep Edwards as the weekday nurse. Gray argues there is no legal obligation to defer to the client's preferences. We disagree. Patients have the right to "participate in the planning of the care" (Cal. Code Regs., tit. 22, § 74743, subd. (c)(2)) and Premier created a "Patient's Bill of Rights," which guarantees its patients the fundamental "right to choose a health care provider." Accepting Gray's interpretation that this language is limited to a client's right to choose a healthcare service provider, not a nurse, if a provider fails to defer to a client's preferences, the client will choose another provider. Thus, consulting with clients and accommodating their preferences is more likely to produce customer satisfaction, and happy customers are long-time customers. --------
Because the Riverside assignment was unavailable, Premier placed Gray in a comparable position, namely, the Corona assignment. This assignment provided a "[f]ull-time position[] working with a single patient during normal workweek hours (i.e. Monday through Friday)" for the same rate of pay and the same number of hours per week. Nonetheless, Gray claims that assignment was not comparable because the patient was a small child who constantly moved as opposed to a non-ambulatory adult, the patient was more physically exhausting, and the assignment was not "geographically proximate" to the Riverside assignment. Gray offered no evidence that she was hired by Premier to provide healthcare services in only a small area of Riverside County to only non-ambulatory adult patients. "Mere idiosyncrasies of personal preference are not sufficient to state an injury." (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 393 (McRae).)
2. Sex Discrimination in Employment.
Given the above, Gray's cause of action for sex discrimination also fails. "In California, an employee seeking recovery on a theory of unlawful discrimination or retaliation must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity. [Citation.] 'A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient.' [Citation.] '"[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action." [Citation.] If every minor change in working conditions or trivial action were a materially adverse action then any "action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." [Citation.]' [Citation.] The plaintiff must show the employer's retaliatory actions had a detrimental and substantial effect on the plaintiff's employment. [Citations.]" (McRae, supra, 142 Cal.App.4th at pp. 386-387.)
As noted above, the evidence shows that Gray was not subjected to an adverse employment action that materially affected the terms, conditions, or privileges of her employment. She remained on Premier's roster of nurses, and she was placed in another home, the Corona assignment, with no changes in pay or benefits.
III. DISPOSITION
The judgment is affirmed. Defendants are awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. SLOUGH
J.