Order Submitted Matter

Cal. Super. - 6th Dist.September 7, 2018

OKDOOQONU'IAUJMH NMNNNNNNNp-nt-Iv-‘h-a-IHHy-Ap-nr-A WflQm-hMN-‘OOOOQONLh-liwmfl |er f .I- _} - Supe' rCou =- " BY - I ‘I y I, _‘ DEPUTY SUPERIOR COURT OF CALIFORNIA a 3w COUNTY 0F SANTA CLARA “g“nwfie . - 0 090W“ RUTH SANKRANTHI, Case NO. 18-CV-334546 Plaintiff, ORDER RE: MOTION FOR SUMMARY JUDGMENT, OR IN THE VS. ALTERNATIVE, SUMMARY ADJUDICATION EL CAMINO HOSPITAL, Defefidant. The motion for summary judgment, or in the alternative, summary adjudication to the complaint of plaintiff Ruth Sankranthi (“Plaintiff") by defendant E1 Camino Hospital (“E1 Camino”) came 0n for hearing before the Honorable Drew Takaichi 0n August 19, 2021, at 9:00 a.m. in Department 2. 1 The matter having been submitted, the court orders as follows: Factual and Procedural Background This is an employment action for discrimination and retaliation involving Plaintiff and defendant E1 Camino. 1 The coun notes the caption on the case identifies plaintiff as “Ruth Sankrathj.” But, the opposition papers spell her name as “Ruth Sankranthi.” Therefore, the court adopts the latter spelling of Plaintiff‘s name for purposes of this order. ~ 1 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication \OOOQONLh-PUJNH NNNNNNNNNh-IHu-Ih-IH-At-l-nu-np-b OO-QQM-hWNHOKOOONJONLh-RWNHO Plaintiff was employed as a clinical documentation specialist by E1 Camino from December 5, 2016 through March 30, 2018. (Complaint at 11 5.) During Plaintiff’s employment, she complained about inappropriate and offensive comments her supervisor, Jessica Hatala (“Hatala”), made to and about her, including offensive comments about her appearance and clothing. (Complaint at 1] 8.) Thereafter, Hatala began t0 overly scrutinize Plaintiff’s performance, including criticizing and disciplining her for petty errors or when she had done nothing wrong. (Id. at 1] 9.) Plaintiff alleges her performance was the same or better than her colleagues who were not subj ect t0 criticism and discipline for their performances. (Id. at 11 10.) In March 201 8, Plaintiff became disabled due t0 complications with her pregmncy, and was taken off work by her doctor. (Complaint at 1] 11.) Plaintiff immediately informed E1 Camino of her need for leave and submitted a doctor’s note, and then followed all steps she was asked t0 take by the HR Department. (Ibid.) El Camino’s managers, including Hatala, were aware 0f Plaintiff’s need for leave due to Plaintiff‘s note and an email from E1 Camino’s disability insurance carrier, informing them of Plaintiffs leave. (Ibid.) Almost immediately afier Plaintiff went 0n leave due t0 her pregnancy complications, E1 Camino fired her. (Complaint at 1] 12.) Plaintiff filed a timely charge of discrimination with the Department of Fair Employment and Housing and received a right t0 sue within a year of filing her complaint. (Complaint at 1] 7.) I On September 7, 201 8, Plaintiff filed a complaint against El Camino alleging causes of action for: (1) discrimination; (2) violation 0f Pregnancy Disability Leave (“PDL”); (3) failure to accommodate; (4) disability discrimination; (5) retaliation; (6) failure to prevent discrimination; (7) interference with Family Medical Leave Act (“FMLA”) rights; and (8) retaliation for exercising rights to California Family Rights Act (“CFRA”) Leave. On November 8, 2018, E1 Camino filed its answer to the complaint alleging a general denial and various affirmative defenses. Case No. lS-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication Motion for Summary Judgment, or in the Alternative, Summarv Adjudication Currently before the court is a motion for summary judgment, or in the alternative, summary adjudication to the complaint by defendant E1 Camino. E1 Camino filed a request for judicial notice in conjunction with the motion. Plaintiff filed written opposition. Both sides filed evidentiary objections. Defendant El Camjno filed reply papers. A further case management conference is set for December 7, 2021. Untimely Opposition In reply, defendant E1 Camino argues Plaintiff did not file and serve a timely opposition in compliance with the Code of Civil Procedure. “An opposition to the motion shall be served and filed not less than 14 days preceding the noticed 0r continued date ofhearing, unless the court for good cause orders otherwise.” (Code Civ. Proc., § 437C, subd. (b)(2).) The hearing 0n this motion for summaryjudgnent, or in the altemative summary adjudication, was originally set for August 3, 2021 .2 Plaintiff thus was required to file and serve opposition no later than July 20, 2021. Plaintiff filed and served opposition (via email) on July 21, 2021, one day beyond the statutory deadline. The opposition is therefore untimely. Nevertheless, defendant El Camino does not identify any prejudice upon receipt 0f the opposition. In fact, E1 Camino filed and served reply papers with substantive arguments addressing the opposition. As a consequence, the court will overlook this procedural defect and consider the merits 0f the opposition. Separate Statement of Additional Facts In reply, defendant E1 Camino urges the court to disregard Plaintiff‘s Separate Statement ofAdditional Facts as most 0fthese material facts are not referenced in the opposition. (See Teselle v. McLaughlin (2009) 173 Cal.App.4th 156, 171 [It is within the court’s discretion t0 refuse t0 consider evidence not referenced in the opposition papers].) The court however will consider a1] evidence set forth in the papers except that to which obj ections have been made and sustained. (See Code Civ. Proc., § 437e, subd. (0).) This involves a review 0f Plaintiff’s 2 The court, on its own motion, continued the matter to August 19, 2021. 3 Case No. l8-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication \OW‘QQMJLLJJN-I NNNNNNNNNHr-‘Hp-t-IHHHHH OOleLh-hUJN-‘ODOOQGUIJLWNHO opposition papers, including the Separate Statement 0f Additional Facts, t0 determine if there is any triabIe issue 0f fact to defeat the motion. Plaintiff’s Evidentiary Objections In opposition, Plaintiff objects to the Hatala Declaration and Exhibits C through E attached to it because the declaration is unsigned. A declaration that fails t0 comply with the requirements of Code 0f Civil Procedure section 2015.5 cannot be used as an evidentiary document to support 0r oppose a summary judgment motion. (See Via View, Inc. v. Retzlafl (2016) 1 Cal.App.5th 198, 217 [unsigned declaration as required by section 2015.5 has n0 evidentiary value]; Kulshrestlza v. First Um'on Commercial Corp. (2004) 33 Ca1.4th 601, 601- 611 [declaration that does not comply with section 2015.5 is not sufficiently reliable to be admitted into evidence].) As a preliminary matter, evidentiary objections must be accompanied by a proposed order that complies with the requirements set forth in California Rules of Court, rule 3. 1354(0). The rule requires an obj ecting party t0 file two separate documents, objections and a separate proposed order, both in one 0f the approved formats set forth in the rule. (S ee Cal. Rules 0f Court, rule 3.1354(b) and (0).) Here, Plaintiff fails t0 comply with the rule as she did not submit a proposed order as required by the rules 0f court. Accordingly, the court is not obligated t0 rule 0n the objections based on the above-described defect. (Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty t0 rule 0n evidentiary objections presented in proper f0rmat].) Nevertheless, the court OVERRULES the obj ections as the Hatala Declaration submitted With the moving papers and filed with the court is signed by the declarant. During the hearing on the motion, Plaintiff also raised oral objections to the Hatala Declaration at paragraphs 6-23 on the grounds 0f lack 0f personal knowledge, hearsay, and lack of authentication. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531-532 [oral objections made at the hearing on a motion for summary judgment are perrnissible].) The Hatala declaration demonstrates it was made with personal knowledge and thus the court OVERRULES that objection. (See Hatala Decl. at 11 1.) In addition, the entirety ofparagraphs 6-23 in the 4 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, 0r in the Alternative, Summary Adjudication ONOOOxJOLthLHNp-a NNNNNNNNNr-‘r-Ir-Ip-In-IHp-nr-‘HH OO‘QONm-hLHNHODOO‘lem-fiWNH Hatala Declaration are not subject t0 objections based on hearsay and lack 0f authentication and Plaintiff has not identified specific portions of those paragraphs which may be objectionable. As a consequence, the court OVERRULES those objections as well. El Camino’s Evidentiary Objections In reply, defendant E1 Camino filed evidentiary objections to Plaintiff‘s declaration. The court SUSTAINS Objection Nos. 4, 6, 7, 9-13, 15-17, 25, 26 and 29. The court OVERRULES Objection Nos. 5, 8, 14, 18-24, and 27-28. The court declines to address the remaining objections as they are not material t0 the outcome 0f the motion. (See Code Civ. Proc., § 437C, subd. (q) [in granting or denying a motion for summary judgment 0r summary adjudication, the court need rule only 0n those objections t0 evidence that it deems material to its disposition of the motion].) EI Camino’s Request for Judicial Notice In support of the motion, defendant E1 Camino requests judicial notice of the complaint in this action. (See Request for Judicial Notice at Ex. A.) The court however must necessarily consider the complaint in addressing the motion for summary judgment as issues raised by the motion are framed by the pleadings. (See Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.AppAth 644, 653 [trial court’s first step in ruling upon a summary judgment motion is to identify the issues framed by the pleadings]; see also Knapp v. Doherty (2004) 123 Ca1.App.4th 76, 84 [The pleadings detenninc the issues t0 be addressed by a summaryjudgment motion and the declarations filed in connection with such motion must be directed to the issues raised by the pleadings.].) The court therefore declines to take judicial notice 0f the complaint. (S ee Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Ca1.4th 739, 748, fn. 6 [a court need not take judicial notice 0f a matter unless it “is necessary, helpful, or relevant”].) Accordingly, the request for judicial notice is DENIED. Legal Standard Any party may move for summary judgment. (Code of Civ. Proc., § 4370, subd. (a); Aguilar v. Atlantic Richfield C0. (2001) 25 Cal.4th 826, 843 (Aguilar).) The motion “shall be Case N0. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication OOOONJONm-hUJN-I NNNNNNNNNfl-lp-Ib-In-np-Ip-nr-Ip-In-a OO‘sJOLll-bUJNflOCOONJQM-bUJNH granted if all the papers submitted show that there is n0 tn'able issue as t0 any material fact and that the moving party is entitled t0 ajudgnent as a matter oflaw.” (Code of Civ. Proc., § 437C, subd. (c); Aguilar, supra, at p. 843.) The object of the summaryjudgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, at p. 843.) The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue 0f material fact. . .” (Aguilar, supra, 25 Ca1.4th at p. 850; see Evid. Code, § 110.) “A prima facie showing is one that is sufficient to support the position 0f the party in question.” (Aguilar, supra, at p. 85 1 .) If the moving party makes the necessary initial showing, the burden of production shifis t0 the opposing party to make a prima facie showing 0f the existence 0f a triable issue ofmaterial fact. (Code of Civ. Proc., § 437C, subd. (p)(2); see Aguilar, supra, 25 Ca1.4th at p. 850.) A triable issue 0f material fact exists “if, and only if, the evidence would allow a reasonable trier 0f fact to find the underlying fact in favor 0f the party opposing the motion in accordance with the applicable standard ofproof.” (Aguilar, supra, at p. 850, fn. omitted.) Ifthe party opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.) Throughout the process, the trial coun “must consider all of the evidence and all 0f the inferences drawn therefrom.” (Aguilar, supra, 25 Ca1.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.) Similarly, “[a] party may seek summary adjudication 0n whether a cause of action, affirmative defense, or punitive damages claim has merit 0r whether a defendant owed a duty to a plaintiff. A motion for summary adjudication. . .shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Ca1.App.4th 625, 630, internal citations and quotation marks omitted.) First Cause 0f Action: Discrimination In reviewing moti0ns for summary judgment/adjudication in employment discrimination cases, California courts employ the burden-shifiing formula first articulated by the U. S. Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication OKOOO\J0\U1#UJI\Jv-- NNNNNNNNNr-It-Iv-HHH-np-HH WQQMhWNHOCOONQM¥UJNH Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). (See King v. United Parcel Service (2007) 152 Cal.App.4th 426, 433, fn.2; see also Scotch v. Art Institute ofCalifor-nia (2009) 173 Cal.App.4th 986, 1004 (Scotch).) Under McDonnell Douglas, 0n a motion for summary judgment brought against such a cause of action the plaintiff bears the burden of establishing a prima facie case of discrimination, and the burden then shifis to the employer t0 offer a legitimate, nondiscriminatory reason for the adverse employment action. (Mixon v. Fair Employment and Housing Commission (1992) 192 Cal.App.3d 1306, 13 18.) “ ‘A defendant employer’s motion for summary judgment slightly modifies the order 0f these [McDonnell Douglas] showings.’ ” (Scotch, supra, 173 Cal.App.4th at p. 1005, quoting Kelly v. Stamps.com, Inc. (2005) 135 Cal. App. 4th 1088, 1097 (Kelly).) T0 prevail on its motion, the defendant employer is “required t0 show either that (1) plaintiff could not establish one 0f the [prima facie] elements 0f the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision t0 terminate plaintiff’s employment.” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, I247 (Avila), citing Kelly, supra, 135 Cal. App. 4th at pp. 1097-1098.) Plaintiff alleges she was discriminated against based 0n her gender and race/ethnicity/national origin (Indian). (Complaint at 1] 14.) She alleges the discrimination took many forms, including being subjected t0 different terms and conditions 0f employment and being terminated. (Ibid.) Plaintiff thereafier alleges more specifically that her termination was motivated by her gender and race/ethnicity/national origin in Violation 0f Government Code, section 12940, subdivision (a) et seq. (Id. at fl 15.) On summary judgment, defendant E1 Camino argues its decision t0 terminate Plaintiff was based 0n a legitimate non-discriminatory reason. In the alternative, defendant E1 Camino contends Plaintiff cannot establish a prima facie case for discrimination. Legitimate. Nondiscriminatory Reason “In an employment discrimination case, an employer may move for summary judgment against a discrimination cause 0f action with evidence 0f a legitimate, nondiscriminatory reason Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, 0r in the Alternative, Summary Adjudication \OOO‘JQLIIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for the adverse employment action. [Citation] A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding 0f discrimination. [Citation] The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that one or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone).) In support, defendant El Camino submits evidence of Plaintiffs unsatisfactory job perfonnance. (See E1 Camino’s Separate Statement 0f Undisputed Facts at Nos. 5, 6, 7, 13.) In addition to Plaintiff’s job performance, Hatala, her supervisor, had concerns about Plaintiff‘s inappropriate attire and disrespectful and distracting behavior at work. (Id. at Nos. 5, 10, 12, 13, 15.) Following several meetings with Plaintiff, Hatala, in consultation with HR, issued a Documented Verbal Counseling for Inappropriate Conduct to Plaintiff 0n September 7, 2017 warning her that she needed to improve her behavior 0r face harsher disciplinary action, including termination. (Id. at N0. 15.) On the same day, Hatala also supplied Plaintiff with a detailed performance improvement plan (“PIP”) to support her success in providing compliant and clinically appropriate queries, communicating with others in a collaborative, professional, and respectful manner, and completing daily work as assigned. (Id. at N0. 16.) The P1P was in effect for 60 days, during which time Hatala met with Plaintiff 0n a weekly basis to address areas of opportunity for improvement and to track her progress toward completing the PIP goals. (Ibid.) Despite the PIP, defendant E1 Camino contends Plaintiff continued t0 have performance issues that persisted through November 201 7. (Hatala Decl. at 1] 16.) On November 6, 201 7, Hatala extended Plaintiff’s PIP for an additional 30 days and issued a written warning t0 Plaintiff for her unsatisfactory job performance. (See El Camino’s Separate Statement 0f Undisputed Facts at No. 17.) During this extended PIP period, Hatala continued t0 have one-on-onc coaching meetings with Plaintiff approximately once a week t0 support her in meeting performance expectations. (Ibid.) Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, 0r in the Alternative, Summary Adjudication Even though Plaintiffwas able t0 briefly improve and meet the CD1 Specialist’s role’s minimum requirements, her performance soon afier began t0 decline. (Hatala Decl. at fl 17.) Given Plaintiff’s continuing failure t0 meet performance expectations and the extensive poor feedback that had been provided to her, Hatala consulted with HR 0n March 27, 2018 and decided that a further PIP would not be helpful and that it was appropriate to terminate Plaintiff s employment. (Id. at N0. 19; Hatala Decl. at fl 19.) A11 ofthe individuals who participated in the decision t0 terminate Plaintiff’s employment were female. (Ibid.) By presenting such evidence, defendant E1 Camino, as the employer, shifts the burden t0 Plaintiff t0 present evidence that E1 Camino’s decision was motivated at least in part by prohibited discrimination. (Featherstone, supra, 10 Cal.App.5th at pp. 1158-1 159.) “The plaintiff’s evidence must be sufficient t0 support a reasonable inference that discrimination was a substantial motivating factor in the decision.” (Id. at p. 1159.) “The stronger the employer’s showing 0f a legitimate, nondiscriminatory reason, the stronger the plaintiff‘s evidence must be in order to create a reasonable inference of a discriminatory motive.” (Ibid) “Although an employee’s evidence submitted in opposition t0 an employer’s motion for summary judgment is construed liberally, it ‘remains subject t0 careful scrutiny.’ [Citation] The employee’s ‘subj active beliefs in an employment discrimination case d0 not create a genuine issue of fact; nor d0 uncorroborated and self-serving declarations.’ [Citation] The employee’s evidence must relate to the motivation 0f the decision makers and prove, by nonspeculative evidence, ‘an actual causal link between prohibited motivation and termination.’ [Citati0n.]” (Featherstone, supra, 10 Cal.App.5th at p. 1159.) “T0 show that an employer’s reason for termination is pretextual, an employee cannot simply show that the employer’é decisiou was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, 0r competent. To meet his or her burden, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, 0r contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy 0f credence, and hence infer that the employer did not act for the asserted Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summaxy Adjudication OKDOOKJONUI-DUJNH b-‘b-ar-A [\JH J N N N N N N N N N '-‘ >-‘ >-. H r--* H H OO \J ON LII A DJ [\J '-‘ O \O 00 \l Q U‘I -b U non-discriminatory reasons. If nondiscriminatory, the employer’s true reasons need not necessarily have been wise or correct. While the objective soundness of an employer’s proffered reasons suppons their credibility, the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, legitimate reasons in this context are reasons that are facially unrelated t0 prohibited bias, and which, if true, would thus preclude a finding of discrimination.” (Featlzerstone, supra, 10 Cal.App.5th at pp. 1159-1 160, internal citations and quotation marks omitted.) In opposition, Plaintiff first argues there is very little admissible evidence to support the argument as the Hatala Declaration is unsigned. (See Plaintiff's Disputed Facts at Nos. 5-7, 9- 11, 13-20, 27; Plaintiff’s Evidentiary Objections.) The objections to the Hatala Declaration however are overruled for reasons stated above. Beyond that, the memorandum 0f points and authorities in support 0f the opposition offers very little, if any argument that directly addresses the issue of pretext. Finally, Plaintiff offers evidence showing that Hatala, at various times, provided Plaintiff with positive feedback regarding her work performance. (See Plaintiff’s Additional Facts Nos. 24-28.) By this evidence, Plaintiff may be attempting to show an inconsistency in E1 Camino’s decision t0 tenninate her employment t0 suppon an argument for pretext. Such an attempt however is not sufficient as E1 Camino concedes (1) Plaintiff received both positive and negative feedback and (2) there was a bn'ef period of time when Plaintiff‘s job performance improved before it declined once again resulting in termination. (Hatala Decl. at 1H 15, 17.) Therefore, based 0n the evidence submitted in opposition, the court finds Plaintiffhas not carried her burden in establishing pretext. Prima Facie Case “The specific elements of a prima facie case may vary depending 0n the particular facts.” (Guz v. Bechtel National, Inc. (2000) 24 Ca1.4th 3 17, 355.) Generally, the plaintiff must provide evidence that (1) he 0r she was a member 0f a protected class, (2) he or she was qualified for the position he or she sought or was performing competently in the position he 0r she held, (3) he 0r 10 Case No. lS-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication \DOOQQUIAUJMH NNNNNNNNNr-‘v-Iv-dr-tr-ap-AHHp-AH OOQQM¥WNHOOWNJQUTAWNHO she suffered an adverse employment action, such as termination, demotion, 0r denial 0f an available job and (4) some other circumstance suggests discriminatory motive. (Ibid) In the alternative, defendant E1 Camino argues Plaintiff cannot establish a prima facie case for discrimination. In doing so, E1 Camino concedes Plaintiff is a member 0f a protected class and suffered an adverse employment action. Spgcifically, with respect t0 the adverse employment action, defendant El Camino concedes that Plaintiff was subjected to different terms and conditions of employment as well as termination. (See Complaint at 11 I4; see also Van v. Target Corp. (2007) 155 Ca1.App.4th 1375, 1387 [“[A] summaryjudgment motion is directed to the issues framed by the pIeadings.”].) In challenging the claim for discrimination, defendant E1 Camino argues Plaintiff does not have evidence to satisfy the remaining two elements 0f the prima facie case. As stated above, defendant E1 Camino contends Plaintiff was not performing competently in her position. (See E1 Camino’s Separate Statement of Undisputed Facts at Nos. 5, 6, 7, 13.) Even if Plaintiff was performing well in herjob, E1 Camino asserts there is n0 evidence of discriminatory animus to suppon discrimination. Any such evidence consisting here 0f Hatala telling Plaintiff that she can’t “nod her head” and that Plaintiff felt discriminated against because she wore dresses rather than pants. (Id. at N0. 32.) This evidence however is not enough to establish discriminatory animus as a matter 0f law, particularly since it does not appear to be tied to any adverse employment action. (See Sem' v. Santa Clara University (2014) 226 Ca1.App.4th 830, 867 [a “stray” discriminatory remark that a court determines is unconnected to the adverse employment action is insufficient evidence of a discriminatory motive, as a matter of law, and may be wholly disregarded by the court]; Horn v. Cushman & Wakefield Western (1999) 72 Cal.App.4th 798, 809 [a stray remark is entitled to virtually n0 weight in considering whether the firing was pretextual or whether the decisionmaker harbored discriminatory animus]; see also Smith v. Firestone Tire and Rubber C0. (7th Cir. 1989) 875 F.2d 1325, 1330 [stray “remarks,...when unrelated t0 the decisional process, are insufficient t0 demonstrate that the employer relied 0n illegitimate criteria, even when such statements are made by the decision-maker in issue”].) 11 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication OOOO‘QQU‘IADJMp-a NNNNNNNNN’de-HHt-‘Hw-awfi OO‘JQm-RUJNHCDOO‘JGM-P-MNH Consequently, the court finds Plaintiff cannot establish a prima facie case for discrimination. Second Cause ofAction: Violation 0f PDL The Pregnancy Disability Leave Law, which is part 0fFEHA, requires employers to provide leave to an employee who is “disabled by preglancy, childbifih, 0r a related medical condition. . .” (Gov. Code, § 12945, subd. (a)(l).) The statute also requires employers to provide a reasonable accommodation “for a condition related to pregnancy, childbirth, 0r a related medical condition, if the employee so requests, with the advice 0f the employee’s health care provider.” (Gov. Code, § 12945, subd. (a)(3)(A).) Employers may not interfere with an employee’s attempt to seek leave 0r reasonable accommodation provided under the statute. (Gov. Code, § 12945, subd. (a)(4).) Plaintiff alleges she was pregnant and disabled and thus a member 0f a protected class pursuant t0 Government Code section 12900 et seq. (Complaint at 11 21.) Plaintiff claims defendant E1 Camino violated Pregnancy Disability Leave laws by terminating her after her PDL commenced and not returning her t0 either her prior position 0r a position comparable t0 it. (Id. at 11 24.) Defendant E1 Camino submits evidence demonstrating that it did not terminate Plaintiff’s employment because she requested leave related t0 her pregnancy. E1 Camino made the decision to terminate Plaintiff’s employment on March 27, 2018 because ofher decliningjob performance. (See E1 Camino’s Separate Statement 0f Undisputed Facts at N0. 19.) On March 28, 201 8, Plaintiff visited her Obstetrician where she was provided with a doctor’s note so she could take leave from work. (Id. at No. 23.) On March 29, 2018, Plaintiff went to E1 Carnino to drop off her doctor’s note at the HR Department. (Id. at No. 24.) To Hatala’s knowledge, Plaintiff had not informed anyone at E1 Camino that she was pregnant, and n0 one in management or HR knew she was pregnant until after she submitted her leave request 011 March 29, 201 8. (Id. at; Nos. 27, 30; Hatala Decl. at 1] 22.) Nor was Hatala aware ofPIaintift’s pregnancy when E1 Carnino finalized the decision t0 terminate her employment two days earlier 0n March 27, 2018. (Id. at No. 27; Hatala Decl. at 11 22.) Finally, Plaintiff testified that n0 one at 12 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, 0r in the Alternative, Summary Adjudication OKOOOKJQ‘JI-ALHN 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 El Camino told her she could not go on leave afier she submitted her doctor’s note and requested disability leave. (Id. at No. 25.) Based 0n this evidence, the second cause of action is not viable as defendant E1 Camino did not have knowledge 0f Plaintiff s pregnancy until after making its decision t0 terminate her employment. Even though Plaintiff disputes E1 Camino’s evidence, she does not offer any evidence in opposition t0 raise a triable issue 0f fact t0 defeat summary judgment or summary adjudication. Third Cause 0f Action: Failure t0 Accommodate FEHA makes it unlawful for an employer “t0 fail to make reasonable accommodation for the known physical. . .disability 0f an applicant 0r employee” except where the employer demonstrates that an accommodation would “produce undue hardship. . .to its operation.” (Gov. Code, § 12940, subd. (m).) A “reasonable accommodation” is any “modification 0r adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” (Scotch, supra, 173 Cal.App.4th at p. 1010.) “The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified t0 perform the essential functions 0f the position, and (3) the employer failed to reasonably accommodate the plaintiff‘s disability.” (Scotch, supra, 173 Cal.App.4th at pp. 1009-1010.) Reasonable accommodations may include “mob restricting, part-time 0r modified work schedules, reassignment t0 a vacant position. . .and other similar accommodations for individuals with disabilities.” (Gov. Code, § 12926, subd. (p).) “FEHA does not obligate an employer to choose the best accommodation or the specific accommodation of a disabled employee 0r applicant seeks. It requires only that the accommodation chosen be ‘reasonable.’ [Citation.]” (Raine v. City ofBurbank (2006) 135 Ca1.App.4th 1215, 1222.) “Two principles underlie a cause 0f action for failure t0 provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. While a 13 Case N0. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication claim of failure t0 accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Geflo v. Lockheed Martin Corp. (2006) 140 Ca1.App.4th 34, 54.) “Generally, the employee bears the burden of giving the employer notice of the disability. An employer, in other words, has no affirmative duty t0 investigate whether an employee’s illness might qualify as a disability. The employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing t0 accommodate a disability ofwhich it had n0 knowledge.” (Featlzerstone, supra, 10 Cal.App.5th at p. 1167, internal citations and quotation marks omitted.) “[A]n employer ‘knows an employee has a disability when the employee tells the employer about his condition, 0r when the employer otherwise becomes aware of the condition, such as through a third party 0r by observation. The employer need only know the underlying facts, not the legal significance 0f those facts.’ ” (Faust v. California Portland Cement C0. (2007) 150 Ca1.App.4th 864, 887 (Faust), citing Schmidt v. Safeway Inc. (D. Or. 1994) 864 F. Supp. 991, 997.) “While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed t0 the employer when the fact 0f disability is the only reasonable interpretation of the known facts. ‘Vague 0r conclusory statements revealing an unspecified incapacity arc not sufficient t0 put an employer on notice of its obligations under the [FEHA].’ ” (Featlzerstone, supra, 10 Cal.App.5th at p. 1167; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 237 (Brzmdage).) Moreover, “[e]vidence that a decision maker learned 0f a plaintiff’s disability after deciding t0 take adverse employment action is not probative 0f whether the decision maker was aware 0f the plaintiff‘s disability when he or she made the decision.” (Avila, supra, 165 Cal.App.4th at p. 1251; see andage, supra, 57 Cal.App.4th at pp. 236-237 [decision maker must be aware of disability “when the adverse employment decision was made”].) “Put simply, unless there is some evidence an employer knows an employee is suffering from a disability, it is impossible for an employee to claim he or she was discharged because of it 14 Case No. 18-CV-334546 - Order Re: Motion for Summary Judgment, or in the Alternative, Summaxy Adjudication \DOOQO‘xUI-DUJNH NNNNNNNNNHmmfir-‘h-dr-‘v-IHH OOflO‘xUI-P-LANF-‘OGOONOUI-hUJNHO 0r that an employer refused t0 accommodate the disability.” (Pensinger v. Bowsmit/z, Inc. (1 998) 60 Cal.App.4th 709, 722, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.) Plaintiff alleges she had a disability and, by submitting a doctor’s note, requested a reasonable accommodation. (Complaint at 1H] 32-33.) By terminating Plaintiff during the period when she was out 0n leave, defendant E1 Camino failed t0 accommodate Plaintiff. (Id. at 1} 34.) Like the second cause 0f action, the third cause 0f action fails as the decision by defendant E1 Camino t0 terminate Plaintiff‘s employment came before it had knowledge ofher disability. (See E1 Camino’s Separate Statement 0f Undisputed Facts at Nos. 19-3 1 .) As stated above, defendant E1 Camino decided t0 terminate Plaintiffs employment on March 27, 2018 because 0f her declining job performance. (Id. at N0. 19; Hatala Decl. at 1m 19, 22.) Yet Plaintiff did not get a doctor’s note from her obstetrician requesting that she be placed on leave until March 28, 201 8 and did not submit the note to the HR Department until March 29, 2018. (Id. at Nos. 22-24.) Moreover, Plaintiff testified She learned for the first time she was being placed 0n leave during the doctor visit 0n March 28, 2018. (Id. at N0. 23.) While Plaintiff disputes E1 Camino’s evidence, she does not offer any evidence in opposition to raise a triable issue 0f fact to defeat the motion. As Plaintiff never requested an accommodation while employed by defendant E1 Camino, the third cause 0f action fails. Fourth Cause of Action: Disability Discrimination “A prima facie case of disability discrimination under FEHA requires a showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to d0 his 0r her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because 0f the disability.” (CastrofiRamirez v. Dependable Highway Express, Inc. (2016) 2 Ca1.App.5th 1028, 1037.) “Respecting the third element, the disability must be a substantial factor motivating the employer’s adverse employment action.” (Ibid) Plaintiff alleges she had a disability and was able to perform the essential functions of her job with a reasonable accommodation. (Complaint at 1m 40-41 .) Plaintiff contends her disability 15 Case N0. 18-CV-334546 Order Re: Motion for Summaxy Judgment, or in the Alternative, Summary Adjudication IQ \OOOQONUI-DUJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _activity and the employer’s action.” (Yanowz'tz v. L ’Oreal USA, Inc. (2005) 36 Ca1.4th 1028, was a substantial factor in defendant E1 Camino’s decision t0 terminate her employment. (Id. at 1i 42.) Here, Plaintiff cannot establish a pfima facie case for disability discrimination because, a4 stated above, defendant El Camino terminated Plaintiff for her declining job performance and did so before learning about Plaintiff’s pregnancy. (See E1 Camino’s Separate Statement of Undisputed Facts at Nos. 19-3 1 .) Thus, Plaintiff’s disability was not a motivating factor in regards t0 her termination. And, even if Plaintiff could establish a prima facie case, defendant E1 Camino has provided a legitimate nondiscriminatory reason for termination and Plaintiff has not submitted evidence 0f pretext for reasons stated above. Fifth Cause 0f Action: Retaliation It is unlawful for an employer “t0 discharge, expel, 0r otherwise discriminate against any person because the person has opposed any practices forbidden under [the FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA].” (Gov. Code, § 12940, subd. (h).) “[T]he elements of such a claim are substantially the same as those for disparate treatment except that instead 0f having t0 show that the action was motivated by animus toward the plaintiff as a member 0f the protected class, the plaintiff must show that the motive was retaliatory animus.” (McCaskey v. California State Automobile Assn. (201 0) 189 Ca1.App.4th 947, 987-988.) “Like FEHA discrimination claims, FEHA retaliation claims are subject to the McDonnell Douglas burden-Shifiing framework.” (Cornell v. Berkeley Tennis Club (2017) 18 Ca1.App.5th 908, 942.) “[T]0 establish a prima facie case of retaliation under the FEHA, a plaintiffmust show (1) he 0r she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected 1042 (Yanowitz).) At trial, ifthe plaintiff establishes a prima facie case, the burden shifts t0 the employer to identify “a legitimate, nonretaliatory reason for the adverse employment action.” (Yarrowitz, supra, 36 Cal.4th at p. 1042.) The burden then “shifis back t0 the employee to prove intentional 16 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication OOWQQU‘I-PUJNH NNNNNNNMNh-‘Hr-Ih-II-AH-h-tn-AH W‘QomfiWNHocmqomJfimNH retaliation.” (Ibid) As stated above, a motion for summary judgment by the employer modifies the order of these showings. Plaintiff alleges she engaged in protected conduct, including but not limited to: complaining about discrimination, requesting protected leave time, requesting accommodation for her pregnancy-related disability, and otherwise exercising her rights under FEHA. (Complaint at 1] 48.) Plaintiff‘s protected conduct constituted substantial factors in defendant E1 Camino’s decisions t0 discipline and terminate her. (Id. at fl 49.) To the extent the retaliation claim is based 0n conduct related to Plaintiff’s request for leave 0r accommodation and her pregnancy-related disability, the cause of action fails for reasons stated above. Specifically, that defendant El Camino was not aware 0f any request for leave, accommodation, 0r disability at the time it disciplined and ultimately terminated Plaintiff’s employment. (See E1 Camino’s Separate Statement ofUndisputed Facts at Nos. 19-24.) To the extent the retaliation claim is based on Plaintiffs complaints of discrimination, defendant E1 Camino has presented evidence demonstrating that it disciplined Plaintiff and terminated her employment based 0n her declining job performance as stated above. (Id. at Fact No. 19.) Plaintiff has not submitted evidence 0f pretext for reasons stated above and thus the retaliation claim also fails. Sixth Cause of Action: Failure to Prevent Discrimination FEHA makes it unlawful for an employer “t0 fail t0 take all reasonable steps necessary t0 prevent discrimination and harassment from occum'ng.” (Govt. Code, § 12940, subd. (k).) Claims for failure to prevent unlawful harassment or discrimination, however, fail as a matter of law when n0 underlying discrimination 0r harassment occurred. (Scotch, supra, 173 Ca1.App.4th at p. 1021; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.) Here, the operative complaint does not allege an underlying cause 0f action for harassment. Therefore, there can be n0 claim for failure to prevent harassment. Also, because Plaintiff failed t0 establish any unlawful discfimination by defendant E1 Camino, her claim for failure to prevent discrimination similarly fails. 17 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication OQOO'HJan-D-UJNfl NNMNNNNMNHr-‘Hp-Ip-n-awv-tu-aw m‘dONUl-hWNHONDW‘dONLfl-ILUJNH Seventh Cause of Action: Interference with FMLA Rights The FMLA provides job security t0 employees who must be absent from work because 0f their own illnesses, to care for family members who are ill, 0r t0 care for new babies. (Bachelder v. Am. W. Airlines, Inc. (9th Cir. 2001) 259 F.3d 1112, 1119 (Bachelder).) “Congess recognized that, in an age when all the adults in many families are in the work force, employers’ leave policies ofien do not permit employees reasonably t0 balance their family obligations and their work life. The result, Congress determined, is ‘a heavy burden 0n families, employees, employers and the broader society.’ [Citati0n.] As for employees’ own serious health conditions, Congress found that employees’ lack ofjob secun'ty during serious illnesses that required them to miss work is particularly devastating to single-parent families and to families which need two incomes to make ends meet. [Citation] As Congress concluded, ‘it is unfair for an employee t0 be terminated when he 0r she is struck with a serious illness and is not capable of working.’ [Citation] In response t0 these problems, the Act entitles covered employees to up t0 twelve weeks of leave each year for their own serious illnesses or t0 care for family members, and guarantees them reinstatement after exercising their leave rights.” (Ibid) Plaintiff is pursuing a cause 0f action for interference with her FMLA rights. There are five elements for a prima facie case of interference with such rights. The employee must establish: (1) he/she was eligible for the FMLA’s protections, (2) his/her employer was covered by the FMLA, (3) he/she was entitled t0 leave under the FMLA, (4) he/she provided sufficient notice 0f his/her intent to take leave, and (5) his/her employer denied him/her FMLA benefits t0 which he/she was entitled. (White v. County ofLos Angeles (2014) 225 Cal.App.4th 690, 701.) An interference claim under the FMLA does not involve the burden-shifiing analysis articulated by the United States Supreme Court in McDonnell Douglas. (Faust, supra, 150 Cal.App.4th at p. 879.) As stated in Bachelder, “there is no room for a McDonnell Douglas type ofpretext analysis when evaluating an ‘interferencc’ claim under this statute.” (Bachelder, supra, 259 F.3d at p. 113 1 .) “A violation of the FMLA ‘simply requires that the employer deny the employee’s entitlement t0 FMLA.’ [Citation.]” (Faust, supra, 150 Cal.App.4th at p. 879.) 18 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication OKOOONJONUI-RUJNH NNNNNNMNNb-IHHH-Ar-‘p-‘t-Ip-Ap-I OOQQUl-bU-‘NV-‘OQOO‘JONLI‘I-DWNH Here, Plaintiff alleges (1) she was eligible for FMLA at the time she requested it; (2) defendant El Camino was subject t0 the requirements 0fFMLA and had a legal duty not t0 interfere with Plaintiff” s rights under the act; and (3) defendant E1 Camino violated the FMLA by terminating Plaintiff. (Complaint at 1W 59-6 1 .) The seventh cause 0f action fails for reasons stated above in connection with the second cause 0f action. 'Ihis is because defendant El Camino made the decision t0 terminate Plaintiff’s employment before receiving notice from Plaintiff that she requested leave from work. (See E1 Camino’s Separate Statement of Undisputed Facts at Nos. 19-3 1 .) In addition, defendant E1 Camino submitted evidence demonstrating that it terminated Plaintiff‘s employment based 0n her declining job performance as stated above. (Id. at Fact N0. 19.) Eighth Cause of Action: Retaliation for Exercising Rights to CFRA Leave (Govt. Code, § 12945.2) “CFRA ‘is intended t0 give employees an opportunity t0 take leave from work for certain 999 personal 0r family medical reasons without jeopardizing job secun'ty. (Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 558-559 (Bareno).) “The CFRA entitles eligible employees t0 take up t0 12 weeks ofunpaid medical leave during a 12-month period for certain personal 0r family medical conditions, including care for their children, parents, 0r spouses 0r to recover from their own serious health condition. [Citations.] CFRA’S regulations provide that, for an employee t0 be entitled t0 a medical leave for her own serious health condition, the condition must cause her t0 be unable t0 work at all 0r unable t0 perform one 0r more 0f the essential functions 0f her position. [Citation] An employee who takes CFRA leave is guaranteed that taking leave will not result in a loss ofj ob security 0r in other adverse employment actions. [Citations.]” (Neisendorfv. Levi Strauss & Co. (2006) 143 Cal.App.4th 509, 516-517, fi1. omitted.) A violation under the CFRA falls into two types 0f claims: (1) “interference” claims in Which an employee alleges that an employer denied 0r interfered with his/her substantive rights t0 protected medical leave, and (2) “retaliation” claims in which an employee alleges that he/she 19 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, 0r in the Alternative, Summary Adjudication KOOOQONUI-P-DJN-i NNNNNNNNNHHHH-A-a-a-Ap-‘p-n OONQW$WNHOQWNQUIbWNHO suffered an adverse employment action for exercising his/her right to CFRA leave. (Bareno, supra, 7 Cal.App.5th at pp. 558-559.) Plaintiff is alleging a cause of action for retaliation for exercising her fights t0 CFRA Lawa Ar&flhfim1dannnvkaMHOfmeCFRAcmmmmofmeRMOngfllflheddaflmn was a covered employer; (2) the plaintiff was eligible for CFRA leave; (3) the plaintiff exercised his 0r her right t0 take a qualifying leave; and (4) the plaintiff suffered an adverse employment action because he 0r she exercised the right to take CFRA leave.” (Clzooclzagi v. Barracuda Networks, Inc. (2020) 60 Ca1.App.5th 444, 457 (Clzooclzagi).) Unlike interference claims, CFRA retaliation claims are subject to the McDonnell? Douglas burden-shifting analysis. (Bareno, supra, 7 Cal.App.5th at p. 560; see Choochagi, suprfi, 60 Cal.App.5th at p. 458 [“While the McDonnell Douglas burden-shifting analysis does not apply t0 CFRA interference claims, it does apply t0 CFRA retaliation claims."].) Here, Plaintiff alleges (1) she was eligible for CFRA at the time she requested for time off; (2) she exercised her rights t0 CFRA leave pursuant to her treating physician’s orders; and (3) she was terminated by defendant El Camino for exercising her right t0 take CFRA leave. (Complaint at 1H] 66-68.) The eighth cause 0f actiou fails for reasons stated above in connection with the second and seventh causes of action. This is because defendant E1 Camino made the decision to tenninate Plaintiff‘s employment before receiving notice from Plaintiff that she requested leave from work. (See E1 Camino’s Separate Statement of Undisputed Facts at Nos. 19-31.) Also, (kkmmmEHkmmommeMeWfimmdmmmmmmgmmhmmmmmdM&mfik emmmmwmbwahmhadmmmgflmpmfimmmeflsmmdfiww.UdaflhaNalg) Based on the foregoing, the motion for summary judgment to the complaint is GRANTED. 20 Case N0. 18-CV-334546 Order Re: Motion for Summary Judgment, 0r in the Alternative, Summary Adjudication Qomgwm 10 11 12 13 14 15 16 17 18 19 2o 21 22 23 24 25 26 27 28 Disposition The motion for summary judgment to the complaint is GRANTED. Dated: Z; 20, ZZ f, V /', v H0/. rew Takaichi Judge of the Superior Court 21 Case No. 18-CV-334546 Order Re: Motion for Summary Judgment, or in the Alternative, Summary Adjudication SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 19 1 NORTH FIRST STREET SAN JOSE, CALIFORNLA 951 13 CIVIL DIVISION I Sanla Clara .-.- t.- - ‘r my O -‘ RE: Ruth Sankrathi vs El Camino Hospital Case Number: 1BCV334546 PROOF OF SERVICE ORDER RE: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION was delivered t0 the parties listed below the above entitled case as set forth in the sworn declaration below. If you. a party represented by you. or a witness to be calted on behalf of that party need an accommodation under the American with Disabilities Act. please contact the Court Administrator's office at (408) 882-2700. or use the Court's TDD line (408) 882-2690 or the VoicelTDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy 1n a sealed envelope. addressed to each person whose name is shown below. and by depositing the envelope with postage fully prepaid. in the United Slates Mail at San Jose, CA 0n August 20, 2021. CLERK OF THE COURT. by Farris Bryant. Deputy. cc: Maureen Elizabeth McFadden LAW OFFICES OF MARUREEN E MCFADDEN 1320 Willow Pass Rd Suite 600 CONCORD CA 94520 Geneva A Collins 275 Battery Street Suite 2000 San Francisco CA 94111 CW-9027 REV 12/08/16 PROOF OF SERVICE