Memorandum_of_points_and_authorities_in_support_of_plaintiffs_opposition_to_defendants_motion_for_summary_judgmentOppositionCal. Super. - 1st Dist.May 1, 20191 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Noah D. Lebowitz [SBN 194982] LAW OFFICE OF NOAH D. LEBOWITZ 1442 A Walnut Street, No. 452 Berkeley, California 94109 Telephone: (510) 883-3977 Facsimile: (510) 540-1057 E-mail: noah@ndllegal.com Attorneys for Plaintiff JULIE PITMAN Electronically by Supenor Court of California, County of San Mateo ON 7/22/2020 By /s/ Wai Shan Lee Deputy Clerk SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO (Unlimited Jurisdiction) JULIE PITMAN, Plaintiff, STANFORD HEALTH CARE, and DOES 1 through 10, inclusive, Defendants. Case No. 19-CIV-02407 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Date: August 14, 2020 Time: 1:30 p.m. Dept.: 4 Complaint Filed: May 1, 2019 Trial Date: None set Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 L II. TABLE OF CONTENTS INTRODUCTION Leiter eset eee ae steerer eee sate st testes eee enbeeaees 1 STATEMENT OF MATERIAL FACTS IN DISPUTE ......coceiiiiiiiniieciceeceee e 1 A. 2012 - Pitman Moves from Texas & Takes Job with Stanford Sleep Clinic ............. 1 B. April 2016 - Aimee Walter Hires Monica Mayberry as Clinic Manager................... 1 C. May 2016 - Mayberry Starts Work at the Clinic and Immediately Instructs Pitman to Engage in Improper Conduct Causing Pitman Substantial Stress.........c.cccoceeuneeee. 2 D. Early June 2016 - Pitman Complains to SHC Employee & Labor Relations............ 3 E. June - August 2016 - Mayberry Delays Procurement of Equipment Otherwise Approved for Ergonomic Adjustments to Pitman’s Workspace..........coccceeeveriennnnnee 3 F. June 9, 2016 - Mayberry’s Hostility Escalates to the Point Where Pitman’s Doctor Instructs Her to Take a Two-Week Medical Leave of Absence...........cccecevveevieennnnne. 4 G. June 12,2016 - Pitman Informs ELR that Mayberry’s Improper Conduct Caused Pithvan to: Take WISAMEEL TLEHN: vxususimsmss oss sss oss 5555555551055 5555555 55555 8585554555 555 3 H. July 7, 2016 - Pitman Tells Norwood She Wants to File a Grievance....................... 5 I. July 15, 2016 - Pitman Files Her Grievance but Norwood Does Nothing................. 6 J. August §, 2016 - Walter Joins Mayberry’s Hostile Treatment of Pitman.................. 7 K. August 2016 - Norwood Still Did Not “Get Right On It”..........ccceeviniininiiniiene. 8 L. August 24, 2016 - Mayberry Reveals Her Animus Towards Pitman......................... 8 M. August 23 to September 30, 2016 - Norwood Does Nothing in Regard to Pitman’s GIIEVAIICE «neticseee sates ee eae sate sheet esate ease ebb shee ne ene enbe este eates 9 N. September 27, 2016 - Mayberry Again Reveals Her Animus Towards Pitman........ 9 O. September 30, 2016 - Norwood “Interviews” Walter...........cceeeveevivinniienieeieeneeenen. 9 P. October 2016 - Norwood Verbally Informs Harris that She Concluded Pitman’s Allegations Were Unsubstantiated, but Never Tells Pitman ............ccccovevvveneenenn. 10 Q. November 2016 - April 2017 - Pitman Takes Medical Leave for Surgery but Returns Early Because She Fears for Her JOD ........cccoeviiiiiiiniiniiieiiceiee eee, 10 -. Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 R. April 2017 - Pitman Returns to Work to Learn that Mayberry has Promised Mark Mathis a Promotion that Threatens Pitman’s Future at the Clinic..........cccccocevveneen. 11 S. April - May 2017 - Because Mayberry’s Hostility Towards Pitman Continues And it is Clear SHC will not Support Her, Pitman Concludes She Must Resign............. 11 HE ARCGUIIVIENTT osmosis nuns sousmpssis somonssus onsen sess easss sos mss mvs aus ess sae assis sn 3 11 A. WHETHER AN EMPLOYEE’S WORKING ENVIRONMENT WAS INTOLERABLE “IS NORMALLY A QUESTION OF FACT” ....coooviiviieiieene. 11 B. SHC HAS FAILED TO SHOW IT IS ENTITLED TO JUDGMENT AS A MATTER OF TA Ws ii se nn sioncensossis io ies 5.550505 56530550 58 5680843 565040455 S400 FRB 50. 13 1. The Totality of the Circumstances Establish a Triable Issue of a “Continuous Pattern” of Adverse Working Conditions .............ccceeevieerieeieenienniienie erences 14 2. SHC’s Failure to Adequately Respond to Pitman’s Complaints Further Supports Pitman’s Constructive DiSCharge ..........cccoceeviieeiieiiiniienie c ce e e 18 IV CONCLUSION nonunion sins ssn ssa i ic 5. 450308650555, 53. R08 5 AS ER 3 20 -1 - Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 TABLE OF AUTHORITIES Cases Accardiv. Superior Court (1997) 17 Cal. App.4th 341. ...cooviiiiiiiiiieeee eee 1, 14,20 King v. AC&R Advertising (9th Cir. 1995) 65 F.3d 764, 707 c...oovveeiiaiiieiieeie eee ee 12 Kovatch v. California Casualty Mgmt. Co. (1998) 65 Cal. App.4th 1256 .........ccccueenneee. 14, 15, 17 Miller v. Kowa America Corp. (C.D. Cal. 2016) 2016 WL 4467880........cccceeveerieereeiieeiieniienns 12 Scotch v. Art Institute of Calif. (2009) 173 Cal. App.4th 986.........ccouviiiiiiiiiie cee, 11 Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248 ............... 12,17 Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241 ........ccceevviiinnnnn. 14, 15, 17 Thompson v. Tracor Flight Syst., Inc. (2001) 86 Cal. App.4th 1156 ........cccvvvviievieeiiiiiienne 13, 18 Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238 .........ccoovvieiiiiiiiieceeeeeeeeeeeee 12,13 Valdez v. City of Los Angeles (1991) 231 Cal. App.3d 1043....c.uoiiiiiiieieeieeeeeeee se r 11 Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819................. 11,13 - iii - Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION In its motion for summary judgment, Defendant Stanford Health Care’s (“SHC”) presents a wholly incomplete set of facts, deliberately truncating Plaintiff Julie Pitman’s allegations and ignoring entire swaths of evidence. As famously observed by one California Court of Appeal, A single photograph of two sumo wrestlers engaged in combat may give the impression they are dancing a pas de deux. One must witness the entire match to appreciate its meaning and significance. “A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario.” (Accardi v. Superior Court (1997) 17 Cal.App.4th 341, 351 [citation omitted].) SHC presents and analyzes only half of the record in this case, devoid of context, in order to create a misleading picture of Pitman’s workplace environment. Once it reviews the entire record, the Court should have little difficulty finding triable issues of fact and deny the motion. II. STATEMENT OF MATERIAL FACTS IN DISPUTE A. 2012 - Pitman Moves from Texas & Takes Job with Stanford Sleep Clinic Pitman has worked in sleep medicine for 20 years. (Other Material Facts in Dispute [“OMFD”] 1.) The SHC Sleep Clinic has a nationwide reputation as a leader in the field. In 2012, Pitman saw a job opening at the Clinic, applied online from Texas, and was selected for the job. (OMFD 2.) Hired in November 2012, every performance review she received reflected her significant contributions to the Clinic. (Defendant’s Undisputed Material Facts [“UMF”’] 46.) B. April 2016 - Aimee Walter Hires Monica Mayberry as Clinic Manager In late 2015, longtime Clinic Manager Jan Anderson announced her retirement. SHC then opened a search for her replacement. (OMFD 3.) Director of Clinic Operations Melissa “Aimee” Walter was tasked with selecting the new manager. (OMFD 4.) Pitman applied for the position as did her peer, Assistant Clinic Manager Walter Donaldson. (OMFD 5.) Aimee Walter reached out and invited Monica Mayberry to apply. She did not invite anyone else to apply. (OMFD 6.) The candidates underwent screening interviews with SHC medical staff who then made recommendations to Walter. The medical staff recommended hiring Mayberry on a six-month -1- Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment L A W O F F I C E OF N O A H D. L E B O W I T Z 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 trial basis. Ignoring that recommendation, Walter selected Mayberry as the Clinic Manager on a permanent basis. (OMFD 7.) C. May 2016 - Mayberry Starts Work at the Clinic and Immediately Instructs Pitman to Engage in Improper Conduct Causing Pitman Substantial Stress Mayberry began working in the role of Clinic Manager in May 2016. (UMF 3.) In one of her first interactions with Pitman, she instructed Pitman to modify an employee’s timecard in order to avoid paying that employee overtime. (OMFD 8.) Pitman objecting, saying it was improper and a violation of SHC policy. Mayberry replied by telling Pitman that Pitman was too much of a rule follower and would never get ahead at SHC if she was not willing to bend the rules from time to time. (OMFD 9.) Pitman was taken aback by Mayberry’s direct instruction to violate SHC policy. She also believed that what Mayberry was instructing her to do amounted to illegal timecard fraud. Pitman then told Mayberry she was uncomfortable with Mayberry’s instruction - reiterating that she would not engage in such conduct - and if it meant she would not advance at SHC, she was willing to accept that outcome. (OMFD 10.) In the same time period, Mayberry took Pitman to task for submitting a suspected HIPAA violation to SHC’s “Privacy” department without first clearing it with Mayberry. For instance, on May 27, Mayberry learned that Pitman had submitted a suspected HIPAA violation to Privacy. (OMFD 11.) Three days later, Mayberry responded to this notification by admonishing Pitman, writing: “Please speak to me prior to escalating.”! SHC policy and training provided that employees submit such issues directly to Privacy immediately upon learning of the suspected violation. Mayberry told Pitman the Clinic had too many such reports compared to other departments and that reflected poorly on Mayberry. (OMFD 13.) 2 "In a bizarre sequence of questioning at her deposition, Mayberry testified that she did not mean that Pitman should not go to Privacy, but meant “[jJust talking to me about it” or [t]o talk to me.” After taking a break and speaking with SHC counsel, Mayberry attempted to clean up her testimony saying she meant “keep me in the loop”, claiming she had been “confused” by the question asking “what did you mean when you used the word ‘escalating.”?” (OMFD 13.) 2 At her deposition, Mayberry denied giving Pitman that instruction. However, on July 5, Pitman sent a potential violation to Mayberry, writing “Per you previously telling me not to go to _2- Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment L A W O F F I C E OF N O A H D. L E B O W I T Z 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mayberry became increasingly hostile to Pitman, challenging everything Pitman attempted to accomplish, ignoring Pitman’s contributions, blaming Pitman for mistakes in areas not under her supervision, and generally thwarting Pitman’s efforts to do her job. Mayberry also yelled at, undermined, and verbally berated Pitman in front of others in the Clinic. (OMFD 14.) D. Early June 2016 - Pitman Complains to SHC Employee & Labor Relations As Mayberry’s hostile conduct towards Pitman continued, Pitman sought guidance from SHC’s Employee & Labor Relations (“ELR”) department. Pitman’s first contact was a telephone conversation with Senior ELR Specialist Caroline Norwood in the first week of June 2016. In that “lengthy” phone conversation, Pitman “mentioned there were some unethical issues with [Mayberry] and [Pitman] did not want to be part of it.” (OMFD 16.) E. June - August 2016 - Mayberry Delays Procurement of Equipment Otherwise Approved for Ergonomic Adjustments to Pitman’s Workspace Pitman had been using a power wheelchair for more than a year as a result of her physical disabilities: Chiari 1 Malformation, Ehlers Danlos Syndrome, and dysautonomia. The wheelchair did not fit under her desk. (OMFD 17.) Pitman’s physical disabilities cause her to be prone to dislocation of most joints. In late June or early July 2017, Pitman’s hips began dislocating because her wheelchair would not fit under her desk and she was forced to lean forward to type and use the mouse all day. (OMFD 18.) Mayberry increasingly had assigned Pitman tasks requiring Pitman to work at her desk substantially more than in years prior. As a result, Pitman’s need for workplace accommodation became acute. (OMFD 19.) Pitman requested approval for an ergonomic evaluation. Stanford policy required supervisors to request such evaluations for their subordinates. Nearly a month went by with no response, so Pitman renewed her request to which Mayberry responded by telling Pitman to deal with it herself. (OMFD 20.) privacy. ..” Mayberry did not correct Pitman’s statement. And, on July 27, Pitman sent another similar email, writing “You told me not to send these to privacy directly so here’s the info I have: . ..” Mayberry did not correct Pitman’s statement here either. (OMFD 12.) -3- Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment L A W O F F I C E OF N O A H D. L E B O W I T Z 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The ergonomic evaluators were appalled at the setup of Pitman’s work station and immediately sent an order for Mayberry ’s approval for modifications to be made. Over a month went by and nothing had changed, so Pitman reached out to the ergonomic team for an update. The ergonomic team informed Pitman that they were still waiting on Mayberry to approve the requested modifications. (OMFD 21.) After being re-prompted, Mayberry did ultimately approve the new equipment to be ordered. Over the delay in approval and the time for shipping of the new desk, Pitman continued to suffer regular dislocations to her hips. (OMFD 22.) F. June 9, 2016 - Mayberry’s Hostility Escalates to the Point Where Pitman’s Doctor Instructs Her to Take a Two-Week Medical Leave of Absence On June 9, 2016, Pitman had a meeting with Mayberry and her direct report Mark Mathis ostensibly to review Pitman’s performance counseling of Mathis. (OMFD 23.) Pitman had drawn up a performance improvement plan to use with Mathis as a coaching tool. The items and issues described in the plan were drawn from Pitman’s supervision and observation of Mathis over several months predating Mayberry’s arrival. (OMFD 24.) The meeting did not go well. In fact, throughout the meeting Mayberry belittled and undermined Pitman. Mathis left and the meeting continued with just Mayberry and Pitman. In that meeting, Mayberry directed Pitman to remove almost every item in the plan, gutting the plan of all potential efficacy in Pitman’s opinion. (OMFD 25.) Based on Mayberry’s actions and manner of direction, Pitman believed that Mayberry remained angry and resentful of Pitman’s objections to Mayberry’s earlier directions to violate SHC policy. To Pitman’s observation, Mayberry did not interact or engage with anyone else in the Clinic with the same hostility as she did with Pitman. (OMFD 26.) Mayberry ’s initial improper directions and her continued hostility towards Pitman caused Pitman great distress. She was accustomed to the general stress of her job, working long hours and putting in extra effort regularly. But Mayberry’s conduct towards Pitman was something else entirely. Directly after the June 9 meeting with Mayberry, Pitman went to see her doctor who immediately instructed Pitman to take two weeks off of work for a stress leave. That evening, Pitman emailed Mayberry informing her of the leave. (OMFD 15, 27.) -4- Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment L A W O F F I C E OF N O A H D. L E B O W I T Z 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The next day, Mayberry forwarded Pitman’s notice to Walter. Walter responded, asking “do you think this had anything to do with your meeting yesterday?” Mayberry denied any connection. (OMFD 28.) Walter never asked Pitman the same question; she relied exclusively on Mayberry’s representation. (OMFD 29.) G. June 12,2016 - Pitman Informs ELR that Mayberry’s Improper Conduct Caused Pitman to Take Medical Leave On June 12, 2016, Pitman sent Norwood a comprehensive email describing the June 9 meeting(s). In that email she wrote, inter alia: I don’t know what to do with all of this, but I am totally beyond stressed at not knowing what to do anymore, and not knowing whether I should follow what she tells me to do or do what I feel is right. * * * The stress of worrying all the time about defying what I am being told to do knowing that it is against policy is making me physically ill, and I do not wish to continue working under such stressful conditions (this is not a notice or me quitting, just saying that it is too stressful to keep working like that). (OMFD 30) Pitman also wrote that she had checked with Donaldson to see if he was receiving similar treatment and he confirmed he was not. (OMFD 31.) Upon receiving this email, Norwood forwarded it to her supervisor ELR Manager Suzanne Harris also highlighting inter alia the above excerpt to draw Harris’ attention to “concerning areas” within Pitman’s email. Norwood was new to SHC so she asked Harris if there was “anything [she] should know” about either Mayberry or Mathis. Norwood “does not know” if Harris ever responded. (OMFD 32.) Norwood did not contact Mayberry to investigate or try to remedy the situation. (OMFD 33.) H. July 7, 2016 - Pitman Tells Norwood She Wants to File a Grievance After returning from her leave, Pitman emailed Norwood saying “I would like to talk to you about filing a grievance with the issues I have been having with Monica Mayberry in our Department.” Pitman then described in detail the issues she intended to include in that grievance. (OMFD 34.) Norwood replied the next day referring Pitman to SHC’s employee grievance -5- Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 policies and forms. (OMFD 35.) The next week, Norwood notified Harris and Harris’ supervisor, ELR Administrative Director Mary Gaines, about Pitman’s grievance inquiries. (OMFD 36.) I. July 15, 2016 - Pitman Files Her Grievance but Norwood Does Nothing On July 15, Pitman submitted her formal grievance directly to Norwood. (OMFD 37.) The email submission contained the completed SHC formal grievance form. (/d.) In the six-plus, single spaced pages of Pitman’s narrative, she described the many ways in which Mayberry had directed Pitman to engage in violations of law and internal policy as well as Mayberry’s efforts to undermine Pitman. She also described the stress and emotional toll Mayberry’s actions had caused her to endure. As Pitman wrote: I literally hid in the parking lot and outside for breaks just to calm down and figure out how I could get myself to go back in to work on many occasions, and when I have loved my job since I started it (no matter how much stress occurred on the job I always handled it fine and have done really well going above and beyond my positional duties and upholding hospital goals and policies. Regular work stresses are nothing compared to the stress she has been causing me with managing me in such a way). I have never had a manager tell me to break rules and to do so so many times . . . . My doctor told me to quit because she didn’t think I should work under Monica anymore, but I love what I do and I love my team, and I should not be forced to find another job and leave the field I have been in for 16 years just because a manager doesn’t like to play by the rules and thinks I do so too much. I have multiple appointments set up for the rest of the month to talk to the therapist to get me through this, and I am having to pay for the stuff she is causing by paying for these appointments, doing them during breaks during my workday, and it is affecting my physical wellbeing as well. My insurance and I have to pay for these appointments, one’s that weren’t necessary before all of this, and I had to use a lot of PTO to get through this, and with the way this week has gone since I returned from the leave of absence, I am quite sure it won’t be the last medical leave I will have to take if this continues on this path. (OMFD 38.) SHC policy requires grievances to be investigated within 20 days of submission. (OMFD 39.) Twenty-four days later Pitman had heard nothing from Norwood, so Pitman emailed her noting the SHC 20-day policy and asking “Was anything done with it?” (OMFD 40.) Two days later, Norwood replied (copying Harris), apologizing “profusely,” acknowledging having “dropped the ball on this one” and pledging to “get right on it.” (OMFD 41.) Two days after that, Norwood forwarded the grievance to Harris, who never responded. (OMFD 42.) -6- Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment L A W O F F I C E OF N O A H D. L E B O W I T Z 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 J. August 8, 2016 - Walter Joins Mayberry’s Hostile Treatment of Pitman On August 8, Pitman attended a meeting with Mayberry and Walter. This meeting was unusual in that Pitman had never before had a meeting with both Mayberry and Walter. Before arriving, Pitman understood the meeting to be for the purpose of discussing plans for the Clinic for the upcoming year. (OMFD 43.) As soon as the meeting began, however, it became clear to Pitman that the meeting had a very different purpose. Instead, Pitman was “basically ambushed by [Mayberry] and [Walter] saying that [Pitman] had bad communication skills and needed to work on taking feedback.” The tone and content of the meeting did not improve from there. Rather, Mayberry and Walter spent the “majority of the meeting” admonishing Pitman for her “unwillingness to take ‘any feedback’ and being combative.” Walter professed her strong support for Mayberry and everything Mayberry was doing in the Clinic. (OMFD 44.) Believing this meeting was retaliation, Pitman emailed Norwood (copying Harris) with a detailed description of the meeting. “This is a set up on a course to fire me because [Mayberry] hasn’t liked me from her first week when she told me that I will never get anywhere in this organization if I am not willing to be more flexible and break the rules . . . [t]hen refused to break the rules.” (OMFD 45) Pitman also recounted Mayberry’s instruction to Pitman to engage in timecard fraud and Mayberry’s burying of HIPAA violation reports. (OMFD 46.) Pitman also described the hope she was placing on SHC and its ability to remedy the situation: I have hung in there hoping that the system SHC has in place would be on my side for wanting and trying to do the right thing, but I will not have my reputation smeared because I am unwilling to comply with requests to break rules, laws, and for basically being a model employee. I don’t know how much longer I can take this abuse, and now I feel like [Walter] now has this unrealistic view of me as a manager/supervisor based on our meeting Monday, it was those two against me when it should be about us working as a team. They tried to recover and say it was about us working as a team and being a cohesive management team but continued on to blame the problems all on me. I honestly don’t know how much longer I can put myself through this, I am literally stressed to the point of being sick most of the time I am at work, and while my doctor is telling me to take time off or quit saying she has seen me stressed at work in the past over too many hours and hard tasks she said that I thrived in those situations but that the workplace has become toxic and I should have jumped ship a long time ago when she first told me to and had me start counseling over it. I feel like if I take more time off it will lead to more blame placed my way for not getting information because I wasn’t here to receive it, and -7- Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I will not get the PTO I should be paid (I am still waiting for my pay for the medical leave I was out for in June and I filled out a PTO election form stating to use PTO until the STD went through or was approved or whatever). And the whole time | am so stressed I have to keep a happy face and pleasant demeanor and be positive at work so as not to appear how Monica is trying to label me and I have kept all comments and interactions professional. And even though I have high frustrations with what is going on, I have to build her up to my staff because it is against policy to blame others for things not going right. (OMFD 47.) Pitman concluded by asking for guidance in responding to Mayberry’s HIPAA instructions and by pledging to “hang in there and see what comes of this grievance.” (OMFD 48) K. August 2016 - Norwood Still Did Not “Get Right On It” Despite pledging to be more diligent, Norwood did not do anything in regard to Pitman’s grievance for another 13 days. (OMFD 49) At that point, Norwood conducted a one hour interview with Mayberry during which Mayberry denied all of Pitman’s allegations. (UMF 6.) Norwood took notes during her interview with Mayberry, but never created any sort of summary, conclusion or other write-up of the interaction. (OMFD 50) Norwood never circled back with Pitman about what she learned in the Mayberry interview; she never gave Pitman an opportunity to respond, consider Mayberry’s point of view, provide an alternative viewpoint, or provide additional facts to assist Norwood’s investigation. (OMFD 51) Norwood also never followed up with any of the witnesses in the Clinic who could potentially shed additional light on the situation(s) described by Pitman. (OMFD 52.) In her August 10 email to Norwood, Pitman specifically wrote: “I have had employees come to me and tell me that they really want me to stay on as their chief tech, but then say that I cannot continue to work under these conditions and they will forgive me if I quit and find another job.” Norwood did nothing in response. (OMFD 53.) L. August 24, 2016 - Mayberry Reveals Her Animus Towards Pitman The day after her interview with Norwood, Mayberry had a meeting with Walter. In that meeting, Mayberry told Walter about the grievance and the interview, declaring: “I said - I thought it - it was wrong - all of it was wrong. I just felt really bad about it because, you know, when somebody is saying things that are not true about you, it is hurtful.” (OMFD 54.) -8- Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M. August 23 to September 30, 2016 - Norwood Does Nothing in Regard to Pitman’s Grievance Between August 23 and September 30, Norwood did not do anything else in regard to Pitman’s grievance. (OMFD 55.) N. September 27, 2016 - Mayberry Again Reveals Her Animus Towards Pitman On September 27, Mayberry emailed Walter and Norwood the following message: Hi All - We need to talk about Julie Pitman. Julie is going to SOM [School of Medicine] and talking about me as her manager. I know she placed a compliant [sic]. It’s clear she does not want me to be her manager and she is trying to sabotage me. Please advise. From this email, Norwood understood Mayberry “meant she - she was being undermined or sabotaged by Ms. Pitman by filing the grievance.” (OMFD 56)? O. September 30, 2016 - Norwood “Interviews” Walter Prompted only by Walter’s response to Mayberry’s September 27 “sabotage” email, Norwood set up a meeting with Walter about Pitman’s grievance. (OMFD 58) Norwood took approximately four lines of notes; Walter lost whatever notes she took. (OMFD 59) During the meeting, Norwood described two of Pitman’s allegations. (OMFD 60.) Norwood did not give Walter a copy of the grievance to review and did not describe the vast majority of Pitman’s allegations. (OMFD 61) After the meeting, Walter followed up with Mayberry about these allegations and emailed Norwood what she learned. (OMFD 62) Walter spoke only to Mayberry about these issues and never asked Pitman for her perspective. (OMFD 63.) On October 4, Walter emailed Norwood with the additional information she had learned from Mayberry. Norwood never presented this information to Pitman nor gave her the opportunity to respond. (OMFD 6.) 3 Walter testified that she did not know to what Mayberry was referring when she saw Mayberry’s reference a “complaint” despite the fact that Mayberry had told her about the grievance just over a month prior. (OMFD 57) -9. Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment N = Z m M% = so S28 og SEG Z 5 = ma 5 Sz 2 m 3 og= 3 o B < - 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P. October 2016 - Norwood Verbally Informs Harris that She Concluded Pitman’s Allegations Were Unsubstantiated, but Never Tells Pitman At some point shortly after receiving Walter’s October 4 email, Norwood walked into Harris’ office and declared her investigation into Pitman’s grievance concluded, finding Pitman’ allegations “unsubstantiated.” (OMFD 65) Then, Norwood made a single attempt to reach Pitman. That attempt amounted to a single phone call in which Norwood reached Pitman’s work voicemail. She did not leave a message and learned (from a source she cannot recall) that Pitman was on medical leave. Pitman’s first day of medical leave was November 12. Norwood never attempted to call back; never tried Pitman’s cell, even though she had the number; she never sent an email; she never did anything else. Norwood never wrote up a report or in any way documented her findings or conclusions. (OMFD 66; UMF 8.) Q. November 2016 - April 2017 - Pitman Takes Medical Leave for Surgery but Returns Early Because She Fears for Her Job On November 12, 2016 Pitman started a long-term medical leave to undergo surgery related to her physical disabilities, with an anticipated return date of May 1, 2017. (UMF 6.) Prior to taking the leave Pitman was tasked with selecting her temporary placement from among three internal candidates. (OMFD 67.) Pitman selected Mathis for the role because she knew Mayberry wanted her to do so and she was trying everything she could to mollify Mayberry as a way of ending the hostility. (OMFD 68.) If not for Mayberry’s stated preference, Pitman would not have selected Mathis; in fact, with the help and approval of Norwood, Pitman had recently issued Mathis a verbal performance warning. (OMFD 69)* While on leave, Pitman began receiving communications from Sleep Techs that Mayberry had been implementing improper procedural changes to which Pitman previously had objected. (OMFD 71.) She also received messages from Sleep Techs and at least one physician that Mayberry had been talking about terminating Pitman because she was going to exhaust her protected leave. (OMFD 72.) Fearing that Mayberry wanted to terminate her, Pitman had her treating doctor release her to return to work early so she did not go beyond her protected time. Pitman returned to work with restrictions one month earlier than planned. (OMFD 73.) * A majority of Clinic physicians also would not have selected Mathis. (OMFD 70.) -10 - Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment N = Z m M% = so S28 Dg SEG Z 5 = ma 5 Sz 2 m 3 og= 3 o B < - 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R. April 2017 - Pitman Returns to Work to Learn that Mayberry has Promised Mark Mathis a Promotion that Threatens Pitman’s Future at the Clinic When Pitman went out on her medical leave, the plan was for Mathis to return to his regular position as Night Lead Tech upon Pitman’s return. To Pitman’s surprise, when she returned she learned that Mayberry had decided that this would not be the case; instead, in Pitman’s absence Mayberry had promised Mathis to create a new position for him that would either be equal or superior to Pitman. (OMFD 74.) S. April -- May 2017 - Because Mayberry’s Hostility Towards Pitman Continues And it is Clear SHC will not Support Her, Pitman Concludes She Must Resign After her return to work, Pitman soon discovered the break in time did not alleviate Mayberry’s hostility towards her. During morning huddles (daily update meetings with the Techs), Mayberry was openly hostile towards Pitman. (OMFD 75.) Contrary to prior practice, Mayberry did not have any one-on-one meetings with Pitman. Instead, Mayberry opted for delivering instructions by impromptu encounters in the hallways of the Clinic. (OMFD 76.) Even those encounters were full of hostility and were openly demeaning. (OMFD 77.) In one last effort to remedy the situation, Pitman met with Walter on April 24. In that meeting, Walter stated that Pitman’s job was not in jeopardy. (OMFD 78.) The very next day, however, Mayberry “stopped by to let me know that she knew I talked with [Walter] and she’s talked to her since, and she just wanted to let me know that everything was still a go and that Mark would still be getting that position. . . [i]t just kind of negated everything from the conversation with [Walter]” (OMFD 79.) Seeing no other option, Pitman resigned. (OMFD 80.) III. ARGUMENT A. WHETHER AN EMPLOYEE’S WORKING ENVIRONMENT WAS INTOLERABLE “IS NORMALLY A QUESTION OF FACT” In its moving papers, SHC asserts “[c]onstructive discharge cases are routinely disposed of as a matter of law.” (Def’s P&A at 11:18.) California law is actually more nuanced, to wit: “Although situations may exist where the employee’s decision to resign is unreasonable as a matter of law, ‘[w]hether conditions were so intolerable as justify a reasonable employee’s 299 decision to resign is normally a question of fact.” (Vasquez v. Franklin Mgmt. Real Estate “11 - Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fund, Inc. (2013) 222 Cal.App.4th 819, 827 [quoting Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1056] [citing Scotch v. Art Institute of Calif. (2009) 173 Cal.App.4th 986, 1022] [emphasis added]; see also King v. AC&R Advertising (9th Cir. 1995) 65 F.3d 764, 767 [same]; Miller v. Kowa America Corp. (C.D. Cal. 2016) 2016 WL 4467880 *9 [same].) Summary judgment is reserved for those constructive discharge cases where the undisputed facts show that a plaintiff could not possibly show adverse working conditions that 299 are “unusually ‘aggravated’ or amount to a ‘continuous pattern.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1247.) For instance, in Scotch, supra, the undisputed facts showed that the employer “did not change [the plaintiff’s] working conditions or make it difficult to perform his job functions” nor did the plaintiff cite evidence that “he was shunned, treated harshly, or subjected to epithets or scorn.” (173 Cal.App.4th at 1023.) In Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, a case heavily relied upon by SHC, the defendant’s allegedly adverse acts all arose from a legitimate investigation by the defendant into the plaintiff’s breach of journalistic ethics. (18 Cal. App.4th at 1271.) Given the nature of the plaintiff's actions, “no reasonable juror could conclude that defendant was not entitled to undertake the investigation.” (/d.) The court examined each of 10 factors cited by the plaintiff, finding nearly half had no evidentiary support in the record and the remaining six were normal outcomes of a workplace investigation of this type. (/d. at 1272-73.) The present case could not be more different than Scotch or Simers. To begin, Pitman has submitted evidence that she was shunned, and subjected to harsh treatment and scorn by Mayberry from the very beginning of Mayberry’s tenure as Clinic Manager. (OMFD 8-80.) Moreover, the trigger for Mayberry’s campaign of harsh treatment of Pitman was Pitman’s objection and refusal to engage in conduct that broke SHC policy and was potentially unlawful. In other words, 180-degrees from the circumstance in Simers. Mayberry’s animus toward Pitman cannot be disputed. (OMFD 54, 56, 57.) Others observed the behavior and remarked how they would not blame Pitman if she were to resign to escape Mayberry’s wrath. (OMFD 53.) Pitman’s doctors advised her to quit, but she resisted, hoping to work things out. (OMFD 38, 47) -12- Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment L A W O F F I C E OF N O A H D. L E B O W I T Z 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHC’s motion completely ignores and omits the facts and circumstances of Mayberry’s interactions with Pitman from May through November 2016. The only evidence in the record is what has been presented by Pitman. Drawing, as we must, all inferences from this evidence in Pitman’s favor, these facts are sufficient to show a continuous pattern of adverse working conditions. Pitman has also submitted evidence that when she returned from her medical leave of] absence in April 2017, Mayberry made it increasingly difficult for Pitman to perform her job functions, including belittling her in front of her staff and confirming that Pitman would lose a large portion of her job responsibilities to Mathis. (OMFD 74-79.) In the end, this case presents a far different set of facts and evidence from those cases where courts rule as a matter of law that a plaintiff cannot show the factors of a constructive discharge. Rather, this case falls well within the realm of cases where constructive discharge “is normally a question of fact.” (Vasquez, supra, 222 Cal.App.4th at 827.) B. SHC HAS FAILED TO SHOW IT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW Turner, supra, described two ways in which a plaintiff may show constructive discharge: either by showing such adverse working conditions were sufficiently “aggravated” or that they amounted to a “continuous pattern.” (7 Cal.4th at 1247.) “Implicit in this disjunctive formulation is that even though individual incidents in a campaign of harassment do not constitute justification for an employee to resign, the overall campaign of harassment can constitute such a justification.” (Thompson v. Tracor Flight Syst., Inc. (2001) 86 Cal. App.4th 1156, 1172 [emphasis added].) While “employers have the right to unfairly and harshly criticize their employees, to embarrass them in front of other employees, and to threaten to terminate or 9% ¢¢ demote [them],” “[n]evertheless, a continuous course of such actions, uncorrected by management, can constitute objectively intolerable working conditions.” (Id. at 1171 [citations omitted] [emphasis added].) Pitman has raised sufficient evidence that such a continuous course of action existed that SHC failed to correct despite being given multiple opportunities to do so. -13 - Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. The Totality of the Circumstances Establish a Triable Issue of a “Continuous Pattern” of Adverse Working Conditions a) SHC Improperly Limits its Timeline of Relevant Facts By ignoring the sequence of facts preceding Pitman’s November 2016 leave, SHC has removed all context and presented a misleading narrative of the circumstances leading to Pitman’s decision to resign. (Def’s P&A at 16; see also id. at 6.) California courts reject this type of cherry-picking. (See Steele v. Youthful Offender Parole Bd. (2008) 162 Cal. App.4th 1241, 1258 [“Viewing the fotality of these circumstances, substantial evidence supports the jury’s finding of intolerable or aggravated working conditions.”] [emphasis added]; Thompson, supra, 86 Cal.App.4th 1168-69 [rejecting the defendant’s attempt to “slice . . . evidence” and holding that testimony regarding intolerable working conditions “must be viewed in the proper context.”] [emphasis added]; Kovatch v. California Casualty Mgmt. Co. (1998) 65 Cal.App.4th 1256, 1271.) These courts, instead, reviewed the “totality of the circumstances” in analyzing a plaintift’s allegation of intolerable working conditions. For instance, in Kovatch, the defendant sought to limit the court’s review to instances where the plaintiff’s supervisor had used obvious derogatory language related to the plaintiff's sexual orientation. The court saw otherwise: Our consideration of [the plaintiff's] evidence is not so limited. While some of [the supervisor’s] behavior toward [the plaintiff] may not on its face evidence any bias on the basis of [the plaintiff's] sexual orientation, an inference of bias would not be unreasonable based on those incidents in which [the supervisor] did display antigay animus.” (Kovatch, supra, 65 Cal.App.4th at 1271 [citation omitted].) Viewing the evidence “in its entirety,” the court held the plaintiff had raised triable questions of fact citing the following facts as evidence of a continuous pattern of adverse working conditions: Instances where one of the plaintiff’s supervisors (a) moved his seat away from the plaintiff in a meeting, (b) undermined the plaintiff’s authority during a meeting, (c) ignored the plaintiff when the plaintiff said “hello,” and (d) declined to shake the plaintiff's hand, while another of the plaintift’s supervisors (a) “began looking away when saying ‘hello’ to [the plaintiff] and [b] would not shake [the plaintiff's] hand. (/d. at 1269.) Without understanding Pitman’s work environment in the May to November 2016 timeframe, the April 6 to May 5, 2017 period of time makes little sense. (See Accardi, supra, 17 -14 - Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. App.4th at 351.) As described in detail above in § II, from the very first time Pitman objected to unlawful instructions from Mayberry in early May 2016, Mayberry created adverse working conditions for Pitman. Those conditions became so severe so quickly that by early June Pitman’s doctor referred her to a therapist and instructed her to take a two-week stress leave. (OMFD 27-31; see Steele, supra, 162 Cal.App.4th at 1258 [citing the plaintift’s stress leave as evidence of intolerable working conditions]; Kovatch, supra, 65 Cal.App.4th at1270 [citing the plaintiff’s pursuit of “psychotherapy treatment from a counselor [and] complaining of anxiety” as evidence of intolerable working conditions.].) Pitman reported to Norwood, the Clinic’s ELR representative, that Mayberry’s treatment of her was the reason for this leave. (OMFD 27-31.) She also reported to Norwood that her doctors had advised her to quit, but that she was fighting those instructions and wanted to maintain her employment that she loved.’ When Pitman returned from her stress leave in early July, her working conditions had not improved; they got worse. On August 8, Mayberry escalated her negative treatment of Pitman by bringing her supervisor, Walter, in to a meeting with Pitman during which they berated Pitman with allegations of poor performance and accused her of showing an inability to take instructions. (OMFD 43-46.) Of course, there was some partial truth to these allegations - Pitman did refuse to accept instructions to engage in improper conduct including inter alia timecard fraud and also objected to instructions to bury HIPAA violations. A jury could reasonably conclude, as Pitman did, that Mayberry’s inclusion of Walter in the meeting was a show of power by Mayberry, demonstrating to Pitman that she had Walter’s backing and was sending a message to Pitman to get with the program.® 3 “My doctor told me to quit because she didn’t think I should work under Monica anymore, but I love what I do and I love my team, and I should not be forced to find another job and leave the field I have been in for 16 years just because a manager doesn’t like to play by the rules and thinks I do so too much.” (OMFD 38.) % A jury would further be entitled to infer this alliance based on the facts that (a) Walter invited Mayberry to apply for the position (i.e., poor performance by Mayberry would reflect badly on Walter), (b) Walter ignored the recommendation of the physicians to hire Mayberry on a temporary basis and hired her on a permanently, (c) Walter relied exclusively on Mayberry’s assurance that Pitman’s stress leave was unrelated to Mayberry, and (d) Walter relied exclusively on Mayberry’s word both in this meeting and when Walter followed up on Norwood’s questions in early October. (OMFD 6, 7, 28, 29, 60-64.)) -15- Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Overlapping this timeframe, Mayberry delayed first an ergonomic assessment of Pitman’s workspace, then the procurement of approved equipment needed for fixes, all causing Pitman continued physical pain. (OMFD 17-22.) Pitman tried everything she knew to fix the situation. She sought direction from Norwood in ELR. (OMFD 30.) She provided Norwood with detailed written descriptions of Mayberry’s (and Walter’s) actions, and the impact those actions were having on Pitman, including the fact that Sleep Techs had expressed concern for Pitman’s well-being after witnessing Mayberry ’s treatment of her. (OMFD 45-48.) She followed SHC published policy and filed an Employee Grievance. (OMFD 37.) 7 She went against her own instincts and selected Mathis as her temporary replacement while she went out for her surgery in November 2016 to placate Mayberry who repeatedly had expressed her preference that Mathis get that role. (OMFD 68-70.) SHC also ignores the evidence showing Mayberry’s animus toward Pitman for filing the Employee Grievance. The day after Mayberry learned of the grievance, she told Walter that she was “hurt” by Pitman’s complaints. (OMFD 54.) The following month, she told both Norwood and Walter in writing that she believed Pitman was “sabotaging” her, citing the grievance. (OMFD 56.) Surely, a jury is entitled to consider this evidence in assessing the reasonableness of] Pitman’s actions. b) Properly Viewed, Mayberry’s Conduct from April to May 2017 Shows a Continuous Pattern of Adverse Working Conditions While she was out on her extended medical leave over the winter of 2016-2017, Pitman received messages from various Sleep Techs about changes that were being made at the Clinic during her absence, including changes that Pitman previously had rejected as contrary to established policy. (OMFD 71.) Pitman also received messages during this time that Mayberry was talking about terminating Pitman if she remained on leave for the entire period that had been approved. (OMFD 72.) 7" Therefore, SHC’s argument that Pitman gave them “no opportunity to address [her] concerns of intolerable working conditions” (Def’s P&A at 18:16-26) is unfounded. -16 - Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment L A W O F F I C E OF N O A H D. L E B O W I T Z 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fearing for her job, Pitman convinced her doctors to release her to return one month earlier than originally planned. (OMFD 73.) Despite the passage of time, Mayberry did not let up her hostility toward Pitman. (OMFD 75.) Mayberry effectively shunned Pitman; she did not have any one-on-one meetings with Pitman, undermined Pitman’s authority in morning huddle meetings, and generally gave Sleep Techs the impression that Pitman’s opinion and direction were unworthy of credit. (OMFD 75-77; see Kovatch, supra, 65 Cal.App.4th 1269.) Pitman also became increasingly worried about her future employment. When she returned, Pitman discovered that Mayberry had promised Mathis she would create a new position, for him that was at an equal or higher level than Pitman’s, taking over a significant portion of Pitman’s job responsibilities. (OMFD 74.) Pitman’s fears were assuaged temporarily when Walter told her that her job was not in jeopardy. (OMFD 78.) However, that relief was dashed when Mayberry subsequently told her “everything was still a go and that Mark would still be getting that position. . .” Given Pitman’s prior experience with Walter backing up Mayberry’s attacks, a jury could reasonably conclude, as Pitman did, that Mayberry’s statements “just kind of negated everything from the conversation with [Walter].” (OMFD 79.)® At this point, Pitman was convinced there was nothing to stop Mayberry’s continued adverse treatment. No amount of leave would fix the situation. Mayberry’s supervisor would not fix the situation. Having heard nothing from Norwood, Pitman concluded ELR would not fix the situation. There was nothing left for her to do. (OMFD 80.) Based on the totality of circumstances, a jury could reasonably conclude, as Pitman did, that Pitman’s working conditions were objectively intolerable and she acted entirely with justification when submitting her resignation.’ Instead of properly reviewing this totality of circumstances and fully contextualizing the circumstances immediately preceding Pitman’s resignation, SHC improperly “ignores much of 8 A jury likewise could reasonably question the sincerity of Walter and Mayberry’s subsequent statements asking Pitman to reconsider her decision to resign. ? A reasonable jury similarly is entitled to understand Pitman’s contemporaneously stated rationale of taking a job closer to her home as an incomplete or even purposefully inaccurate statement under the circumstances. (See Steele, supra, 162 Cal.App.4th at 1260.) -17 - Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the evidence and presents other evidence in the light most favorable to its position.” (Steele, supra, 162 Cal.App.4th at 1260.) As the Steele the court observed “[w]e do not have to determine whether each individual action was an intolerable condition because the actions taken together support a finding that [the plaintiff] was unlawfully coerced into resignation.” (162 Cal. App.4th at 1258 [citations omitted]; Thompson, supra, 86 Cal. App.4th at 1169 [rejecting the employer’s “attempts to dissect [the supervisor’s] treatment of [the plaintiff] into distinct incidents; each incident is then claimed to be either trivial or a justified response to [the plaintiff’s] own acts.”].) Considering the totality of the circumstances in the proper context, a jury could reasonably conclude that Pitman has established intolerable working conditions. 2. SHC’s Failure to Adequately Respond to Pitman’s Complaints Further Supports Pitman’s Constructive Discharge Pitman put her faith in SHC’s published policies and procedures to provide a remedy. To say that SHC’s ELR department “dropped the ball” (OMFD 41) is a massive understatement. Pitman sought assistance from ELR almost immediately after enduring the earliest of Mayberry’s hostility. As Norwood put it, she and Pitman had a “long” phone conversation during the first week of June 2016 in which Pitman “mentioned there were some unethical issues with [Mayberry] and [Pitman] did not want to be part of it.” (OMFD 32.) Pitman followed that phone call with an email to Norwood in which she detailed several circumstances where Mayberry had instructed Pitman to violate SHC policies, including engaging in timecard fraud and violating HIPAA reporting policies, and how Mayberry had reacted to Pitman’s refusal to follow those instructions. (/d.) In that same email, Pitman notified Norwood that Mayberry’s hostility had caused her so much stress - saying Mayberry’s hostility was “making [her] physically ill” - that her doctor put her on a two-week medical leave. (/d.). Norwood forwarded Pitman’s email up the chain in ELR, but took no other action. (/d.; OMFD 33.) When Pitman returned from her stress leave, she continued to engage with Norwood and seek guidance for remedying the situation with Mayberry. By July 8, Pitman decided she needed to file an Employee Grievance. (OMFD 34.) She sent Norwood a draft of that grievance detailing the many instances of Mayberry’s improper instructions and the series of hostile encounters she -18 - Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 1 4 4 2 A Wa ln ut St re et , No . 45 2 Be rk el ey , C A 94 70 9 L A W O F F I C E OF N O A H D. L E B O W I T Z 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 had with Mayberry after refusing to go along with those instructions. (/d.) One week later, Pitman submitted her formal grievance to Norwood. (OMFD 37-38.) SHC’s policy requires an investigation into an Employee Grievance be completed within 20 days of filing. (OMFD 39.) Twenty-four days after filing her grievance, Pitman wrote to Norwood asking “was anything done with it?” (OMFD 40.) Two days later, Norwood acknowledged that she had “dropped the ball” and promised she “will get right on it.” (OMFD 41.) Later that night, Pitman wrote Norwood a desperate email, describing a coordinated “ambush” by Mayberry and Walter earlier in the day. (OMFD 43-48.) Pitman was placing her last hope in Norwood and SHC’s grievance process. Despite reading Pitman’s plea upon receiving it, and contrary to her contemporaneous promise, Norwood did not “get right on it.” It took her another 13 days before she met with Mayberry. (OMFD 49.) After that meeting, Norwood did absolutely nothing for the next month. (OMFD 51-53, 55.) It was the end of September 2016 before Norwood had a brief meeting with Walter in which they discussed two of Pitman’s allegations. (OMFD 58.) Of course, that meeting only took place because Walter had asked for the meeting in response to Mayberry’s email accusing Pitman of sabotage (i.e., it was not something Norwood initiated as part of her investigation). (/d.) Even then, Norwood never read the grievance to Walter, did not show Walter a copy of the grievance, and failed to tell Walter about the vast majority of Pitman’s allegations. '® (OMFD 60-61.) These two brief meetings represent the sum total of effort Norwood put in to Pitman’s grievance. She never interviewed any other witnesses, despite Pitman specifically stating that others had witnessed Mayberry ’s hostility towards Pitman and stating that she spoke with Donaldson to confirm that Pitman, alone, was being subjected to this hostility. (OMFD 31, 53.) She never interviewed Pitman. She never gave Pitman an opportunity to respond to either Mayberry or Walter’s statements. (OMFD 51, 63.) She never spoke with Pitman about the 10°" Walter and Mayberry provided contradictory testimony about Walter's knowledge of the grievance. According to Walter the October meeting with Norwood was the first time she heard about the grievance. But Mayberry testified that she met with Walter within days of her August 23 interview with Norwood to tell Walter about the grievance and that she was “hurt” by the allegations. (OMFD 54, 57.) -19- Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment N = Z m M% = so S28 og SEG Z 5 = ma 5 Sz 2 m 3 og= 3 o B < - 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 grievance after July 15. (OMFD 66.) She made a solitary attempt to call Pitman sometime after November 11, 2016 and did not even leave a message. Finally, she never wrote a report (she verbally reported to Harris her conclusion that Pitman’s allegations were “unsubstantiated”). (OMFD 65.) And, despite being on notice of Pitman’s issues and each of Pitman’s complaints since early Jun 2016, ELR higher-ups Harris and Gaines did nothing. (OMFD 32, 36, 41, 42, 45.) Pitman put her faith in SHC and SHC failed her. The evidence shows a “continuous course of [adverse] actions, uncorrected by management” sufficient to defeat this motion. IV. CONCLUSION The image presented by SHC’s motion is the equivalent of “[a] single photograph of two sumo wrestlers engaged in combat [that] give[s] the impression they are dancing a pas de deux.” (Accardi, supra, 17 Cal. App.4th at 351.) It crafts a truncated and misleading picture of the circumstances that led Pitman to resign from the position she coveted so much that she moved from her home in Texas to take. When viewing a totality of the circumstances in the proper context, Pitman has identified multiple material facts in dispute sufficient to meet her burden here. This motion should be denied and Pitman should be permitted to have her case heard by a jury. Dated: July 22,2020 LAW OFFICE OF NOAH D. LEBOWITZ By: Noah D. Lebowitz Attorneys for Plaintiff Julie Pitman -20 - Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment
