Memorandum Points and Authorities

Cal. Super. - 6th Dist.February 19, 2019

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1QCV343935 Santa Clara - Civil LINDA M. MORONEY (SBN 172668) NIMA NAYEBI (SBN 283021) ADRIENNE T. SUBIDO (SBN 328803) GORDON REES SCULLY MANSUKHANI, LLP 275 Battery Street, Suite 2000 San Francisco, CA 941 11 Telephone: (415) 986-5900 Facsimile: (415) 986-8054 1moroney@grsm.com nnayebi@grsm.com asubido@grsm.com Attorneys for Defendant EL CAMINO HOSPITAL DH Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/1 6/2020 2:28 PM Reviewed By: D Harris Case #1 9CV343935 Envelope: 5303336 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA MANUELA LESPAGNARD ) ) Plaintiff, ) vs ) ‘ ) EL CAMINO HOSPITAL, and DOES 1-20, ginclusive, ) Defendants. g ) ) ) -1- CASE NO. 19CV343935 MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Date: Time: Dept: Complaint Filed: Feb. 19, 2019 Trial Date: Not Yet Set MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION arris 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION AND SUMMARY OF ARGUMENT ................................................. 1 A. Background ............................................................................................................. 2 B. ECH Engages in a Lengthy Interactive Process With Lespagnard t0 Assist Her with Finding An Alternative Job Position at the Hospital. .............................. 3 C. Lespagnard Participates in a Formal Interactive Process Meeting and ECH Continues t0 Assist Lespagnard t0 Secure an Alternate Job ................................... 5 D. Lespagnard Cannot Secure An Administrative Job Outside ECH and Files a Lawsuit Against ECH. ......................................................................................... 6 III. ARGUMENT ...................................................................................................................... 7 A. Lespagnard’s Age and Disability Discrimination Claims Lack Merit .................... 7 1. Lespagnard Has No Admissible Evidence ofAge Discrimination ............. 8 2. Lespagnard’s Disability Discrimination Claim Also Fails. ........................ 9 B. Lespagnard’s Failure to Accommodate Claim Lacks Merit. ................................ 11 1. ECH Reasonably Accommodated Lespagnard by Providing Her Ample Leave. ............................................................................................ 11 2. Lespagnard Never Requested any Reasonable Accommodation to Enable Her t0 Return t0 Her Central Services Technician Position, and Instead, Informed Her Manager She Would Not be Returning to Her Position. ......................................................................................... 12 3. Lespagnard was Not Qualified for any of the Internal Position to Which She Applied. .................................................................................. 13 C. ECH Engaged in a Lengthy Good Faith Interactive Process with Lespagnard. ........................................................................................................... 1 5 D. Lespagnard’s Retaliation and Interference Claims Lack Merit ............................ 16 ECH Did Not Discriminate or Retaliate Against Lespagnard 0n any Basis, Much Less Fail to Prevent It From Occurring. ..................................................... 18 F. Lespagnard’s Wrongful Termination in Violation of Public Policy Claim Necessarily Fails. .................................................................................................. 19 IV. CONCLUSION ................................................................................................................. 19 _ii_ MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Aguilar v. Atlantic Richfield C0. (2001) 25 Cal.4th 826 ............................................................................................................... 21 Angel] v. Peterson Tractor, Inc. (1994) 21 Cal.App.4th 981 ....................................................................................................... 22 Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307 ................................................................................................... 22 Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150 ..................................................................................................... 23 Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34 ..................................................................................... 15, 16, 18, 20 Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317 ......................................................................................................... 11, 12 Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215 ........................................................................................... 15, 16, 17 Hersam‘ v. Department ofSocial Services (1997) 57 Cal.App.4th 997 ................................................................................................. 12, 13 Jennings v. Marralle (1994) 8 Cal.4th 121 ................................................................................................................. 22 Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245 ............................................................................... 15, 16, 17, 18, 19 Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472 ....................................................................................................... 12 Lui v. Cizfy and County ofSan Francisco (2012) 211 Cal.App.4th 962 ..................................................................................................... 15 Martin v. Lockheed Missiles & Space C0. (1994) 29 Cal.App.4th 1718 ..................................................................................................... 13 McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 .................................................................................................................. 11 Nealy v. City ofSanta Monica (2015) 234 Cal.App.4th 359 ............................................................................. 13, 14, 15, 17, 18 Northrop Grumman Corp. v. Workers ’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021 ................................................................................................... 22 -iii- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935 ....................................................................................................... 16 Rogers v. County 0fLOS Angeles (201 1) 198 Cal.App.4th 480 ..................................................................................................... 20 Scotch v. Art Institute ofCalz'fornia (2009) 173 Cal.App.4th 986 ..................................................................................................... 19 Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954 ............................................................................................... 18, 19 Taylor v. City ofLos Angeles (2006) 144 Cal.App.4th 1216 ............................................................................................. 20, 21 Trujillo v. North C0. Transit Dist. (1998) 63 Cal.App.4th 280 ....................................................................................................... 22 Wills v. Superior Court (201 1) 195 Cal.App.4th 143 ..................................................................................................... 13 Yau v. Allen (2014) 229 Cal.App.4th 144 ..................................................................................................... 23 Statutes Code of Civil Procedure Section 437C .............................................................................................................................. 11 Evidence Code Section 1200 ............................................................................................................................. 12 Government Code Section 12940 ..................................................................................................................... 18, 22 _iV_ MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiff Manuela Lespagnard’s allegations that Defendant E1 Camino Hospital discriminated or retaliated against her based 0n age or disability status, 0r failed to accommodate her disability, lack merit. E1 Camino Hospital (“ECH”) hired 43-year-old Manuela Lespagnard (“Lespagnard”) as a Central Services Technician in the Hospital’s Central Supply department in 2009. While employed, Lespagnard sought to advance her career by completing a bachelor’s degree, and hoped that this degree would qualify her for an “administrative” role at ECH. However, Lespagnard lacked any administrative work experience. While employed, Lespagnard began experiencing physical health difficulties and 0n January 29, 2018, she took a leave of absence from ECH. While 0n leave, Lespagnard advised her manager that she would not be returning to her Central Services Technician position. Lespagnard chose t0 focus instead on applying t0 various administrative positions for which she was not qualified. During a lengthy interactive process, ECH’s human resources department and an ECH recruiter assisted Lespagnard with this internal job search. Although Lespagnard did not meet the qualifications for any of the positions she sought, ECH advanced her applications to each of the hiring managers for those positions. However, Lespagnard was unable to secure a new position. Simultaneously, Lespagnard submitted more than 20 job applications to employers outside of ECH, including applications for “front desk secretarial” and “healthcare administrative” jobs, but no employer hired Lespagnard for such roles. Ultimately, Lespagnard was 0n leave for more than six months, would not return t0 her position as a Central Services Technician at ECH, and did not qualify for any 0f the administrative positions to which she applied. Thus, after engaging in a lengthy interactive process with Lespagnard and exhausting all of its internal processes, ECH administratively terminated her employment on August 7, 2018. At the same time, ECH informed Lespagnard that she remained in good standing and was eligible for reemployment. Even after her separation from ECH, Lespagnard was not able to obtain an administrative job comparable to the jobs she sought at ECH. _ 1 _ MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lespagnard filed the present lawsuit against ECH in February 2019, alleging primarily disability-related causes of action (e.g., disability discrimination, failure to accommodate, failure t0 engage in a good faith interactive process.) While ECH understands that Lespagnard may be frustrated because she has not yet been able t0 land her ideal job, Lespagnard’s allegations of wrongdoing lack merit. Accordingly, ECH requests that this Court grant its motion for summary judgment 0r, in the alternative, summary adjudication. II. RELEVANT FACTS A. Background/Overview ECH is an award-winning non-profit hospital that delivers healthcare to residents 0f Santa Clara County through a diverse workforce ofmore than 3,000 fillltime employees.1 In June 2009, ECH hired 43-old Lespagnard as a full-time Central Services Technician. (UMF 1.) Lespagnard’s primary job duties consisted of receiving, storing, inventorying, and distributing supplies throughout the hospital. (Declaration 0f Manny Hernandez (“Hernandez Decl.”) at 1T4 & Exhibit G.) Lespagnard did not generally interact With patients, and had few administrative duties, limited to data entry and pulling up reports in connection with hospital supplies. (UMF N0. 2.) The Central Services Technician role was physically demanding, and required a substantial amount of walking, among other things. (Hernandez Decl. at 114 & Exhibit G.) ECH approved multiple leave requests by Lespagnard, and each time, ECH also accommodated her by placing her on “light duty” until she was able to resume her regular work. (UMF No. 3.) On January 26, 2018, Lespagnard submitted a doctor’s note stating that she would undergo surgery 0n January 29, 2018, and that she could “return to regular work on April 23, 2018.” (Exhibit C-lO.) Lespagnard then took What would be her final leave of absence, beginning on January 29, 2018. (UMF No. 7.)2 After she exhausted all legally protected leave on April 22, 2018, (the day before her doctor had cleared her t0 return to regular work), ECH continued approving her requests for further leave Without job protection, until August 6, 2018. 1 https://WWW.elcaminohealth.org/about-us. 2 Between January and June 2018, Lespagnard had several surgeries involving her foot, wrists, and knees. (Exhibit C, at pp. 95:23-96z7.) -2- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (UMF No. 8; Exhibit C-lO.) Subsequently, ECH administratively terminated Lespagnard’s employment on August 7, 2018, after accommodating her With more than six months 0f leave. Lespagnard would not consider returning to her Central Services Technician job and could not qualify for another position at ECH. (UMF Nos. 13, 3 1 .) B. ECH Engages in a Lengthy Interactive Process with Lespagnard t0 Assist Her with Finding An Alternative Job Position at the Hospital. In 2015 and again in 2016 or 2017, Lespagnard informed ECH Human Resources Business Partner (“HRBP”) Kathy Alexander (“Alexander”) that she was in college and Wished to apply for a management or office position at ECH after completing her bachelor’s degree. (Alexander Decl. 1W4, 5.) Alexander advised Lespagnard that she would still need to meet the qualifications for this type 0f position and needed to gain hands-on work experience t0 qualify for a management or office position, as she had n0 such previous experience. (Ibid.) In January 2017, Lespagnard informed HRBP Faridah Hemani (“Hemani”) that she was looking for an administrative role because she was completing a bachelor’s degree in healthcare administration and having some physical issues that interfered With her ability to perform her Central Services Technician job. (Exhibit C, at pp. 82:2-17; 83:8-11 & Exhibit C-6.) Hemani circulated this information to ECH staff in order t0 support Lespagnard with her job search. (Exhibit C-6.) In October 2017, Lespagnard contacted Hemani advising that she had just finished her bachelor’s degree and would like training “because recruiters want applicants to have hands- on experience.” (UMF No. 4.) Hemani encouraged Lespagnard to explore the ECH careers website to determine Which types of roles 0r openings she was interested in, and to narrow down roles that were potential career paths for her, so that ECH could see how it could support Lespagnard. (UMF No. 5.) On December 5, 2017, Lespagnard emailed Hemani stating: Is there any way that you 0r someone at E1 Camino Hospital can help me gain experience for a job in Management? I graduated in September With my BSHA (Bachelor’s of Science in Healthcare Administration). I have tried t0 apply for El Camino management jobs but they all want three or more years experience. I realize that everyone wants hands-on experience but where d0 you start if you are not given opportunity? Nobody would have a job and it is by landing a job that you gain experience. At this point I Will do anything and sacrifice my free time to -3- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 gain experience. My education has been very expensive for me and I hope it was not a waste 0f money. (UMF No. 6.) Several months later, in April 0f 2018 (while Lespagnard was on her final leave), Lespagnard contacted Hemani and notified her that due t0 her physical injuries, she would like a transfer t0 a desk job 0r administrative position. (See Exhibit C-l 1.) Hemani requested Lespagnard’s resume, and forwarded it to several ECH recruiters, including Nayomee Maas, who assisted Lespagnard in finding a different position. (UMF N0. 10.) Lespagnard believed that her bachelor’s degree was sufficient for her to obtain a different role at ECH. (Exhibit C, at pp. 9325-9425; Exhibit B, Response to Form Interrogatory No. 202.2.) However, Maas advised that Lespagnard did not qualify for any open positions. (UMF No. 11.) Lespagnard never requested to explore any accommodations that would enable her t0 return t0 her position as a Central Services Technician. (UMF No. 12.) To the contrary, on April 19, 2018, Lespagnard emailed her manager, Manny Hernandez, informing him that she would not be going back t0 work in her position as a Central Services Technician because 0f her physical limitations. (UMF N0. 12.)3 In her search for a different job, Lespagnard applied for approximately 25 administrative positions at ECH in 2018, including approximately 14 Patient Services Representative (“PSR”) positions and 6 Administrative Assistant positions.4 (UMF N0. 14.) However, Lespagnard did not meet the qualifications for any 0f the administrative roles t0 Which she applied as all of these positions required, among other things, at least two years of hands-on work experience, Which she did not have. (UMF N0. 15.) Mass, Who was assisting Lespagnard, proactively reviewed other administrative positions that were open at ECH in 2018, but Lespagnard was not qualified for any 0f the open positions. (UMF N0. 16.) Mass also searched for other roles t0 which Lespagnard had not applied and for Which she might have qualified, but there were n0 suitable 3 Under ECH’S policies, if a reasonable accommodation cannot be made t0 allow an employee t0 perform the essential functions of her job, the interactive process then focuses on a search for alternative jobs. (EXh. D, Hemani Depo 101 :7-12.) 4 Before June 17, 2018, the title 0f the “Patient Services Representative” position was “Schegistrar.” (See Alexander Decl. at $18.) For consistency, this memorandum uses the term PSR to refer to this position. -4- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 positions. (UMF N0. 17.) Yet despite lacking the minimum qualifications for the positions t0 which she applied, ECH forwarded some of her applications to the hiring managers because Lespagnard because was an internal candidate as well as disabled. (UMF. No. 18.) As Maas testified, “were she an external candidate and I was reviewing her application, she would have been rejected immediately.” (Ibid. ; Maas Depo., at pp. 96123-9212.) On May 9, 2018, ECH hiring manager Jamiee Chow reviewed an application by Lespagnard for a PSR position forwarded t0 her by Maas, but did not select Lespagnard because she lacked experience for the position. (UMF No. 19.) Maas also forwarded Lespagnard’s application for a different PSR position to hiring manager Karla Romero (“Romero”). (UMF No. 19.) Romero considered the application and advised Maas: “The candidate does not have relevant experience or current skills to be proficient in the role. She also lacks the depth of specialized knowledge.” (Ibid) Of note, PSR positions at ECH require a minimum 0f two years’ medical office or medical insurance experience, as well as registration experience. (UMF N0. 21.) The registration and medical insurance aspects of the PSR position are critical because there is no tolerance for inaccurate 0r incomplete registration as this is a point of entry to the Hospital, and because insurance processing and billing must be 100% accurate. (Ibid.) C. Lespagnard Participates in a Formal Interactive Process Meeting and ECH Continues t0 Assist Lespagnard t0 Secure an Alternate Job. On May 24, 2018, Lespagnard participated in a formal interactive process meeting with Hemani and Union Representative David Clymer. (UMF N0. 22.) During the interactive process meeting, the group discussed various internal positions at ECH, and Lespagnard was provided with an additional 60 days from June 6, 2018, t0 work with recruitment services to secure an internal position. (UMF N0. 23.) On May 29, 2018, Lespagnard had a phone interview for a per diem Administrative Support Pre-Op/Short Stay position with hiring manager Elizabeth Maurer, but Lespagnard did not want a per diem position. (UMF N0. 24.) At approximately this same time, Maas suggested that Lespagnard apply for a PSR position in the Imaging Department. (UMF N0. 25.) In approximately June of 2018, HRBP Alexander became aware the Lespagnard had applied for -5- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this position, and discussed Lespagnard’s job search With the hiring manager, Joan Escobar (“Escobar”). (UMF No. 26.) Escobar advised that she was willing to train Lespagnard for the PSR position in the Imaging Department, and Alexander secured an interview for Lespagnard for that position. (Ibid.) Escobar reviewed Ms. Lespagnard’s application and found that she did not meet the minimum qualifications for the position. (UMF No. 27.) On June 8, 2018, Escobar conducted a panel interview 0f Lespagnard, going into the interview with an open mind. (Ibid.) If Lespagnard showed that she was a suitable candidate for the position, Escobar would have been willing to invest in weeks of training her for the position. (Ibid) However, Escobar marked Lespagnard as “d0 not hire,” explaining that she was “not a good fit for Imaging due to the lack 0f patient facing experience and appointment scheduling [experience]” and had “no hands-on experience with insurance.” (Ibid) Escobar informed Alexander that during the interview, Lespagnard could not 0r would not answer questions, could not enunciate why she was interested in the position or training for it, and expressed more interest in staying employed With ECH rather than learning a new job. (Ibid.) In short, Lespagnard was not able to secure any 0f the internal administrative positions to Which she applied. (Alexander Decl. at 119.) Lespagnard testified that during her job search, n0 one at ECH told her that she was disqualified from a position due to her disabilities, and interviewers did not ask about her disability status. (UMF. N0 28.) She also testified that n0 one at ECH made comments about her age, and no one at ECH told her she was not the right fit for a job because of her age. (UMF N0. 29.) D. Lespagnard Cannot Secure An Administrative Job Outside ECH and Files a Lawsuit Against ECH. Lespagnard testified that while she was still employed at ECH in 2018 and while she was applying t0 jobs at ECH, she applied t0 more than 20 positions outside ofECH as well. (UMF No. 30.) These outside applications included “front desk secretarial” and “healthcare administrative” positions. (Ibid.) However, Lespagnard was not offered any 0f those positions. (See ibid.) On August 7, 2018, ECH administratively terminated Lespagnard’s employment after she had been on leave for more than six months. (UMF No. 3 1 .) After this date, Lespagnard -6- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 continued applying for positions outside 0f ECH, including administrative positions, but was unable t0 secure an administrative position similar to the ones to which she had applied at ECH. (See Exhibit C, at pp. 339:8-341 : 13.) Lespagnard testified that during her outside job search, a recruiter unconnected With ECH allegedly told her that “that the hospital was hiring younger people at a cheaper rate.” (UMF No. 32.) However, Lespagnard could not recall the identity of this recruiter and could not recall the name of the company where the recruiter worked. (Ibid.) On February 2, 2019, Lespagnard filed a Complaint against ECH, alleging causes 0f actions for (1) failure t0 accommodate disability; (2) failure to engage in a good faith interactive process; (3) retaliation and interference; (4) disability discrimination; (5) age/age plus discrimination; (6) failure t0 prevent discrimination or retaliation; and (7) wrongful termination in Violation of public policy. III. ARGUMENT ECH is entitled to summary judgment 0r, in the alternative, summary adjudication, on Lespagnard’s causes of action, as they have no merit. A party may move for summary judgment in an action Where the action has n0 merit. (Code CiV. Proc, § 437c(a).) A cause of action has no merit if one or more of the elements of the cause 0f action cannot be separately established 0r a defendant establishes an affirmative defense to that cause of action. (Id. at § 437c(o).) The court must grant the motion for summary judgment if all the papers submitted show that there is n0 triable issue as t0 any material fact and that the moving party is entitled to a judgment as a matter of law. (Id. at § 437c(o).) A motion for summary adjudication may be made as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Id. at § 437c(f).) A. Lespagnard’s Age and Disability Discrimination Claims Lack Merit. In her fifth cause 0f action, Lespagnard alleges “age/age plus discrimination” by ECH. (Exhibit A at pp. 9-10.) California has adopted the three-stage burden-shifting test for discrimination claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz v. Bechtel Nat. Inc. (2000) 24 Ca1.4th 317, 354 (Guz).) Under this framework, a plaintiff bears the initial burden of establishing a prima facie case. (Ibid.) If the plaintiff establishes a prima -7- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 facie case, the burden shifts to the employer t0 proffer a legitimate, nondiscriminatory reason for its actions. (1d. at pp. 355-356.) If the employer does so, the burden shifts to plaintiff to prove that the employer’s proffered reasons are false 0r pretextual. (Id. at p. 356.) “The ultimate burden 0f persuasion 0n the issue of actual discrimination remains with the plaintiff.” (Ibid.) 1. Lespagnard Has N0 Admissible Evidence 0fAge Discrimination. To establish a primafacz'e case of age discrimination under California’s Fair Employment and Housing Act (“FEHA”), Lespagnard must present evidence that she (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) circumstances that give rise to an inference 0f unlawful discrimination. (Id. at p. 355; Hersant v. Department ofSocial Services (1997) 57 Cal.App.4th 997, 1003 (Hersant).) Here, Lespagnard cannot establish a prima facie case 0f age discrimination. She was over age 40 when ECH hired her and when ECH administratively terminated her employment. (UMF. Nos. 1 & 3 1). However, even if this termination constitutes an adverse employment action, Lespagnard cannot adduce any admissible evidence that gives rise t0 an inference 0f unlawful discrimination based on her age. In her Complaint, Lespagnard merely alleges that she “is informed and believes that other long-term employees over the age 40 have been recently terminated by ECH” and that her age “may have been a substantial factor in her termination.” (Exhibit A at $2.) However, at deposition, Lespagnard testified that no one at ECH made comments about her age or informed her that she was not the right fit for a job because 0f her age. (UMF. 29.) She merely offered an inadmissible hearsay statement by an unidentified recruiter unaffiliated with ECH that ECH “was hiring younger people at a cheaper rate.” (UMF N0. 32.)5 Inferences of age discrimination must be based on some evidence, not mere suspicion 0r speculation drawn from “thin air.” (Leslie G. v. Perry & Associates (1996) 43 Ca1.App.4th 5 “‘Hearsay evidence’ is evidence 0f a statement that was made other than by a witness While testifying at the hearing and that is offered to prove the truth 0f the matter stated.” (Cal. EVid. Code, § 1200.) Hearsay evidence is generally inadmissible. (Ibid.) -8- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 472, 483.) Other than speculation, Lespagnard cannot adduce any evidence giving rise to an inference 0f unlawful discrimination.6 Alternatively, even if Lespagnard could establish a prima facie case, ECH had legitimate, nondiscriminatory reasons for administratively terminating Lespagnard’s employment. (See Guz, supra, 24 Ca1.4th at 355-356.) Namely, she took a leave of absence beginning on January 29, 201 8, emailed her supervisor that she would be returning to her Central Services Technician job, and despite being provided With more than six months of leave during and extensive assistance with her alternative job search, Lespagnard could not secure a different position at ECH for which she was qualified. (UMF Nos. 7, 10-20, 22, 26, 31). Lespagnard cannot produce any “substantial responsive evidence” that ECH’s legitimate, nondiscriminatory reasons for her administrative termination are untrue or pretextual. (See Martin v. Lockheed Missiles & Space C0. (1994) 29 Cal.App.4th 1718, 1735.) While Lespagnard may disagree With the assessment 0f her qualifications 0r her termination, “[i]t is not enough for the employee simply to raise triable issues 0f fact concerning Whether the employer’s reasons for taking the adverse action were sound[.]” (Hersant, supra, 57 Cal.App.4th at 1005.) After all, this is “not an action for general unfairness but for age discrimination.” (Ibid.) Lespagnard cannot proffer any evidence of age discrimination, and accordingly, her fifth cause of action must fail.7 2. Lespagnard’s Disability Discrimination Claim Also Fails. Lespagnard’s first cause of action alleges disability discrimination by ECH. (Exhibit A at pp. 4-5.) A primafacz'e case of disability discrimination under FEHA requires the employee to show that she (1) suffered from a disability, (2) was otherwise qualified to do her job, and (3) was subjected t0 adverse employment action because of the disability. (Nealy v. City ofSanta Monica (2015) 234 Ca1.App.4th 359, 378 [emphasis added] (Nealy).) 6 By way 0f background, ECH notes that all 0f the individuals involved in the decision to administratively terminate Lespagnard’s employment were over the age of 40. 7 In her Complaint, Lespagnard alleges “age/age plus discrimination.” (Exh. A at p. 9.) Defendant is not aware 0f and has been unable t0 find any distinct “age plus” cause 0f action. If Lespagnard is referring t0 the combination 0f her age and disability discrimination claims as “age plus” discrimination, neither claim has merit on its own 0r combined. As the saying goes, “two zeros joined together d0 not, unfortunately, add up to one.” MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lespagnard cannot establish a prima facie case of disability discrimination. Even assuming that she suffered from a disability and that her termination constituted an adverse employment action, Lespagnard cannot show that ECH took any improper action because 0f her disability 0r proffer any circumstances suggesting a discriminatory motive. (Wills v. Superior Court (201 1) 195 Ca1.App.4th 143 (Wills); Hersant, supra, 57 Cal.App.4th at 1005 [the “issue is whether discriminatory animus motivated the employer, not whether the employer is Wise, shrewd, prudent, or competent”].) First, ECH administratively terminated Lespagnard’s employment not because of her disability, but because she would not return t0 her position as a Central Services Technician and desired an administrative job instead. (UMF Nos. 7, 8, 12-13.) Unfortunately, she was not qualified for any of the positions to Which she applied. (UMF. Nos. 11, 15-16, 18.) “FEHA does not require a reassignment . . . if there is no vacant position for which the employee is qualified.” (Nealy, supra, 234 Cal.App.4th at 377.) Next, ECH approved multiple requests by Lespagnard to take leave during her employment, and each time, ECH also accommodated her by placing her 0n “light duty” until she was able t0 resume her regular work. (UMF No. 3.) After she began her final leave of absence in 2018, and exhausted all legally protected leave by April 22, 2018, ECH continued approving her requests for ADAAA leave until August 6, 2018, for a total 0fmore than six months of leave. (UMF Nos. 8, 3 1 .) “FEHA does not require the employer t0 provide an indefinite leave 0f absence to await possible future vacancies.” (Nealy, supra, 234 Ca1.App.4th at 377-378.) Moreover, rather than discriminate against Lespagnard, ECH assisted her in her search for an alternate position. (UMF. Nos. 10, 16-20, 25-26.) Importantly, Lespagnard testified that during her job search, no one at ECH told her that she was disqualified from a position due to her disabilities, and interviewers did not ask about her disability status. (UMF N0. 28.) Under these circumstances, Lespagnard cannot establish that ECH administratively terminated her employment because 0f her disability. Finally, even if Lespagnard could present evidence sufficient to establish a prima facie case, ECH had a legitimate, non-discriminatory reason for terminating her employment. As _ 1 0- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discussed, Lespagnard took a leave 0f absence beginning 0n January 29, 2018, emailed her supervisor that she would be returning to her Central Services Technician job, and despite being provided With more than six months 0f leave and extensive assistance with her alternative job search, Lespagnard could not secure a different position at ECH for Which she was qualified. (Alexander Decl. at W69; Hernandez Decl. at W6, 8 & Exhibit H; Exhibit C-40.) Lespagnard cannot adduce any substantial evidence that her administrative termination was motivated by unlawful discrimination. Accordingly, her first cause 0f action must also fail. B. Lespagnard’s Failure t0 Accommodate Claim Lacks Merit. Lespagnard’s second cause of action is a failure to accommodate claim. (Exhibit A at pp. 5-6.) To establish a failure to accommodate claim, Lespagnard must show: (1) she suffers from a disability covered by the FEHA; (2) is qualified t0 perform the essential functions of the position; and (3) defendant failed t0 reasonably accommodate her disability. (Jensen v. Wells Fargo Bank (2000) 85 Ca1.App.4th 245, 256 (Jensen); Lui v. City and County ofSan Francisco (2012) 211 Ca1.App.4th 962, 971 (Lui).) “Two principles underlie a cause 0f action for failure t0 provide a reasonable accommodation. First, the employee must request an accommodation. [Citation] Second, the parties must engage in an interactive process regarding the requested accommodation[.] [Citation.]” (Gelfo v. Lockheed Martin Corp. (2006) 140 Ca1.App.4th 34, 54 (Gelfo).) Plaintiff bears the burden of proving that she had the ability t0 perform the essential functions of a job held or desired with accommodation. (Lui, supra, 211 Cal.App.4th at 971.) 1. ECH Reasonably Accommodated Lespagnard by Providing Her Ample Leave. “[A] finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able t0 perform his 01‘ her duties. (Jensen, supra, 85 Ca1.App.4th at 226.) However, “an employer is not required to offer an accommodation that is likely to be futile[.]” (Ibid.) For example, “an employer would not be required to provide repeated leaves 0f absence (0r perhaps even a single leave 0f absence) for an alcoholic employee with a poor prognosis for recovery.” (Ibid) Here, Lespagnard requested, and ECH approved more than six months of leave as a -1 1- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reasonable accommodation. Lespagnard went on leave beginning on January 29, 2018. (UMF Nos. 7.) After she exhausted all legally mandated leave on April 22, 2018, ECH continued approving her requests for further leave Without job protection, until August 6, 2018. (UMF N0. 8.) ECH was not required to provide her With indefinite leave. (Nealy, supra, 234 Cal.App.4th at 377-378; Hanson v. Lucky Stores, Inc. (1999) 74 Ca1.App.4th 215, 226-228 (Hanson) [“reasonable accommodation does not require the employer t0 wait indefinitely for an employee’s medical condition t0 be corrected.”].) 2. Lespagnard Never Requested anV Reasonable Accommodation t0 Enable Her t0 Return to Her Central Services Technician Position, and Instead, Informed Her Manager She Would Not be Returning to Her Position. Lespagnard also now contends that ECH did not provide her any accommodation that would have allowed her t0 perform her existing job 0r provide her with modified, less physically demanding duties (Exhibit A at 111116, 24.) This contention is disingenuous. As the court explained in Gelfo, “[flirst, the employee must request an accommodation.” (Gelfo, supra, 140 Cal.App.4th at 54.) Lespagnard never requested t0 explore any accommodations to enable her to return t0 her position as a Central Services Technician. (UMF No. 12.) To the contrary, 0n April 18, 2018, Lespagnard emailed her manager informing him that she would not be going back t0 work at the department (prompting her manager t0 ask human resources if he could fill Lespagnard’s position). (UMF N0. 13.) Lespagnard cannot present any evidence that she informed ECH of any restrictions she may have had, or that she requested any reasonable accommodation that could have enabled her t0 return to her Central Services Technician position. By contrast, for example, the plaintiff in Hanson requested a handbrace and “ergonomic knives.” (Hanson, supra, 74 Cal.App.4th at 227.) Even ifECH could have divined a reasonable accommodation for Lespagnard in the absence of a request, this would have been “futile” because Lespagnard informed ECH that she would not be returning to her position. (Jensen, 85 Cal.App.4th at 256; Prilliman v. United Air Lines, Inc. (1997) 53 Ca1.App.4th 935, 954 [“the employee can’t expect the employer t0 read his mind and know he secretly wanted a particular accommodation”].) Accordingly, any Claim by Lespagnard -12- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that ECH failed to accommodate her in her then-existing position is Without merit. 3. Lespagnard was Not Qualified for anV 0f the Internal Positions to Which She Applied. Finally, Lespagnard contends that ECH failed to accommodate her because she was not offered any 0f the administrative positions to Which she applied in 2018. (Exhibit A at 11118-1 1 .) Reassignment to a vacant position constitutes a reasonable accommodation under FEHA, provided that an alternative position is vacant and that “the employee qualifies for it.” (Hanson, supra, 74 Cal.App.4th at 227.) Where the plaintiff sought reassignment, the court must grant summary judgment Where “there simply was n0 vacant position Within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable 0f performing With 0r without accommodation.” (Jensen, supra, 85 Ca1.App.4th at 263.) Of note, FEHA does not require an employer t0 promote the employee 0r create a new position for the employee. (Nealy, supra, 234 Ca1.App.4th 359.) During a lengthy interactive process, Lespagnard applied for approximately 25 administrative positions at ECH in 2018, including approximately 14 PSR positions and 6 Administrative Assistant positions. (UMF No. 14.) However, Lespagnard did not meet the qualifications for any 0f the positions t0 which she applied as all of these administrative positions required, among other things, at least two years 0f relevant hands-on work experience, Which she did not have. (UMF No. 15.) A11 PSR positions at ECH require a minimum of two years’ medical office or medical insurance experience, as well as registration experience. (Ibid) The registration and medical insurance aspects of the PSR position are critical because there is n0 tolerance for inaccurate or incomplete registration as this is a point 0f entry to the Hospital, and because insurance processing and billing must be 100% accurate. (UMF N0. 21.) ECH was not required to eliminate these essential job functions for Lespagnard. (Nealy, supra, 234 Cal.App.4th at 375.) Mass, who was assisting Lespagnard with her job search, affirmatively considered other administrative positions that were open at ECH in 2018, but Lespagnard was not qualified for any of them. (UMF. No. 16.) Mass also searched for non-administrative roles to which -13- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lespagnard had not applied and for Which she might have qualified, but there were n0 suitable open positions for Which she qualified. (UMF. N0. 17.) Yet, despite lacking the minimum qualificationsfor the positions t0 which She applied, ECH forwarded some 0f Lespagnard’s applications t0 the hiring managers. (UMF N0. 18.) On May 9, 2018, hiring manager Chow reviewed one 0f Lespagnard’s PSR applications but did not select Lespagnard because she lacked experience for the position. (UMF N0. 19.) Another hiring manager, Romero, considered Lespagnard for another PSR position and confirmed that she did “not have relevant experience or current skills to be proficient in the role.” (UMF N0. 20.) In addition, when Lespagnard applied for a PSR position in Imaging in June 2018, the hiring manager, Escobar, conducted a panel interview of Lespagnard. (UMF No. 27.) Although Lespagnard did not qualify for the position, Escobar went into the interview With an open mind, and if Lespagnard showed that she was a suitable candidate for the position, Escobar would have been Willing t0 invest in weeks of training her for the position. (Ibid.) However, Escobar marked Lespagnard as “do not hire,” because she lacked patient-facing experience and appointment scheduling experience, and had “n0 hands-on experience with insurance.” (Ibid.) Escobar also informed Alexander that during the interview, Lespagnard could not 0r would not answer questions, could not enunciate Why she was interested in the position or training for it, and expressed more interest in staying employed with ECH rather than learning a new job. (Ibid) In short, Lespagnard was not able to secure any internal positions at ECH because she was not qualified for them. As explained by the court in Jensen, “[r]eassignment means that the employee gets the vacant position if s/he is qualified for it.” (Jensen, supra, 85 Ca1.App.4th at 262.) Beyond this, ECH was not required to promote Lespagnard 0r create a new position for her. (Nealy, supra, 234 Ca1.App.4th 359.) It is also telling that at the same time that Lespagnard was applying t0 positions at ECH in 2018, she applied t0 more than 20 position outside ofECH (including “front desk secretarial” and “healthcare administrative” positions), but was not offered any of those positions. (UMF No. 30.) Lespagnard continued applying for similar positions with other employers even after her separation from ECH, but Without success. (See Exhibit C, at pp. 33928-341 : 13.) She simply did -14- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not have the relevant on-the-j0b administrative experience t0 qualify for these particular types 0f positions. Because there was n0 open vacant position at ECH for which Lespagnard was qualified With or Without reasonable accommodation, ECH is entitled t0 summary judgment 0n her failure to accommodate claim. (Jensen, supra, 85 Cal.App.4th at 263.) C. ECH Engaged in a Lengthy Good Faith Interactive Process with Lespagnard. As her third cause of action, Lespagnard alleges that ECH failed t0 engage in a good faith interactive process. (Exhibit A at p. 7.) Under FEHA, it is an unlawful employment practice “[f]or an employer . . . to fail to engage in a timely, good faith, interactive process With the employee or applicant to determine effective reasonable accommodations, if any, in response t0 a request for reasonable accommodation by an employee or applicant with a known physical . . . disability[.]” (Cal. Gov’t Code, § 12940(n); Gelfo, supra, 140 Cal.App.4th at 61.) The employee must initiate the interactive process unless his or her disability and the resulting limitations are obvious. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971.) Moreover, t0 prevail on a claim for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. (Scotch v. Art Institute ofCalifomia (2009) 173 Ca1.App.4th 986, 1018.) Lespagnard claims that ECH knew of Lespagnard’s disability but “made no good faith attempts t0 engage in the interactive process t0 determine Whether a reasonable accommodation existed.” (Exhibit A at 111138-39.) Assuming Lespagnard is referring to her Central Services Technician position, this claim lacks merit. Other than requesting leave (which ECH granted), Lespagnard never initiated the interactive process to determine if there were effective reasonable accommodations that could have been made. (UMF. No. 12.) In fact, Lespagnard informed ECH that she did not wish to return to her Central Services Technician position, and she sought an administrative job instead. (UMF No. 13.) As t0 reassignment, this case is unlike Jensen, Where plaintiff ‘s employer expected her to identify possible reassignments from the employer’s job listings 0n her own, With little effort -15- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from the employer to identify Which (if any) of the vacant positions met plaintiff’ s limitations and qualifications. (Jensen, supra, 85 Ca1.App.4th at 265.) Indeed, the evidence here indisputably shows that ECH fully engaged in a good faith lengthy interactive process with Lespagnard in her quest for reassignment. As discussed above, Lespagnard applied for approximately 25 administrative positions at ECH in 2018, including approximately 14 PSR positions and 6 Administrative Assistant positions. (UMF No. 14.) Mass, Who was assisting Lespagnard With her job search, affirmatively considered other administrative positions that were open at ECH, but Lespagnard was not qualified for any of them. (UMF. N0. 16.) Mass also searched for non-administrative roles t0 which Lespagnard had not applied and for which she might have qualified, but there were n0 suitable open positions for which she qualified. (UMF. No. 17.) On May 9, 2018, hiring manager Chow reviewed one 0f Lespagnard’s PSR applications. (UMF No. 19.) Another hiring manager, Romero, considered Lespagnard for another PSR position. (UMF No. 20.) In addition, when Lespagnard applied for a PSR position in Imaging in June 2018, the hiring manager, Escobar, conducted a panel interview of Lespagnard. (UMF. No. 27.) In addition t0 Maas, HRBPS Hemani and Alexander also attempted to secure reassignment for Lespagnard as part of the extensive interactive process, including in a formal interactive process meeting on May 24, 2018. (UMF Nos. 4-6, 10-1 1, 16-17, 18, 20, 22, 25-26.) Not only is there no evidence that ECH failed t0 engage in a good faith, interactive process With Lespagnard, but the evidence contradicts Lespagnard’s claim. (See Gelfo, supra, 140 Ca1.App.4th at 61.) Accordingly, this cause 0f action lacks merit. D. Lespagnard’s Retaliation and Interference Claims Lack Merit As her fourth cause 0f action, Lespagnard contends she was subjected t0 retaliation and interference for seeking accommodation and for seeking medical leave under FEHA and the California Family Rights Act (“CFRA”). (Exhibit A at pp. 8-9.) Violations of the CFRA generally fall into categories: (1) “interference” claims in which an employee alleges that an employer denied 0r interfered With her substantive rights t0 protected medical leave, and (2) “retaliation” claims in which an employee alleges that she _ 1 6- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 suffered an adverse employment action for exercising her right t0 CFRA leave. (Rogers v. County ofLos Angeles (201 1) 198 Cal.App.4th 480, 488.) “[C]0urts interpreting the CFRA and the FMLA [Family and Medical Leave Act] have concluded that the statutes only ensure protected leave for a 12-week period.” (Id. at 489.) To establish a retaliation claim, a plaintiff must prove: (1) she engaged in a protected activity; (2) the employer subjected her t0 an adverse employment action; (3) there was a causal link between the protected activity and the employer’s action, z'.e. , that the protected activity was a motivating reason for the employer’s conduct or the adverse employment action; (4) she was harmed; and (5) the employer’s conduct was a substantial motivating factor in causing such harm. (Taylor v. City ofLos Angeles (2006) 144 Cal.App.4th 1216, 1229 (Taylor).) The indisputable evidence in this case shows that Lespagnard took all job protected leave under the FMLA and CFRA without interference or retaliation, and exhausted all such leave by April 22, 2018. (UMF Nos. 7 & 8.) There is absolutely no evidence 0f “interference” With Lespagnard’s right to take leave under the CFRA. There is also no evidence of retaliation by ECH against Lespagnard for having taken this leave as required t0 establish causation. To the contrary, after Lespagnard exhausted all legally protected leave on April 22, 2018, ECH continued to engage in a good faith interactive process with her and approved her requests for further (ADAAA) leave until August 6, 2018. (UMF N0. 8.) In addition, Lespagnard’s Claim 0f retaliation and interference based on a theory 0f seeking accommodation has no merit. First, during her employment, ECH approved multiple requests by Lespagnard t0 take medical leave, and each time, ECH also accommodated her by placing her on “light duty” until she was able to resume her regular work. (UMF N0. 3.) Second, ECH did not subj ect Lespagnard to any adverse employment action for seeking accommodation. As explained, ECH had legitimate, nondiscriminatory and non-retaliatory reasons for administratively terminating Lespagnard’s employment. Namely, Lespagnard took a leave 0f absence beginning on January 29, 2018, emailed her supervisor that she would not be returning t0 her Central Services Technician job, and despite being provided With more than six months 0f leave during and extensive assistance With her alternative job search, Lespagnard could not _ 1 7- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 secure a different position at ECH for which she was qualified. (UMF Nos. 7, 10-20, 22, 26, 3 1). ECH administratively terminated her employment and advised her that she remained in good standing and was eligible for reemployment. Thus, Lespagnard cannot establish causation, or that any conduct by ECH was a substantial motivating factor in causing her harm. (Taylor, supra, 144 Ca1.App.4th at 1229.) Since Lespagnard cannot establish the essential elements 0f this cause 0f action, summary disposition is appropriate. (Aguilar v. Atlantic Richfield C0. (2001) 25 Cal.4th 826, 849 [explaining that defendant meets its burden of showing that a cause 0f action has no merit if defendant has shown that one 0r more elements of the cause of action cannot be established] .) E. ECH Did Not Discriminate or Retaliate Against Lespagnard 0n any Basis, Much Less Fail t0 Prevent Such Conduct From Occurring. As her sixth cause of action, Lespagnard alleges that ECH failed take all reasonable steps to prevent discrimination and retaliation from occurring. (Exhibit A at pp. 10-1 1.) California employers must “take all reasonable steps necessary t0 prevent discrimination and harassment from occurring.” (Northrop Grumman Corp. v. Workers ’ Comp. Appeals Bd .(2002) 103 Ca1.App.4th 1021, 1035; Gov. Code § 12940(k)). An employee proves this statutory tort by establishing the following: (1) the employer owed a duty of care to plaintiff t0 prevent discriminatory conduct; (2) the employer breached that duty; (3) causation; and (4) damages. (Trujillo v. North C0. Transit Dist. (1998) 63 Cal.App.4th 280, 286-287 (Trujillo).) However, there is no resulting liability if it is determined that n0 discrimination occurred. (Id. at pp. 289- 290 [“Employers should not be held liable t0 employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.”].) In other words, this claim is derivative of the discrimination claim. Here, Lespagnard cannot establish that ECH discriminated against her based on her age or disability, or that ECH retaliated against her for any reason. Thus, she cannot assert an independent cause 0f action for failure to prevent discrimination or retaliation under FEHA and ECH is entitled to judgment as a matter 0f law. (Id. at p. 289; Dickson v. Burke Williams, Inc. (2015) 234 Ca1.App.4th 1307, 13 13-1318 [collecting cases and discussing at length that a -18- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff cannot prevail on an independent claim under Government Code section 12940(k) where plaintiff does not allege a FEHA claim 0r where the underlying claims fails.).8 F. Lespagnard’s Wrongful Termination in Violation 0f Public Policy Claim Necessarily Fails. Finally, in her seventh cause of action, Lespagnard alleges wrongful termination in Violation 0f public policy. (Exhibit A at pp. 11-12.) FEHA’s prohibitions 0n age discrimination and disability discrimination support a common law tort action for termination in Violation of “fundamental” public policy. (Jennings v. Marralle (1994) 8 Cal.4th 121, 130; Angeli v. Peterson Tractor, Inc. (1994) 21 Cal.App.4th 981, 987.) “The elements of a claim for wrongful discharge in Violation 0f public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff” s employment, (3) the termination was substantially motivated by a Violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Ca1.App.4th 144, 154.) Here, as discussed, Lespagnard’s discrimination and retaliation claims lack merit. To the extent that her failure to accommodate and any other causes 0f action constitute a fundamental public policy, those claims also fail. Accordingly, Lespagnard cannot maintain a wrongful discharge in Violation 0f public policy against ECH. (Featherstone v. Southern California Permanente Medical Group (2017) 10 Ca1.App.5th 1150, 1169 [“Under California law, if an employer did not Violate FEHA, the employee’s claim for wrongful termination in Violation of public policy necessarily fails.”].) IV. CONCLUSION As each cause of action asserted by Plaintiff against the ECH lacks merit, ECH respectfully requests that this Court grant it motion for summary judgment. Alternatively, ECH requests summary adjudication in its favor. // // 8 In any event, ECH notes that Lespagnard sets forth no facts t0 show that it breached its duty of care to prevent discrimination (or retaliation) from occurring. _ 1 9- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: November 16, 2020 GORDON REES SCULLY MANSUKHANI, LLP LINDA M. MORONEY NIMA NAYEBI Attorneys for Defendant EL CAMINO HOSPITAL By: -20- MEMORANDUM IN SUPPORT OF DEFENDANT EL CAMINO HOSPITAL’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION