Motion For Summary Judgment

Motion

Cal. Super. - 2nd Dist.February 19, 2019

Electronically FILED by § 1 2 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kenneth R. Pedroza, SBN 184906 kpedroza@colepedroza.com Cassidy C. Davenport, SBN 259340 cassidydavenport@colepedroza.com David Z. Sohn, SBN 304167 dsohn@colepedroza.com COLE PEDROZA LLP 2295 Huntington Drive San Marino, CA 91108 Tel: (626) 431-2787 Fax: (626) 431-2788 Attorneys for Defendants KAISER FOUNDATION HOSPITALS and MATHIVANAN ARUNACHALAM OXANA SHAGIN, Plaintiff, Vv. KAISER FOUNDATION HOSPITALS, a corporation; MATHIVANAN ARUNACHALAM, an individual; and DOES 1 through 20, inclusive, Defendants. Yiperior Court of California, County of Los Angeles on 06/18/2020 12:19 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Wong,Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, GLENDALE COURTHOUSE Case No. 19GDCV00222 Hon. Curtis Kin, Dept. E DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES [Concurrently Filed with Separate Statement of Undisputed Material Facts and Compendium of Declarations and Exhibits in Support of Motion] DATE: September 4, 2020 TIME: 8:30 a.m. DEPT: E RESV ID: 577440136724 Action filed: February 19, 2019 Trial date: July 27, 2020 1 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 4, 2020, at 8:30 a.m., in Department E of the Los Angeles County Superior Court, Glendale Courthouse, 600 East Broadway, Glendale, California, 91206, defendants KAISER FOUNDATION HOSPITALS and MATHIVANAN ARUNACHALAM (collectively, “defendants) will, and hereby do, move for an order granting summary judgment in their favor and against plaintiff OXANA SHAGIN. Alternatively, defendants will, and hereby do, move for an order granting summary adjudication on each of the following causes of action and claims for: I. Age discrimination in violation of Govt. Code § 12940; 2. Disability discrimination in violation of Govt. Code § 12940; 3. Failure to accommodate in violation of Govt. Code § 12940(m); 4. Failure to interact in good faith to determine a reasonable accommodation in violation of Govt. Code § 12940(n); 5. Gender discrimination in violation of Govt. Code § 12940; 6. Race/national origin discrimination in violation of Govt. Code § 12940; 7. Violation of Govt. Code § 12940(j) — Hostile work environment based on harassment; 8. Retaliation in violation of Govt. Code § 12940; 0. Violation of Govt. Code § 12940(k) — Failure to prevent discrimination or harassment; 10. ~~ Wrongful termination in violation of public policy; 11. Negligent infliction of emotional distress; 12. Intentional infliction of emotional distress; and 13. The prayer for punitive damages. The motion for summary judgment is made pursuant to Code of Civil Procedure section 437c¢, on the grounds that no triable issues of material fact exist as to plaintiff's complaint and all causes of action stated therein, and defendants are entitled to judgment on the complaint and the causes of action as a matter of law. The alternative motion for summary adjudication is made 2 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pursuant to Code of Civil Procedure section 437c, subdivisions (c) and (f) on the grounds that no triable issues of material fact exist as to the referenced causes of action and prayer for punitive damages, that these have no merit, and that defendants are thus entitled to judgment on these causes of action and the claim of punitive damages as a matter of law. The motion for summary judgment and the alternate motion for summary adjudication are specifically based on the following grounds: FIRST CAUSE OF ACTION Plaintiff’s first cause of action for age discrimination against Kaiser Foundation Hospitals in violation of Government Code section 12940 fails as a matter of law because plaintiff cannot establish a prima facie case of age discrimination, plaintiff does not have substantial admissible evidence of a causal nexus between her termination and her age, and plaintiff has no evidence to establish that defendants’ decision to terminate her was a pretext for age discrimination. Plaintiff’s employment was terminated for legitimate, non-discriminatory and non-retaliatory reasons. Finally, this cause of action is barred by the worker’s compensation exclusive remedy defense. SECOND CAUSE OF ACTION Plaintiff’s second cause of action for disability discrimination against Kaiser Foundation Hospitals in violation of Government Code section 12940 fails as a matter of law because plaintiff cannot establish a prima facie case of disability discrimination, plaintiff does not have substantial admissible evidence of a causal nexus between her termination and any claimed disability, and plaintiff has no evidence to establish that defendants’ decision to terminate her was a pretext for disability discrimination. Plaintiff’s employment was terminated for legitimate, non-discriminatory and non-retaliatory reasons. Finally, this cause of action is barred by the worker’s compensation exclusive remedy defense. THIRD CAUSE OF ACTION Plaintiff’s third cause of action for failure to accommodate against Kaiser Foundation Hospitals in violation of Government Code section 12940, subdivision (m) fails because plaintiff] failed to request any accommodations for any purported disabilities, defendants were unaware 3 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that plaintiff had any disabilities, and assuming plaintiff had any disabilities, she was granted every request for accommodations. Finally, this cause of action is barred by the worker’s compensation exclusive remedy defense. FOURTH CAUSE OF ACTION Plaintiff’s fourth cause of action for failure to engage in the interactive process against Kaiser Foundation Hospitals in violation of Government Code section 12940, subdivision (n) fails because plaintiff failed to request any accommodations for any purported disabilities, plaintiff failed to initiate the interactive process, defendants were unaware that plaintiff had any disabilities, and assuming plaintiff had any disabilities, she was granted every request for accommodations and defendants properly engaged in the interactive process. Finally, this cause of action is barred by the worker’s compensation exclusive remedy defense. FIFTH CAUSE OF ACTION Plaintiff’s fifth cause of action for gender discrimination against Kaiser Foundation Hospitals in violation of Government Code section 12940 fails as a matter of law because plaintiff cannot establish a prima facie case of gender discrimination, plaintiff does not have substantial admissible evidence of a causal nexus between her termination and her gender, and plaintiff has no evidence to establish that defendants’ decision to terminate her was a pretext for gender discrimination. Plaintiff’s employment was terminated for legitimate, non-discriminatory| and non-retaliatory reasons. Finally, this cause of action is barred by the worker’s compensation exclusive remedy defense. SIXTH CAUSE OF ACTION Plaintiffs sixth cause of action for race/national origin discrimination against Kaiser Foundation Hospitals in violation of Government Code section 12940 fails as a matter of law because plaintiff cannot establish a prima facie case of race/national origin discrimination, plaintiff does not have substantial admissible evidence of a causal nexus between her termination] and her race/national origin, and plaintiff has no evidence to establish that defendants’ decision to terminate her was a pretext for race/national origin discrimination. Plaintiff’s employment 4 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was terminated for legitimate, non-discriminatory and non-retaliatory reasons. Finally, this cause of action is barred by the worker’s compensation exclusive remedy defense. SEVENTH CAUSE OF ACTION Plaintiff’s seventh cause of action for harassment due to gender, age, disability, and race/national origin against defendants in violation of Government Code section 12940(j) fails as a matter of law because she cannot provide substantial admissible evidence that legally-defined harassment occurred. Any purported harassment was occasional, isolated, sporadic or trivial and plaintiff cannot prove any purported harassment was based on gender, age, disability, and/or race/national origin. Plaintiff cannot prove that any purported harassment was objectively severe and pervasive as to interfere with work performance by creating a hostile work environment. Moreover, plaintiff failed to report any alleged harassment and defendants were not on notice of any alleged harassment. This cause of action also fails as asserted against Arunachalam because Arunachalam did not employ plaintiff. Finally, this cause of action is barred by the worker’s compensation exclusive remedy defense. EIGHTH CAUSE OF ACTION Plaintiff’s eighth cause of action for retaliation against Kaiser Foundation Hospitals in violation of Government Code section 19240 fails as a matter of law because plaintiff does not have substantial admissible evidence that she engaged in protected activity, and she does not have substantial admissible evidence of a causal nexus between protected activity and her termination. Plaintiff’s employment was terminated for legitimate, non-discriminatory and non- retaliatory reasons. Finally, this cause of action is barred by the worker’s compensation exclusive remedy defense. NINTH CAUSE OF ACTION Plaintiff’s ninth cause of action for failure to prevent discrimination and harassment against Kaiser Foundation Hospitals in violation of Government Code section 12940(k) fails as a matter of law because it is precluded by the absence of any actionable discrimination or harassment. Finally, this cause of action is barred by the worker’s compensation exclusive remedy defense. 5 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TENTH CAUSE OF ACTION Plaintiffs tenth cause of action for wrongful termination against Kaiser Foundation Hospitals in violation of public policy is duplicative of statutory claims referenced above, and fails as a matter of law for the same reasons the underlying statutory claims fail. Finally, this cause of action is barred by the worker’s compensation exclusive remedy defense. ELEVENTH CAUSE OF ACTION Plaintiff’s eleventh cause of action for negligent infliction of emotional distress against defendants fails as a matter of law because the operative complaint does not allege a relevant timeframe for this theory, plaintiff does not have substantial admissible evidence of negligent conduct, and also because the cause of action is barred by the worker’s compensation exclusive remedy defense. TWELFTH CAUSE OF ACTION Plaintiff’s twelfth cause of action for intentional infliction of emotional distress against defendants fails as a matter of law because plaintiff does not have substantial admissible evidence of extreme or outrageous conduct, and also because the cause of action is barred by the worker’s compensation exclusive remedy defense. PRAYER AND CLAIM FOR PUNITIVE DAMAGES Plaintiff’s prayer and claim for punitive damages has no merit and fails as a matter of law. Plaintiff cannot meet her burden under Civil Code section 3294, subdivision (b) because plaintiff cannot produce clear and convincing evidence of conduct constituting malice, oppression or fraud. Furthermore, with respect to Kaiser Foundation Hospitals, plaintiff cannot produce clear and convincing evidence that this conduct was committed, authorized or ratified by an officer, director or managing agent. Accordingly, defendants are entitled to summary adjudication as to all of plaintiff’s claims for punitive damages. This motion is based upon this Notice, the attached Memorandum of Points and Authorities, the concurrently-filed Compendium of Declarations and Exhibits, the Separate Statement of Undisputed Material Facts in support of this motion, all exhibits, pleadings, and records on file herein, all matters of which the Court may take judicial notice, and upon such 6 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES A W N OO XR 0 aN Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 other oral and/or documentary evidence and argument as may be presented to the Court at the time of the hearing on this motion. DATED: June 18, 2020 COLE PEDROZA LLP | > Kenneth R. Pedroza- Cassidy C. Davenport David Z. Sohn Attorneys for Defendants KAISER FOUNDATION HOSPITALS, and MATHIVANAN ARUNACHALAM By: 7 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS PAGE INTRODUCTION ....oiiiiiteiie etic sees eteeeeeatesatese ete beset sa tesa e eee ae eae esbe sues sees 1 STATEMENT (OF THE: (ABE. cosas. onssonsessnimes sotsnssssotesss mama 80551005 855 Sarasa 1 L FACTUAL BACKGROUND... cocoons eet ese sieen 1 A. Plaintiff’s Responsibility In Managing The CHATS Application Was To Ensure The Proper Functioning Of The Contact Center For The Benefit Of Health Care Plan MemDETS .......cc.cooeirieiiiiieiienieeece cence sees 2 B. Plaintiff’s Job Duties And Essential Requirements As An Application Manager Involved Managing Numerous Direct Reports.........cccceveevevieninneencens 2 C. Plaintiff Was Terminated Due To A Documented Three-Year History Of Poor Performance With No IMprOVEMEHE «sue sssssmmssmves assess sss sass os 2 1. In 2016, Plaintiff’s Worst Performance Year, The CHATS Application Had Major Stability Issues That Created Outages And Teipairen] NMerlEE [SCP i008 ws summonses sinmmnssms ss sums mms s vss mss a 3 2. In 2016, Plaintiff's Worst Performance Year, Her Team And Direct Reports’ Satisfaction Ratings Were LOW ........ccccccuevievinicnccnennn. 4 3. Plaintiff’s Performance Declined Progressively, As Documented In Her Performance Reviews From 2013 To 2016 .......cccoecvevieniniieneenenen. 4 a. Plaintiff’s 2014 Mid and End-Of-Year Performance Review Ratings Declined From The Previous Year..................... 5 b. Plaintiff’s Performance Again Declined In 2015..........cccceeneene. 5 c. Plaintiff Had Her Worst Rated Performance Year In 2016.......... 5 D. Plaintiff Was Placed On A Performance Improvement Plan In October DF] ens sss omens NR EH BS SEN SSR SE SRR TSAR RRA SS 6 E. Plaintiff Was Issued A Final Written Warning On February 20, 2017 ................ 6 Fe Arunachalam Terminated Plaintiff On April 28, 2017 ....coovveviieiiiiiiiiieeie e e 7 II. PROCEDURAL HISTORY cc. eee eee sae saan ein 7 LEGAL, STAT ATR emeansunsssussusnssetess sissies 8s se 06s a sis a s 5 sas sss ay 8 LEGAL ANALYSIS cote shee steerer eaae saan 9 L PLAINTIFF'S FIRST, SECOND, FIFTH, AND SIXTH CAUSES OF ACTION FOR AGE, DISABILITY, GENDER, AND RACE/NATIONAL ORIGIN DISCRIMINATION AGAINST KAISER FOUNDATION HOSPITALS FAIL otitis eesti ee te sa testes sate sae esas e ein 9 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. IV. VIL VIL A. Governing Legal Principles, Including The McDonnell Douglas Burden- SHIfHNE TESE...eevieeiiieii ieee eee eee eters sta eebe sree eae ssae sabe enaeas B. Plaintiff Cannot Establish A Prima Facie Case For Discrimination.................. 1. There Is No Evidence That Plaintiff Was Discriminated Based On 2. There Is No Evidence That Plaintiff Was Discriminated Based On Her Alleged Disability ........cccueeiuieiiiiniieiie eects eevee 3. There Is No Evidence That Plaintiff Was Discriminated Based On HET GENAET «coe eee eeaeneaeaeaes 4. There Is No Evidence That Plaintiff Was Discriminated Based On Race/National Origin ......cc.eevveeieeiiiiiieeiie cit s s re ee sees ns C. Plaintiff Was Terminated For A Legitimate, Nondiscriminatory Reason.......... THE THIRD AND FOURTH CAUSES OF ACTION PREMISED ON FAILURE TO ACCOMMODATE AND FAILURE TO INTERACT IN GOOD FAITH FAIL o.oo cece cesses ees THE SEVENTH CAUSE OF ACTION PREMISED ON HOSTILE WORK ENVIRONMENT AGAINST DEFENDANTS FAIL.....cccccoiiiiiiiiiiiinienc cece, A. Plaintiff’s Harassment Claim Fails For The Same Reasons As Her DiSCrimMINAtION CLAIM. ...ceeviiiiiiiieeieeeeeeeeee eee eee e eee ee ee ee eeaeee ee ee er eeneeeaene B. Arunachalam Did Not Employ Plaintiff ..............cccoooiiniiiiiiiiieeceeee, THE EIGHTH CAUSE OF ACTION PREMISED ON RETALIATION FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF NEVER ENGAGED IN PROTECTED ACTIVITY AND SHE CANNOT SHOW ANY ACTIONABLE FORM OF RETALIATION uuu susussssssnsss sonssmnmmsssses ssassnsuasamms A. Plaintiff Did Not Engage In Protected ACtiVIty .......cccoeevirienieniniieeieciene B. Plaintiff Was Terminated For A Legitimate, Non-Discriminatory And Non-Retaliatory Reasons And She Has No Evidence Of A Causal Connection To Alleged Complaints...........c.coveeeieeiiieniiieniieeie cease eevee PLAINTIFF'S NINTH CAUSE OF ACTION FOR FAILURE TO PREVENT DISCRIMINATION OR HARASSMENT FAILS FOR LACK OF ACTIONABLE HARASSMENT OR DISCRIMINATION AS A PREDICATE... o.oo sae sree sere ee eas THE TENTH CAUSE OF ACTION FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY IS DUPLICATIVE OF STATUTORY CLAIMS ASSERTED HEREIN AND FAILS FOR THE SAME REASONS.............. THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIM FAILS ooeee eae ee sae shee sees eae il DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES A. The Operative Complaint Does Not Allege A Relevant Timeframe For THIS TREOTY ..vveeiiiiiieeie eee eee est eeeaae eases b ee eaae enna anne 17 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiff Cannot Establish The Essential Element Of Negligent Conduct.......... 18 VIII. THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM FAILS BECAUSE PLAINTIFF CANNOT ESTABLISH THE ESSENTIAL ELEMENT OF OUTRAGEOUS CONDUCT ......ccccooiiiiiiiiiiiiiiiecienieecece ce IV. ALL OF PLAINTIFF'S CAUSES OF ACTION ARE PRECLUDED BY THE EXCLUSIVE REMEDY PROVISION OF THE WORKER'S COMPENSATION LAW Loot cece sees X. PLAINTIFF'S PRAYER FOR PUNITIVE DAMAGES FAILS AS A MATTER OF LAW BECAUSE THERE ARE NO OFFICERS, DIRECTORS, OR MANAGING AGENTS AND THERE IS NO CLEAR AND CONVINCING EVIDENCE OF OPPRESSION, FRAUD OR MALICE.................. CONICLLTBIOIN ssn smoss ovum sssnens tes sss sins 41655555535 55555.65 6855959555 6045 4858 F393 5 H00H 698 SATHANA SASS 49TH IHF HAS 005 111 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES STATE CASES PAGE(S) Aguilar v. Atlantic Richfield Co. (2001) 25 Calidth 826... eee eee sree Barton v. Alexander Hamilton Life Insurance Co. (2003) 110 CALAPP.ALh TO40 coisas etter eee eres ease sree ss eee eens ennes Carter v. Escondido Union High School Dist. (2007) 148 Cal. APP.Ath 022... eects ers e teers sree sree esse nae sabe sree erases Catalano v. Superior Court (2000) 82 CalLAPP. Ath OL ooo este sb ae eee eee eae eaae eens Catsouras v. Dept. of California Highway Patrol (2010) 181 Cal. APP.Ath 8560... este sree eaten ee City of Moorpark v. Superior Court (1998) I8 Calidth 1143. ecco sbeebs estes este se ene Clark v. Claremont Univ. Ctr. (1992) 6 CAAT, CBT 1000.55 5570500555000 505 5455515, ES 45. S35 AAS 3 Clark v. Claremont University Center (1992) 6 CalLAPP.ALH 039 o.oo eee eee eee sabe eae saan Cole v. Fair Oaks Fire Protection Dist., (1987) 43 Cal.3A 148 eee cece eee ee eerste eras sheet eee ane esae era era ens Dickson v. Burke Williams, Inc. (2015) 234 Cal. APPA 1307 veers eerste eter eee eee essere eres Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. APP.Ath 34 eee este ete eae eae ete eee ee Guthrey v. State of California (1998) 63 CalAPP.Ath T1108... eee eee steers teense eee Guz v. Bechtel National, Inc. (2000) 24 Calth 317 eee eerste ee ete erasers sree ere r enna ans 9, 10, Hanson v. Lucky Stores, Inc. (1999) TA Cal APP.Ath 215 oot eeeateeee see st ee eae saben b ae eae ens Hazen v. Paper Co. v. Biggins (1993) SOT TIS TIA mmm.’ tm 0 0958 A TS AN SA A RAGA 1v DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ibarbia v. Regents of California (1987) Cal ADPD.3A T1318 cece eee ete eee sates este e ste e sabe enbe ene beeenae ens 11 In re Angelia P. (1981) 28 Cal.3A 08, cece eh teeta eee e tae etae sete en see ebae sateen 8 Janken v. GM Hughes Electronics (1996) 40 Call BEAN, 55 cxoomvn semmessormmsen emesis en am mem 50s SES ARR 19 Jensen v. Wells Fargo Bank (2000) 85 CalLAPP.Ath 248... eee ee eerste sabe snes beer ee 13 Kelly-Zurian v. Wohl Shoe Co. (1994) 22 CalLAPP-AT 397 es eeeeeteeteeeeetee eras eee eee era eaae ees 9 Martin v. Lockheed Missiles & Space Co. (1994) 29 CalLAPP.ALh TTL8 o.oo te eee eesbbe sateen ee naees 10 McDonnell Douglas Corp. v. Green (1973) ATT ULS. 792 eee eee eee eters eae et eee sb ae shasta eet ee ehbe este ante e tae eabe ees 9 Merrill v. Navegar, Inc. (2001) IB CA ATI AAG m0, mmm 550505005555 50055 5,559.5 TR FF 045 FER. A 8 Mixon v. Fair Empl. & Housing Comm'n (1987) 192 CalLAPP.3A 1306 ....eioeiiieieie cece ee eters eaters sree eee enneas 10 Mock v. Michigan Millers Mutual Insurance Co. (1992) 4 CalLAPP.Ath 300... cies eee eee erase ete t ae sree enna enees 20 Oakland Raiders v. National Football League (2005) 181 CH SEPA, G2 1 womens sussmssnssns omnes omen 50m os sm mie sss oes 17 Prilliman v. United Air Lines, Inc. (1997) 53 Cal. APP.Ath O35 ece eee eee sabe saree esas 13 Reader’s Digest Assn. v. Superior Court (1984) BT CALA 244... eee eee ee eters eae sabe atest ae ebae nba eee e bee eaae ees 8 Scott v. Phoenix Schools, Inc. (2009) I75 CalLAPP. Ath TO2 cco eee sbae sabe e nee neeas 20 Semore v. Pool (1990) 217 CalLAPDP.3A T1087 eee seater sete e eae sbae sabe ane ee neaes 18 Serriv. Santa Clara University (2014) 2: (Cl INT Ae: BB sec somsmmmnnsos amrmmmsasmsonsons sans noses 0 08 AR SATS 88 9 Vv DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thompson v. City of Monrovia (2010) 186 Cal.APP.Ath 800 .....ccouiieiieeiie ters ebae sabe e eee eees 14 Turner v. Anheuser-Busch, Inc. (1994) T CalAth 1238. cei eters st ee eats ete e esta eabe este e eee baeeaae ens 17 Veronese v. Lucasfilm Ltd. (2012) 212 Cal LEER: | cxoomenvn semmessormmsen tosmmessis en ammo mms uss sss Ss see AAR 17 White v. Ultramar, Inc. (1999) 21 CalAth 5603... eee eee ee eee eee she este b ae sabe enbe eee neaas 19 Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. Ath TO28....o ieee cease erase ete shee esse eae esse a sbae sabe enns 10, 15 Yau v. Santa Margarita Ford, Inc. (2014) 229 CalLAPP.Ath 144 o.oo eee eee eee eee sabe sateen eas 19 FEDERAL CASES McCoy v. WGN Continental Broadcasting Co. (7th Cir. 1992) OST F.2A 308 eee eee ee eae sate ee sate sheet eae sane 17 STATUTES Civil Code SECON 3204... eee e e eee sheets ee ebb sb testes en 19 Corporations Code SECON 12233... ee steer eeeeeebeea teehee sateen este sh teste e eae en 20 Government Code, SECON 12028... eee eee tetera shee sateen teehee steer nie en 15 SEGUE 11212 (ls, cos0s0mmomorosesie nosso sesesinsn 850000095 S008 ASA SA ANAS: passim Labor Code, SECON 3000......cceeeitietiit ieee eet eee ee eae eben ee ebb sb ee st eee eae en 19 SECON 0310... ieee eb teehee seen eaten seas 7 OTHER AUTHORITIES Worker's COMPENSATION ACT.......cccuiiiiiieiiieeieeiieeiee etter e s ae setae teeta esaaeesbe eee sas esas sse enns 19 vi DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Defendants Kaiser Foundation Hospitals (“KFH”) and Mathivanan Arunachalam seek summary judgment or, in the alternative, summary adjudication of plaintiff’s twelve causes of action that are premised on her allegations of discriminatory, harassing, and retaliatory conduct and termination. Plaintiff Oxana Shagin was employed by KFH as an application delivery services manager. Plaintiff was terminated on April 28, 2017 due to performance issues. Starting in 2014, plaintiffs performance declined progressively each year until her termination. Her performance problems are well documented, including mid-year and end-of-year performance reviews from 2014-2016, a performance improvement plan from October to December 2016, and] a final warning letter in February 2017. Plaintiff’s performance issues negatively impaired customer service to health care plan members and also negatively affected her team’s happiness ratings. The legitimate, non-discriminatory and non-retaliatory reasons for plaintiff’s termination were based on her history of declining work performance without improvement, despite multiple opportunities. STATEMENT OF THE CASE I. FACTUAL BACKGROUND Plaintiff began working for KFH as an Application Delivery Services Manager within the Contact Center Applications Department, on July 1, 2013. The Contact Center is the nationwide call center for health care plan members. Plan members can call into the Contact Center to address and resolve inquiries regarding a range of issues relating to their health care, including billing, coverage of services, and personal account information. (UMF 1-3.) Arunachalam was the Executive Director of the Contact Center Applications Department and was plaintiff’s direct supervisor from August 2014 until her termination in April 2017. Arunachalam was responsible for managing the overall technological support for the Contact Center. (UMF 4-5.) 1 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff was responsible for managing various applications that supported the proper functioning of the Contact Center. Applications allow call center agents to retrieve, create and store all information related to plan member interactions. The largest and most important of the applications is called HP CHATS (“CHATS”). (UMF 6-8.) A. Plaintiff’s Responsibility In Managing The CHATS Application Was To Ensure The Proper Functioning Of The Contact Center For The Benefit Of Health Care Plan Members The purpose of the CHATS application is to ensure that the Contact Center is properly functioning for health care plan members to call in and obtain information regarding their various health care-related inquiries. To that end, it is imperative that CHATS maintains a low “incident” rate. Incidents create “outages” for the Contact Center. Plan members are unable to utilize the Contact Center during outages. Outages can impair customer service for thousands of members regarding their health care inquiries. (UMF 9-13.) Successful management of CHATS translates to low incident and outage rates. Plaintiff was responsible for implementing preemptive measures to keep incident rates low. Plaintiff was also responsible for assessing the root causes when incidents occurred, and implementing corrective measures accordingly. (UMF 14-16.) B. Plaintiff’s Job Duties And Essential Requirements As An Application Manager Involved Managing Numerous Direct Reports Plaintiff managed between ten to eighteen direct reports. In her role managing direct reports, plaintiff was responsible for overseeing completion of work assignments, assuming responsibility for decision making, aligning team efforts, budgeting, developing contingency plans, building collaborative relationships, delegating tasks and decisions, and fostering open dialogue amongst departments. (UMF 17-18.) C. Plaintiff Was Terminated Due To A Documented Three-Year History Of Poor Performance With No Improvement Starting in 2014, plaintiff’s performance declined progressively each successive year until her termination. Plaintiff’s ongoing performance issues were reflected in the high rates of CHATS incidents and outages in 2016 when she had her lowest-rated performance reviews. 2 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s performance issues were also reflected in her low “people pulse” scores, which indicated that her team and direct reports were unhappy during her employment. Tellingly, the people pulse scores increased after plaintiff was terminated. (UMF 19-22.) An underlying problem with plaintiff’s performance was her failure to assume the strategic and managerial aspects of her job. These tasks included effective communication, delegation, coordination, global strategic planning, and implementation. Arunachalam attempted] numerous times to help plaintiff improve her performance. However, plaintiff's performance continued to decline. Plaintiff’s performance issues contributed to major stability issues with CHATS and the Contact Center, which in turn debilitated quality service to health care plan members. (UMF 23-27.) 1. In 2016, Plaintiff’s Worst Performance Year, The CHATS Application Had Major Stability Issues That Created Outages And Impaired Member Service As previously noted, outages lead to impaired customer service for thousands of plan members. (UMF 13.) In 2016, CHATS experienced 29 “incidents” and the total outage duration in hours was 143.37, meaning that the Contact Center was not available to customers for 143.37 hours in 2016. To give a comparison of how CHATS can function with proper leadership, in 2017 (after plaintiff was terminated), the incident rate was reduced to 11 and the outage rate was reduced to 54.26 hours. 2018 similarly had a reduced incident rate of 20 and an outage rate of 54.95 hours. An outage rate of 143.37 hours is considered critically high, whereas outage rates of 54.26 and 54.96 hours are reasonable. (UMF 28-31.) The high incident and outage rates of 2016 are directly related to plaintiff's poorest work performance year when she received her lowest mid-year and yearly review ratings of 2 and 2.19 on a 1 (lowest) to 5 (highest) point performance rating scale. To summarize, plaintiff’s deficient performance in her main duty to manage the CHATS application was reflected in the high rate of] incidents and outages in 2016. (UMF 32-33.) 3 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. In 2016, Plaintiff’s Worst Performance Year, Her Team And Direct Reports’ Satisfaction Ratings Were Low People Pulse results measure the happiness level of employees within a specific department. The results are based on calculating satisfaction ratings of all the employees in a department. The unit that measures satisfaction ratings of all employees in a department is called the “Work Unit Index.” In 2016, Work Unit Index for plaintiff's department was 66 out of a 100 maximum. This is a 20-point decrease from the previous year. Comparatively, in 2017 (after plaintiff was terminated), the Work Unit Index increased to 81. The decreased People Pulse results in 2016 correlate to plaintiff’s poor performance that year, especially regarding her ineffective communication and team building with her direct reports. (UMF 34-40.) 3. Plaintiff’s Performance Declined Progressively, As Documented In Her Performance Reviews From 2013 To 2016 The Contact Center Applications Department utilized documented mid-year and end-of- year performance reviews. Each review has various categories representing the various aspects of the job, such as “Meet Our Financial Commitments,” and “Communicates Effectively.” Each category is assigned a numerical rating: 1 (lowest) to 5 (highest). The numerical ratings are defined as follows: 1 is “poor performance”; 2 is “needs improvement”; 3 is “successful”; 4 is “excellent”; and 5 is “exceptional performance.” The ratings for each category are weighted and average out to a single mid-year and end-of-year rating. If the final numerical mid-year or end- of-year rating is not a whole number, then the rating is rounded up or down. For example, 2.51 is rounded up to “successful” whereas 2.49 is rounded down to “needs improvement.” (UMF 41-47.) There are two versions of every performance review: the supervisor uploads one version electronically onto the human resources online system and the second version is a printout provided directly to the employee. Only the version uploaded by the supervisor includes the numeral rating. (UMF 48-49.) 4 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. Plaintiff’s 2014 Mid and End-Of-Year Performance Review Ratings Declined From The Previous Year In 2013, plaintiff’s end-of-year rating was a 3.53. In 2014, both her mid-year and end-of year ratings decreased to 3. Plaintiff was rated lowest in the categories of communicating effectively and developing her team. (UMF 50-52.) For the “Communicated Effectively” category, plaintiff received a 2 rating. Arunachalam noted that, “Oxana often comes across h[u]rried and unfocused in meetings.” “Also have noticed a trend in cancelling meetings at last minute and showing up late consistently.” Plaintiff also received a 2 rating for the “Develops Self/Others.” Arunachalam cited plaintiff’s failure to send her team to technical training sessions and her lack of attention on two team members who were marginally engaged in work assignments. (UMF 53-56.) b. Plaintiff’s Performance Again Declined In 2015 Plaintiff received a 2 rating for her mid-year 2015 performance review. Arunachalam noted plaintiff’s preoccupation with individual tasks instead of providing managerial oversight and strategy for her direct reports. He stated that plaintiff needs to “focus on strategic (more) over handling tactical activities, and actively listen to others (to get their view) by putting herself] in their shooes come up with an outcome [sic] that[’s] good for overall Kaiser Permanente.” (UMF 57-59.) Arunachalam also noted plaintiff’s lack of availability and unresponsiveness to various stakeholders regarding CHATS “incidents,” failure to attend meetings on time, ineffective communication, jumping back and forth between tasks without prioritizing, and problems she had with delegating work. Plaintiff received a 3 rating for her 2015 end-of-year review. (UMF 60-61.) Cc. Plaintiff Had Her Worst Rated Performance Year In 2016 Plaintiff had her worst performance reviews in 2016. Out of fourteen total categories in the performance review, plaintiff received 2 ratings for nine categories and 3 ratings for the remaining four categories. (UMF 62-63.) 5 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Throughout the 2016 performance review, Arunachalam cited many of the same performance deficiencies from the prior two years: failure to respond to her team in a timely fashion and overall unavailability; numerous stability issues with her applications; and disproportionate focus on selective individual contributions rather than on managerial high-level decisions. (UMF 64.) Arunachalam also noted plaintiff’s problems with ineffective communication, budgeting, ensuring all deliverables are tracked properly and completed on time, and regularly mentoring her team with one-on-one meetings. (UMF 65.) Plaintiff received a mid-year rating of 2 and an end-of-year rating of 2.19, both “needs improvement” ratings. Arunachalam communicated to plaintiff that her end-of-year rating was a 2. Plaintiff's 2016 performance reviews incorrectly state her end-of-year rating was a 2.54 and “successful performance.” This was a clerical error. (UMF 66-69.) D. Plaintiff Was Placed On A Performance Improvement Plan In October 2016 Due to plaintiff's ongoing work performance deficiencies through 2016, Arunachalam placed plaintiff on a Performance Improvement Plan (“PIP”) on October 17, 2016. The purpose of the PIP was to document plaintiff’s ongoing performance issues, to assist plaintiff in meeting the requirements of her position, and to improve her performance. The PIP required that plaintiff's behavior immediately improve and comply with the standards and expectations outlined in the PIP. The PIP required plaintiff to meet required expectations by December 30, 2016. (UMF 70-73.) Despite the PIP and Arunachalam’s regular attempts to follow up with plaintiff about her progress, plaintiff's performance did not improve and, in fact, continued to decline. (UMF 74.) E. Plaintiff Was Issued A Final Written Warning On February 20, 2017 From January 23, 2017 to February 12, 2017, plaintiff took a medical leave. On February 20, 2017, Arunachalam issued plaintiff her final written warning. The written warning indicated that Arunachalam would closely monitor plaintiff’s “work behavior, timeliness of problem resolution and assignment completion, various strategic plan developments, and meeting stakeholder’s expectations.” The written warning expressly stated that if plaintiff did not 6 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 immediately improve her performance, she would be terminated. The warning also required that plaintiff provide regular weekly status reports regarding her progress. (UMF 75-79.) Plaintiff’s performance did not improve. From February 20, 2017 to her termination on April 28, 2017, plaintiff continued to demonstrate performance deficiencies: she left important meetings early or missed them entirely, failed to follow up on resolving critical incidents, did not respond to e-mails, failed to define clear roles for her team members, failed to track progress on key activities, failed to properly budget, missed vendor invoice payments, lost a valuable contract, and disrupted communications with business partners requiring assistance from the applications department. (UMF 80-81.) F. Arunachalam Terminated Plaintiff On April 28, 2017 Plaintiff’s performance disrupted the Contact Center and business. Incident and outage rates were high and customer service was impaired. (UMF 82-83.) Consequently, Arunachalam made the decision to terminate plaintiff. This was based on the high rates of critical incidents and outages, low people pulse results, and the documented decline of her performance over three consecutive years starting in 2014, despite numerous opportunities to improve. (UMF 84-85.) II. PROCEDURAL HISTORY Plaintiff filed her civil complaint in this Court on February 19, 2019. The complaint alleges the following causes of action against KFH: (1) age discrimination (Govt. Code § 12940); (2) disability discrimination (Govt. Code § 12940); (3) failure to accommodate (Govt. Code § 12940(m)); (4) failure to interact in good faith to determine a reasonable accommodation (Govt. Code § 12940(n)); (5) gender discrimination (Govt. Code § 12940); (6) race/national origin discrimination (Govt. Code § 12940); (8) retaliation (Govt. Code § 12940); (9) failure to prevent discrimination or harassment (Govt. Code § 12940(k)); and (10) wrongful termination in violation of public policy. The complaint alleges the following causes of action against both defendants: (7) hostile work environment based on harassment (Govt. Code § 12940(j)); (11) 7 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 negligent infliction of emotional distress; and (12) intentional infliction of emotional distress. Plaintiff seeks an award of punitive damages. (Complaint, p. 27.) LEGAL STANDARD “A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477; Code Civ. Proc., § 437¢c, subd. (c).) Alternatively, a trial court can, pursuant to Code of Civil Procedure section 437¢ subdivision (f)(1), grant “summary adjudication as to one or more causes of action within an action [or] one or more claims of damages” if there is no triable issue of material fact and the moving party is entitled to judgment on that claim as a matter of law. The defendant’s burden in moving for summary judgment or summary adjudication is to show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (0)(2).) The defendant’s evidence may negate one or more essential elements of the plaintiff’s claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) Alternatively, the defendant’s evidence may establish that “the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at 853-854.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the challenged cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at 849, 850.) Punitive damages claims, which entail heightened evidentiary burdens, are proper subjects of motions for summary adjudication. (Code Civ. Proc., § 437c¢, subd. (f)(1); Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 96.) In considering such a motion, the court reviews the opposing party’s evidence according to the “clear and convincing” burden of proof. (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 252.) “Clear and convincing” evidence is “evidence so clear as to leave no substantial doubt in the mind of the trier of fact;” it must be “sufficiently strong to command the unhesitating assent of every reasonable mind.” (In re Angelia P. (1981) 28 Cal.3d 908, 919.) To defeat the motion, “the evidence and all the inferences which can be drawn from it must meet the higher standard.” (Reader’s Digest, supra, 8 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 37 Cal.3d at 252.) The statutory requirements of authorization or ratification for entity liability for punitive damages must be proven to the clear and convincing burden of proof. (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal. App.4th 397, 421-422.) LEGAL ANALYSIS L PLAINTIFF’S FIRST, SECOND, FIFTH, AND SIXTH CAUSES OF ACTION FOR AGE, DISABILITY, GENDER, AND RACE/NATIONAL ORIGIN DISCRIMINATION AGAINST KAISER FOUNDATION HOSPITALS FAIL Plaintift’s first, second, fifth, and sixth claims fail because she cannot show a prima facie case for discrimination based on age, disability, gender, or race/national origin and, even if she could, there was a legitimate, non-discriminatory and non-retaliatory reason for terminating plaintiff, which plaintiff cannot show is somehow pretextual in nature. A. Governing Legal Principles, Including The McDonnell Douglas Burden- Shifting Test The Fair Employment and Housing Act (“FEHA”) prohibits an employer from considering an employee’s age, disability, gender, and race/national origin when making decisions related to hiring, firing, or promotions. (Gov. Code, § 12940, subd. (a).) Claims for discrimination under FEHA require proof of discriminatory intent. (Gov. Code, § 12940, subd. (a); see Clark v. Claremont University Center (1992) 6 Cal. App.4th 639, 662.) Because direct evidence of discriminatory intent is rare, California has adopted the three-stage, burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805, for discrimination claims based upon a theory of disparate treatment. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) The three-step McDonnell Douglas test applies in the summary judgment context. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860.) The McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. (Guz v. Bechtel National, Inc, supra, 24 Cal.4th at 354.) Plaintiff must prove (1) that he was a member of a protected class, (2) that he was performing competently in the position he held, (3) that he suffered an adverse employment action, and (4) circumstances suggesting discriminatory motive. (/d. at 355.) 9 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 If a prima facie case is established, a presumption of discrimination arises, and the burden shifts to the employer to rebut the presumption by producing admissible evidence that its action was taken for a legitimate, non-discriminatory reason. (Guz v. Bechtel National, Inc, supra, 24 Cal.4th at 355-356.) If the employer sustains this burden, the presumption of discrimination disappears. (Id. at 356.) The plaintiff then has an opportunity to attack the employer’s proffered reason as being untrue and a mere pretext for discrimination. (/bid.) This requires “‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App.4th 1718, 1735, citation omitted.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz v. Bechtel National, Inc, supra, 24 Cal.4th at 361, tn omitted.) Retaliation claims under FEHA are subject to the same burden-shifting test. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) B. Plaintiff Cannot Establish A Prima Facie Case For Discrimination Government Code section 12940(a) prohibits employers from discharging persons from employment due to age, disability, gender, or race/national origin, among other reasons. Discriminatory intent by the employer is a necessary element of a claim made under this statute. (Clark v. Claremont Univ. Ctr. (1992) 6 Cal. App.4th 639, 662.) Here, plaintiff has no evidence that would permit a reasonable factfinder to find discriminatory animus. What is more, plaintiff must prove that her job performance was satisfactory as part of her prima facie case. (Mixon v. Fair Empl. & Housing Comm ’n (1987) 192 Cal.App.3d 1306, 1318.) Plaintiff cannot establish this essential element, either, as there is a documented history of deficient work performance and progressively declining performance over three consecutive years without improvement, despite being given multiple opportunities. See Section I, C., supra. (UMF 19-69.) 1. There Is No Evidence That Plaintiff Was Discriminated Based On Agd Plaintiff’s allegations regarding age discrimination are that Arunachalam told her “the organization was aging,” that she should “only hire people under the age of thirty (30),” and that 10 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Arunachalam told her that she should retire. Plaintiff later testified at her deposition that Arunachalam never specified the age of candidates she needed to hire. Plaintiff also testified that Arunachalam never told her that she should retire. (UMF 86-88.) From about 2015-2017, the average age of the Contact Center Applications Department was approximately 46 years old. The Contact Center Applications Department is a part of the larger information technology department at KFH called “HP Bio.” In order to provide more opportunities to young career applicants and incorporate different perspectives, HP Bio created a program to hire recent graduates for at least 10% of all new hires. Plaintiff acknowledged this program during her deposition. Arunachalam denies ever telling plaintiff that “the organization was aging.” However, to the extent that he did make any comments about hiring younger applicants, he made them in the context of HP Bio’s program to hire recent graduates, not as a result of age discrimination. (UMF 89-94.) Hiring under an established recruiting program from colleges or universities is not in and of itself an unlawful practice. (Gov. Code, § 12940 subd. (a)(5)(A).) Further, a goal of hiring 10% recent graduates per year in an organization where the average employee is over 50 years is not sufficient to establish pretext. (See Ibarbia v. Regents of California (1987) Cal. App.3d 1318, 1329-1330.) There is no evidence that defendants hired applicants over the age of 40 in a proportion less than their percentage in the pool of actual applicants. Further, contrary to plaintift’s allegation in her Department of Fair Employment and Housing (“DFEH”) Complaint, Arunachalam has hired people over the age of 40 in his department. (UMF 95.) Significantly, plaintiff never made any complaints regarding Arunachalam’s comments of perceived age discrimination, and she can provide no other evidence to establish age discrimination against KFH. (UMF 96.) 2. There Is No Evidence That Plaintiff Was Discriminated Based On Her Alleged Disability Before commencement of the instant lawsuit, Arunachalam was never aware, nor did he suspect, that plaintiff had any disabilities. Plaintiff testified that she was placed off work by her medical providers on April 28, 2017, and that KFH terminated her on April 28. However, 11 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff testified that she never communicated to anyone at KFH that she was placed on medical leave on April 28, 2017. (UMF 97-99.) Plaintiff also alleges in her DFEH Complaint that, in July 2016, as a result of a leg injury she suffered, she was recommended surgery but could not undergo the surgery because she was forced to work instead. This is false. Plaintiff testified that she did not take any medical leave as a result of her leg injury and only discovered that she needed surgery after she was terminated. (UMF 100-101.) Accordingly, plaintiff fails to establish that she was discriminated based on her disability. 3. There Is No Evidence That Plaintiff Was Discriminated Based On Her Gender At her deposition, plaintiff failed to provide any testimony of how she was discriminated based on gender. Plaintiff’s testimony is entirely limited to perceptions of her mistreatment at work, without connecting that mistreatment to an underlying discriminatory animus based on gender. Plaintiff testified that Arunachalam never made any comments about plaintiff being a woman or how being a woman related to her job performance. (UMF 102-103.) Plaintiff fails to explain, other than in conclusory terms, how Arunachalam’s treatment of] her was motivated by a discriminatory animus. Plaintiff fails to show how her gender was a “determinative factor” for any of Arunachalam’s alleged actions. (See Hazen v. Paper Co. v. Biggins (1993) 507 US 604, 610.) Plaintiff’s claim in her DFEH Complaint that Arunachalam did not hire females is also false. (UMF 104.) Thus, plaintiff fails to establish that she was discriminated based on her gender. 4. There Is No Evidence That Plaintiff Was Discriminated Based On Race/National Origin Plaintiff cannot proffer any evidence that Arunachalam discriminated against her due to her race or national origin. In fact, plaintiff admits that she does not know whether she was treated differently because of her race or national origin: “I don’t know if it’s race, nationality, whatever — I was treated differently.” (UMF 105.) 12 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The only specific example she provides is that Arunachalam once told her that he “hated her accent.” Arunachalam denies that he ever made this comment and plaintiff provides no corroborating evidence to support this. Plaintiff also never reported or complained about this comment. (UMF 106-108.) This unreported, isolated statement was neither severe, nor pervasive. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1122-1123.) The allegation in plaintiff’s DFEH Complaint that Arunachalam did not hire Caucasians is also false. (UMF 109.) Thus, plaintiff fails to establish that she was discriminated based on her race/national origin. C. Plaintiff Was Terminated For A Legitimate, Nondiscriminatory Reason Assuming, arguendo, that plaintiff could somehow establish a prima facie case for discrimination, the burden then shifts to the employer to rebut the presumption by producing admissible evidence that its action was taken for a legitimate, nondiscriminatory reason. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355-356.) To reiterate once more, plaintiff was terminated based on overwhelming evidence of poor work performance over three years. See Section I.C., supra. (UMF 19-69.) This reason stands on its own in justifying plaintiff's discharge, and it bears no conceivable connection to plaintiff's age, alleged disability, gender, or race/national origin. Given the evidence of the legitimate, non-discriminatory and non- retaliatory reasons for termination, plaintiff must sustain a shifted burden to show this given reason is pretextual to defeat summary judgment. (Guz, supra, 24 Cal.4th at 360.) II. THE THIRD AND FOURTH CAUSES OF ACTION PREMISED ON FAILURE TO ACCOMMODATE AND FAILURE TO INTERACT IN GOOD FAITH FAIL Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request or be perceived as needing an accommodation. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.) Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. (See Jensen v. Wells Fargo Bank (2000) 85 Cal. App.4th 248, 266.) While a claim of] failure to accommodate is independent of a cause of action for failure to engage in an interactive 13 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dialogue, each necessarily implicates the other. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.) A term of leave from work can be a reasonable accommodation under FEHA. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226.) Arunachalam was never aware that plaintiff had any disabilities. (UMF 97.) Plaintiff never informed defendants that she was placed off work due to medical reasons on April 28, 2017. (UMF 99.) There is no evidence that defendants failed to grant any requests for accommodations, if requested. Defendants never denied plaintiff any requests for medical leave. (UMF 110.) Plaintiff never initiated the interactive process and defendants had no knowledge of any purported disabilities. III. THE SEVENTH CAUSE OF ACTION PREMISED ON HOSTILE WORK ENVIRONMENT AGAINST DEFENDANTS FAIL A. Plaintiff’s Harassment Claim Fails For The Same Reasons As Her Discrimination Claim To show a prima facie case for a hostile work environment, plaintiff must prove: (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected class; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) the employer is liable. (Thompson v. City of Monrovia (2010) 186 Cal. App.4th 860, 876.) Plaintiff’s discrimination allegations mirror the harassment allegations, and for the reasons the alleged statements cannot support a claim for discrimination, they also cannot support a claim for harassment. See Section 1.B.1-4, supra. (UMF 86-109.) Therefore, plaintiff’s harassment claim fails. B. Arunachalam Did Not Employ Plaintiff Unlike plaintiff's other FEHA causes of action, plaintiff alleges her harassment cause of action against both Arunachalam and KFH. However, Arunachalam was not plaintiff's employer and thus this cause of action fails against Arunachalam. (UMF 111-112.) FEHA predicates potential liability on the status of the defendant as an employer, and the status of the plaintiff as an employee. (See Gov. Code, § 12940, subds. (a), (j), (k).) 14 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Arunachalam did not employ plaintiff. Only KFH is identified in plaintiff's wage statements. (UMF 113.) (Gov. Code, § 12928 [“‘employer’ . . . includes any person or entity identified as the employer on the employee’s Federal Form W-2 (Wage and Tax Statement)”].) Accordingly, this cause of action against Arunachalam fails as a matter of law. As a non- employer, Arunachalam is not liable to plaintiff under FEHA. IV. THE EIGHTH CAUSE OF ACTION PREMISED ON RETALIATION FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF NEVER ENGAGED IN PROTECTED ACTIVITY AND SHE CANNOT SHOW ANY ACTIONABLE FORM OF RETALIATION Plaintiff claims that her termination was in retaliation for complaining about harassment and discrimination in the workplace. To establish a prima facie case of retaliation, a plaintiff must show (1) she engaged in protected activity, (2) she was subjected to an adverse employment action, and (3) there is a causal link between the two. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A. Plaintiff Did Not Engage In Protected Activity Plaintiff’s eighth cause of action for retaliation is based on activity purportedly protected by Government Code section 12940, subdivision (h), which protects an employee who opposes a discriminatory practice forbidden by FEHA or who files a complaint against discriminatory conduct under FEHA. Plaintiff claims that her termination was in retaliation for complaining about harassment and discrimination in the workplace. (UMF 114.) Specifically, plaintiff alleges that she complained to Vice President of Contact Centers in 2014, James Dunn, to Human Resources representative, Dawn Pivnick-Murphy, and to Human Resources representative, Bonnie Hacke. Plaintiff later testified that she never complained to James Dunn about any harassment or discrimination. (UMF 115-116.) Plaintiff met with Pivnick-Murphy on December 28, 2015. Plaintiff did not complain about Arunachalam treating her unfairly based on any protected class. Rather, plaintiff’s remarks focused on work related issues, such as her disagreement with receiving a 2015 mid- year rating of 2 and her communication issues with Arunachalam. These statements were divorced from any allegations of discriminatory conduct. Plaintiff never filed any complaint 15 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 regarding discriminatory conduct with Pivnick-Murphy, or requested that Pivnick-Murphy initiate any investigations. Furthermore, Pivnick-Murphy never advised plaintiff that opening an investigation could backfire and negatively impact plaintiffs career, and plaintiff does not have any substantial evidence to support this allegation. (UMF 117-121.) Plaintiff made a reference to Arunachalam’s “Circle of Trust” in speaking with Pivnick- Murphy. Plaintiff explained that she was excluded from participating in a meeting. However, plaintiff did not state that she believed her age, disability, gender or race or national origin were the reasons for Mr. Arunachalam’s actions towards her. She certainly never complained that Arunachalam was engaged in unlawful behavior. (UMF 122-125.) In fact, plaintiff admits she does not know whether she was treated differently because of her race or nationality. (UMF 105.) Plaintiff met with Hacke on February 28, 2017 to discuss her PIP, her workload, and plaintift’s disagreement with Arunachalam’s evaluation of her performance. Plaintiff made a vague reference about Arunachalam promoting “his own people,” but did not provide any specifics about who these people were, whether or not they were deserving of promotions, or how Arunachalam’s evaluation of her performance was motivated by her membership in a protected class. Plaintiff did not report to Hacke that plaintiff believed Arunachalam’s evaluation of her work performance was motivated by her age, disability, or race or national origin. Plaintiff never requested that Hacke initiate an investigation. (UMF 126-129.) B. Plaintiff Was Terminated For A Legitimate, Non-Discriminatory And Non- Retaliatory Reasons And She Has No Evidence Of A Causal Connection To Alleged Complaints Plaintiff’s retaliation cause of action fails for the additional and independent reason that she cannot establish a causal link between any protected activity and her termination. The decision to terminate plaintiff had nothing to do with plaintiffs interactions with Pivnick- Murphy or Hacke. At the time Arunachalam decided to terminate plaintiff, Arunachalam did not know she had had made any purported complaints to Pivnick-Murphy or Hacke. (UMF 130- 131.) 16 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff may attempt to refute the stated reasons for her termination. However, it is not sufficient for her to contend that the termination was “wrong, mistaken, or unwise.” (Veronese v. Lucasfilm Ltd. (2012) 212 Cal.App.4th 1, 21.) Even if an employer’s decision-making seems “erroneous to outsiders,” it is not necessarily pretextual for that reason. (/bid.) Proffered reasons for a termination, if non-retaliatory on their face and honestly believed by the employer, preclude a finding of retaliation. (McCoy v. WGN Continental Broadcasting Co. (7th Cir. 1992) 957 F.2d 368,373.) V. PLAINTIFF’S NINTH CAUSE OF ACTION FOR FAILURE TO PREVENT DISCRIMINATION OR HARASSMENT FAILS FOR LACK OF ACTIONABLE HARASSMENT OR DISCRIMINATION AS A PREDICATE Plaintiff alleges a claim for failure to prevent harassment and discrimination as a violation of Government Code section 12940(k). However, this cause of action is obviated because there is no evidence of actionable harassment or discrimination toward plaintiff to begin with. (See Dickson v. Burke Williams, Inc. (2015) 234 Cal. App.4th 1307, 1315, 1318.) VI. THE TENTH CAUSE OF ACTION FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY IS DUPLICATIVE OF STATUTORY CLAIMS ASSERTED HEREIN AND FAILS FOR THE SAME REASONS An essential element of the common-law wrongful termination claim is that the alleged public policy at issue be expressed in a statute or constitutional provision. (See Carter v. Escondido Union High School Dist. (2007) 148 Cal.App.4th 922, 925.) Here, plaintiff’s claim for common-law wrongful termination is predicated upon the purported FEHA violations. Her wrongful termination claim is thus derivative of FEHA claims and fails for the same reasons that those causes of action fail. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256-1257, City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1159.) VII. THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIM FAILS A. The Operative Complaint Does Not Allege A Relevant Timeframe For This Theory “[ The pleadings set the boundaries of the issues to be resolved at summary judgment. A ‘plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.) 17 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, the complaint is devoid of any facts applicable to plaintiff’s employment with KFH regarding this claim. Plaintiff’s complaint predicates this cause of action on events that occurred between August 2017 to February 2018, after plaintiff was terminated. The complaint also refers to the negligent conduct of “YANG AND CAMPOS.” However, there is no Yang or Campos named in this lawsuit, or anywhere in the general allegations of the complaint. (UMF 132-135.) B. Plaintiff Cannot Establish The Essential Element Of Negligent Conduct The elements of negligent infliction of emotional distress (“NIED”) are (1) negligence by the defendant, (2) plaintiff’s suffering of severe or extreme emotional distress, and (3) defendant’s negligence was a substantial factor in causing plaintiff's serious emotional distress. (CACI No. 1620) Plaintiff asserts that defendants’ alleged discrimination, harassment, and retaliation, caused her serious emotional distress. (UMF 136.) For the reasons explained above, plaintiff cannot establish actionable discrimination, harassment, or retaliation as a predicate to this claim. Moreover, an employer’s supervisory conduct, including termination, cannot support a claim for claim for NIED because supervisory conduct is intentional, not negligent. (Semore v. Pool (1990) 217 Cal. App.3d 1087, 1105.) “An employer’s supervisory conduct is inherently ‘intentional.”” (Cole v. Fair Oaks Fire Protection Dist., (1987) 43 Cal.3d 148, 160.) VIII. THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM FAILS BECAUSE PLAINTIFF CANNOT ESTABLISH THE ESSENTIAL ELEMENT OF OUTRAGEOUS CONDUCT The elements of intentional infliction of emotional distress (“IIED”) are (1) extreme and outrageous conduct by the defendant, (2) done with the intention of causing, or reckless disregard of the probability of causing, emotional distress, (3) plaintiff’s actual suffering of severe or extreme emotional distress, and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Catsouras v. Dept. of California Highway Patrol (2010) 181 Cal. App.4th 856, 874-875.) Plaintiff asserts that defendants’ alleged discriminatory conduct caused her serious emotional distress. (UMF 136.) For the reasons explained above, plaintiff cannot establish actionable conduct as a predicate to this claim. Moreover, the act of terminating employment — 18 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 even if improperly motivated — is insufficient as a matter of law to constitute outrageous conduct (Janken v. GM Hughes Electronics (1996) 46 Cal. App.4th 55, 79-80.) IV. ALL OF PLAINTIFF’S CAUSES OF ACTION ARE PRECLUDED BY THE EXCLUSIVE REMEDY PROVISION OF THE WORKER’S COMPENSATION LAW All of plaintiff’s causes of action fail for the additional and independent reason that they are barred by the exclusive remedy provision of the Worker’s Compensation law. Physical and emotional injuries sustained in the course of employment are barred by the exclusive remedy provisions of the Worker’s Compensation Act (Lab. Code, § 3600 et seq.) and generally will not support an independent cause of action. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160-161.) X. PLAINTIFF’S PRAYER FOR PUNITIVE DAMAGES FAILS AS A MATTER OF LAW BECAUSE THERE ARE NO OFFICERS, DIRECTORS, OR MANAGING AGENTS AND THERE IS NO CLEAR AND CONVINCING EVIDENCE OF OPPRESSION, FRAUD OR MALICE To sustain a punitive damages claim against a corporate employer, the California Civil Code requires a plaintiff to provide clear and convincing evidence that (1) “an officer, director or managing agent” engaged in, authorized, or ratified (2) an act of “oppression, fraud or malice.” (Cal. Civ. Code, § 3294; Barton v. Alexander Hamilton Life Insurance Co. (2003) 110 Cal.App.4th 1640, 1644.) Authorization or ratification must be carried out by an officer, director or managing agent. It is not enough that the employee be a “supervisor who can hire or fire employees|[.]” (Id. at 577.) A managing agent is an employee who has “substantial independent authority over decisions that ultimately determine corporate policy.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 577 [it is not enough that the employee be a “supervisor who can hire or fire employees. . . 1.) The individual must exercise “discretionary authority over. . . formal policies that affect a substantial portion of the company and that are the type likely to come to the attention of corporate leadership. It is this sort of broad authority that justifies punishing an entire company for an otherwise isolated act of oppression, fraud, or malice.” (Roby v. McKesson Corp., supra, 47 Cal.4th at 714-715.) “Director” is a person who is designated, elected, or appointed to act as 19 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES S W S 0 0 R N Wn 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a member of the governing body of the corporation. (See Cal. Corp. Code, § 12233.) “A person who does not have authority to act as a member of the governing body of the corporation ... is not a director as the term is used.” (/bid.) Plaintiff cannot meet this standard. The decision to terminate plaintiff was made by Arunachalam. (UMF 84.) Arunachalam was not an officer, director, or “managing agent” within the meaning of Civil Code section 3294, subdivision (b). He did not have authority to create formal corporate policies or otherwise affect significant aspects of KFH’s business. Arunachalam does not have authority to act as a member of the governing body of KFH. (UMF 137-138.) There is also no clear and convincing evidence of oppression, fraud, or malice—i.e. despicable conduct—conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Insurance Co. (1992) 4 Cal. App.4th 306, 331.) Ordinary employment decisions, even if unlawful, are not “despicable.” (See Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 716-17.) The claim for punitive damages fails. CONCLUSION There is no merit to any of plaintiff’s causes of action. Summary judgment should be granted in its entirety as to both defendants. Failing that, this Court should summarily adjudicate plaintiff’s causes of action, and her claim and prayer for punitive damages in defendants’ favor. DATED: June 18, 2020 COLE PEDROZA LLP Kermeth R. Pedroz TT Cassidy C. Davenport David Z. Sohn Attorneys for Defendants KAISER FOUNDATION HOSPITALS, and MATHIVANAN ARUNACHALAM 20 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES C X J 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed by Cole Pedroza LLP, in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 2295 Huntington Drive, San Marino, California 91108. On the date stated below, I served in the manner indicated below, the foregoing document described as: DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES on the parties indicated below by placing a true copy thereof, enclosed in a sealed envelope addressed as follows: Rob A. Rodriguez Attorneys for Plaintiff Richard A. Apodaca OXANA SHAGIN Ruchika Gupta RODRIGUEZ APODACA LAW FIRM LLP Empire Towers I 3633 Inland Empire Blvd., Suite 575 Ontario, CA 91764 Tel: 909-944-3777 Fax: 909-944-5777 BY EXPRESS MAIL OR OTHER OVERNIGHT DELIVERY —1I deposited the sealed envelope in a box or other facility regularly maintained by the express service carrier, or delivered to an authorized courier or driver authorized by the express service carrier to receive documents, in an envelope or package designated by the express service carrier with delivery fees paid or provided for, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on this office, or otherwise at the party’s place of residence. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 18th day of June, 2020. cto fo, Freddi Lindsey / DEENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Make a Reservation | Journal Technologies Court Portal | Journal Technologies Court Portal Make a Reservation OXANA SHAGIN vs KAISER FOUNDATION HOSPITALS, A CORPORATION, et al. Case Number: 19GDCV00222 Case Type: Civil Unlimited Category: Wrongful Termination Date Filed: 2019-02-19 Location: Glendale Courthouse - Department E Reservation Case Name: OXANA SHAGIN vs KAISER FOUNDATION HOSPITALS, A CORPORATION, et al. Type: Motion for Summary Judgment Filing Party: Case Number: 19GDCV00222 Status: RESERVED Location: Kaiser Foundation Hospitals, a corporation (Defendant) Glendale Courthouse - Department E Date/Time: 01/31/2020 8:30 AM Reservation ID: 577440136724 Fees Description Motion for Summary Judgment Credit Card Percentage Fee (2.75%) TOTAL Payment Amount; $513.75 Account Number: XXXX1853 | 24 Print Receipt I == Reserve Another Hearing Copyright © Journal Technologies, USA. All rights reserved. Number of Motions: 1 Confirmation Code: CR-PFNT2YY56CKWVXBUU Fee Qty 500.00 1 13.75 1 Type: Visa Authorization: 064246 8 View My Reservations Amount 500.00 13.75 $513.75 | Journal Technologies Court Portal Reschedule a Reservation Reservation Reservation ID: 577440136724 Reservation Type: Motion for Summary Judgment Case Number: 19GDCV00222 Case Title; OXANA SHAGIN vs KAISER FOUNDATION HOSPITALS, A CORPORATION, et al. Filing Party: Kaiser Foundation Hospitals, a corporation (Defendant) Location: Glendale Courthouse - Department E Date/Time: May 15th 2020, 8:30AM Status: RESERVED Number of Motions: 1 - Motions to Reschedule Motion for Summary Judgment Reschedule To: Date: 06/26/2020 8:30 AM Location: Glendale Courthouse - Department E Fees Description Reschedule Fee Credit Card Percentage Fee (2.75%) Fee 20.00 0.55 Qty id Amount 20.00 0.55 Description TOTAL Payment Amount: $20.55 Account Number: XXXX7535 | 124 Print Receipt . += Reserve Another Hearing Copyright © Journal Technologies, USA. All rights reserved. Fee Qty Type: Visa Authorization: 011872 Amount $20.55 | Journal Technologies Court Portal Reschedule a Reservation Reservation Reservation ID: 577440136724 Reservation Type: Motion for Summary Judgment Case Number: 19GDCV00222 Case Title: OXANA SHAGIN vs KAISER FOUNDATION HOSPITALS, A CORPORATION, et al. Filing Party: Kaiser Foundation Hospitals, a corporation (Defendant) Location: Glendale Courthouse - Department E Date/Time: June 26th 2020, 8:30AM Status: RESERVED Number of Motions: 1 Motions to Reschedule Motion for Summary Judgment Reschedule To: Date: 09/04/2020 8:30 AM Location: Glendale Courthouse - Department E Fees Description Fee Qty Amount Reschedule Fee 20.00 1 20.00 Credit Card Percentage Fee (2.75%) 0.55 1 0.55 Description TOTAL Payment Amount: $20.55 Account Number: XXXX1853 21 Print Receipt == Reserve Another Hearing Copyright © Journal Technologies, USA. All rights reserved. Fee Qty Type: Visa Authorization: 009814 Amount $20.55