Opp_msj_grill_finalOppositionCal. Super. - 4th Dist.March 29, 201810 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Carney R. Shegerian, Esq., State Bar No. 150461 CShegerian @ Shegerianlaw.com Anthony Nguyen, Esq., State Bar No. 259154 ANguyen @Shegerianlaw.com Irene Gharapet, Esq., State Bar No. 322624 IGharapet@ Shegerianlaw.com SHEGERIAN & ASSOCIATES, INC. 225 Santa Monica Boulevard, Suite 700 Santa Monica, California 90401 Telephone Number: (310) 860-0770 Facsimile Number: (310) 860-0771 Attorneys for Plaintiff, SUSANNE LEE GRILL ELECTRONICALLY FILED Superior Court of Califarnia, County of Orange 03/19/2019 at 05:04:00 PM Clerk of the Superior Court By Georgina Ramirez, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE SUSANNE LEE GRILL, Plaintiff, VS. MEDSEARCH FINANCIAL, INC., UCI UNIVERSITY PHYSICIANS AND SURGEONS, BRIAN BURROUGHS, and DOES 1 to 100, inclusive, Defendants. N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e Case No.: 30-2018-00983040-CU-WT-CJC The Honorable Ronald L. Bauer PLAINTIFF SUSANNE LEE GRILL’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MEDSEARCH FINANCIAL, INC. AND BRIAN BURROUGHS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION (Filed concurrently with Separate Statement of Disputed Facts; Declaration of Carney R. Shegerian; Declaration of Susanne Lee Grill; Objections to Evidence; Notice of Lodging Federal Authorities; Notice of Filing Complete Deposition Transcripts; Appendix of Evidence; [Proposed] Order on Plaintiff’s Objections to Evidence; [Proposed] Order Denying Summary Judgment) Date: Time: Dept.: April 2, 2019 9:00 a.m. CX103 Trial Date: Action Filed: May 6, 2019 March 29, 2018 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. 2 TABLE OF CONTENTS INTRODUCTION STATEMENT OF FACTS A. m oo 0 = Grill Began Her Exemplary Career at UCI Through MEDsearch on April 3, 2017. i. Grill Was Praised for Her Performance While Working at UCL ii. Grill’s Performed Well Throughout the Entirety of Her Employment. iii. MEDsearch’s Branch Manager Never Expressed Any Issues with Grill’s Performance or Conduct. iv. Grill’s Supervisor Gonzalez Never Expressed Any Issues with Grill’s Performance or Conduct Either. v. Rios, Grill’s Other Supervisor, Also Never Expressed Any Issues with Grill’s Performance or Conduct at Work. vi. Roman Goes as Far as To Provide Grill with A Positive Work Reference and Recommends Her for Hiring. Grill Was Qualified for Her Position as a Physician Collector. Grill Reasonably Believed That She Was A Long-Term Employee at UCI. Roman Represented to Grill That Her Position Was “Long-Term.” MEDsearch, Brian Burroughs, and UCI Were All Aware of Grill’s Pregnancy and Miscarriage. Grill Informed Gonzalez, Roman, And Brennan That She Was Having a Miscarriage. Gonzalez, Roman, and Brennan Were Also Informed of Grill’s Symptoms and Need to go to the Emergency Room. Even Burroughs, the President of MEDsearch Was Aware Of Grill’s Pregnancy and Miscarriage. Despite the Severity of Grill’s Condition, She Was Only Provided With Minimal Time Off -Three Days. MEDsearch, Brian Burroughs, and UCI Terminate Grill After One Day of Finding Out That She Was Pregnant and Was Having a Miscarriage. Grill’s Termination Request Was Circulated to Management, Yet Nobody Spoke Up About the Circumstances Under Which Grill Was Being Fired - Meanwhile She Was in the Hospital Getting Operated On. Defendants Allege That Grill Was Terminated Because Of Her “Negative Attitude,” “Rude Comments,” and “Confrontational Behavior.” -i- Page WwW N N N ~~ BB WL W WwW on PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. Defendants Completely Fail to Provide Evidence of Grill’s Alleged Rude and Abrupt Behavior. i. Defendants Cannot Point to a Single “Rude Comment” Allegedly Made by Grill. ii. Defendants Cannot Provide Any Examples of When Grill was Allegedly Being “Abrupt”. On the Contrary, Defendants Believed Grill to Be a Respectful Employee. Rios, Roman, and Burroughs All Testified that Grill Was Pleasant Based on Their Interactions with Her. Grill Was Never Disciplined or Given Any Warning as to Her Alleged Negative Attitude; There is No Evidence to Support These Allegations. Even Rios is Not Aware of Any Employee Complaints Made Against Grill. Defendants’ Did Not Conduct an Investigation as To Grill’s Alleged Behavior, Which Allegedly Resulted in Her Termination. MEDsearch Did Not Explore Any Alternatives Before Terminating Grill. Burroughs Testifies That the Only Bases for Ending an Employee’s Assignment Would Be for Lack of Performance or Fraud. Moments After She Arrived Home from the Hospital, Grill Received News of Her Termination. i. Grill Followed the Correct Protocol Before Taking Time Off. ii. Burroughs Did Not Provide Grill with Options, Even Though He Knew She Had Just Had A Miscarriage. MEDsearch Fails to Adhere to Its Own Policy Against Harassment W. Defendants’ Conduct Causes Grill Severe Emotional Distress. ARGUMENT A. The Controlling Summary Judgment and Adjudication Standard. i. Grill’s Evidence Must Be Construed Liberally and in Her Favor. Summary Adjudication is Available Only for Specific Noticed Issues. i. Grill’s Prayer for Punitive Damages Survives as a Matter of Law. Substantial Evidence Negates Adjudication of Grill’s Harassment Claims. Substantial Evidence Establishes Grill’s Discrimination Claims on the Bases of Disability and Sex, Including Pregnancy. There is Ample Evidence to Establish Grill’s Retaliation Claims on the Basis of Disability and Sex, Including Pregnancy. -1i- 10 10 10 10 11 11 11 12 12 13 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i. Substantial Evidence of Pretext Negates Summary Judgment in its Entirety. a. False and Shifting Discharge Reasons Evince Discrimination and Retaliation. b. Suspect Timing Establishes a Causal Connection. c. Grill’s Excellent Performance Evinces Pretext. d. Defendants’ Failure to Investigate Evinces Pretext. F. Grill’s Claim for Failure to Prevent Discrimination, Harassment, or Retaliation Survives. G. The Claims for Failure to Accommodate and Failure to Engage in the Interactive Process Survives. H. Defendants Never Assert Any Undue Hardship. I. Grill’s Breach of Contract Claims Survive. J. The Evidence Supports Negligent Hiring, Supervision, and Retention. K. Grill’s Claim for Wrongful Termination in Violation of Public Policy Survives. L. Defendants’ Outrageous Conduct, Which Caused Grill Severe Emotional Distress, Negates Adjudication of the IIED claim. i. Defendants’ Reliance on the Workers” Compensation Exclusivity Rule is Misguided. CONCLUSION iii 13 14 14 15 15 16 16 17 17 18 19 19 20 20 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases AM. v. Albertsons, LLC (2009) 178 Cal. App.4th 455 Accardiv. Sup. Ct., (1993) 17 Cal.App.4th 341 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832 Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101 City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143 Colarossi v. Coty US Inc. (2002) 97 Cal. App.4th 1142 Cole v. Fair Oaks Fire Prot. Dist. (1987) 43 Cal.3d 148 Dee v. Vintage Petroleum (2003) 106 Cal. App.4th 30 Delesstine v. Ft. Wayne State Hosp & Training Ctr., (7th Cir. 1982) 682 F.2d 130 Dickson v. Burke Williams, Inc. (2015) 235 Cal. App.4th 1307 Doe v. Capital Cities (1996) 50 Cal.App.4th 1038 Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590 Flowmaster, Inc. v. Superior Court (1993) 16 Cal. App.4th 1019 Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 Fretland v. County of Humboldt, (1999) 69 Cal. App.4th 1478 Gelfo v. Lockheed Martin Corp., 140 Cal. App.4th 34, fn. 22 (2006) Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66 Grill v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590 Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317 Harris v. Forklift Systems (1993) 510 U.S. 17 Homestead Sav. v. Sup. Ct. (Dividend Develop. Corp.) (1986) 179 Cal. App.3d 494 Jensen v. Wells Fargo Bank, supra, 85 Cal. App.4th at 260 Kelly v. Stamps.com Inc. (2005) 135 Cal. App.4th 1088 Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397 -iv- Page 16 20 10, 11 11 19 19 11, 15 19 12 15 16 18 14 11 17 20 16 11,19 14 passim 12 11 16 13 12 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Livitsanos v. Sup. Ct. (1992) 2 Cal. 4th 744 20 McCoy v. Pacific Maritime Ass'n (2013) 216 Cal. App.4th 283 13 Molko v. Holy Spirit Ass'n (1988) 46 Cal.3d 1092 19 Moore v. Regents of Univ. of Cal. (2016) 248 Cal. App.4th 216 14 Murray v. Oceanside Unified School Dist., (2000) 79 Cal.App.4th 1338 20 Nazir v. United Airlines, Inc. (2009) 179 Cal. App.4th 243 11 Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456 11 Payne v. Northwest Corp. (9th Cir. 1997) 113 F.3d 1079 14 Prilliman v. United Airlines, Inc., 53 Cal.App.4th 935 (1997) 16 Reeves v. Sanderson Plumbing Prods. (2000) 530 U.S. 133 13, 14 Renteria v. County of Orange (1978) 82 Cal.App.3d 833 19 Roby v. McKesson Corp. (2009) 47 Cal.4th 686 12 Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728 11 Scotch v. Art Institute of California (2009) 173 Cal. App.4th 986 16 Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954 16 Village of Arlington Heights v. Mets Hous. Dev. Corp. (1997) 429 U.S. 252 15 Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028 13,15 Z.V. v. Cty. of Riverside (2015) 238 Cal.App.4th 889 18 Zivkovic v. Southern California Edison Co., 302 F.3d 1080 (9th Cir. 2002) 16 Statutes California Civil Code § 3294 11 Code of Civil Procedure § 437 11 Government Code § 12945.1-12945.2 11 Government Code §§ 12900-12996 12,13, 16, 19 -vV- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION “Pleasant,” “Nice” and “Respectful,” are just some of the words defense witnesses used to describe Plaintiff Susanne Lee Grill (“Grill”). Yet the defendants in this case, including MEDsearch Financial, Inc. (“MEDsearch”) and Brian Burroughs (“Burroughs”) claim that the reasoning behind 2 ¢¢ Grill’s termination was due to her alleged “rude comments,” “negative attitude,” and “confrontational behavior.” However, Defendants fail to produce a scintilla of corroborating evidence to justify their alleged “legitimate business reason’ behind Grill’s termination. Furthermore, Grill was terminated one day after informing defendants of her pregnancy, miscarriage, and need for time off. Defendants’ motion for summary judgment/adjudication must be denied for the following reasons: First, there is zero evidence to support defendants’ alleged termination reason: that Grill was rude and had an attitude. Not a single witness is able to articulate any examples or instances when Grill was purportedly rude or had a negative attitude. Grill was never once confronted with this as being an issue during the entirety of her employment, rather, Grill was always praised for being nice, respectful and a good worker. Second, defendants alleged ignorance of Grill’s disability and/or pregnancy fails. There is overwhelming evidence that demonstrates otherwise. Grill notified Defendants’ of her pregnancy and informed them that her body was preparing itself to have a miscarriage. Subsequently, Grill asked Defendants whether she was eligible for sick pay, and Defendants determined that she was eligible for three days of sick pay. As a result, Grill asked for three days off in order to have an emergency procedure completed for her miscarriage. Further, Grill provided Defendants with the miscarriage instructions she had previously obtained from her doctor, in addition to her doctor’s note, which stated, “Ms. Grill had emergency surgery and cannot work until Wednesday 8/30/17.” Third, the timing of the termination is substantial evidence of pretext-the causal connection between the protected activity and termination decision are seldom any closer in temporal proximity. Despite knowing of Grill’s disabling condition, pregnancy, and miscarriage, only one day after Defendants’ found out Grill was pregnant, and was suffering from a miscarriage, Defendants made the decision to terminate Grill’s employment while she was on approved time off. This was detrimental to Grill’s emotional state, as she was already suffering from the mental and physical effects of having a miscarriage, into an uncontrollable spiral of emotional and mental distress that she still suffers from to PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 date. Fourth, Grill performed her job duties well throughout her entire employment with defendants and was even provided with a positive job reference by one of her supervisors subsequent to her termination. This contradicts defendants’ purported termination reason about Grill’s attitude. Fifth, Defendants owner termination reasons are false and inconsistent, showing strong evidence of pretext. Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317, 356. Internal communications and witness testimony provide that Grill’s termination because she was “rude” and had a “negative attitude,” yet Grill was informed that she was being terminated because “UCI no longer had work for [her].” These facts, and the facts that follow, are at the very least disputed to show a model case of harassment, discrimination, and retaliation. As such, and as discussed in greater detail below, Defendants’ Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication, must be denied in its entirety. 2. STATEMENT OF FACTS A. Grill Began Her Exemplary Career at UCI Through MEDsearch on April 3, 2017. In March of 2017, Grill applied to MEDsearch for employment. (PSF 1.) Grill was interviewed by MEDsearch, and she was subsequently considered for a position at The University of California, Irvine (“UCI”), as a Physician Collector. (PSF 2.) Sarah Megally (“Megally”) was the recruiter from MEDsearch assigned to Grill. (PSF 3.) Ultimately, MEDsearch placed Grill at UCI because her skills matched what UCI needed. (PSF 4.) On April 3, 2017, Grill began working on a full-time contracted basis as a Physician Collector at UCI Physician Billing Group. (PSF 5.) While at UCI, Grill worked as a Physician Collector in the Department of Dermatology, Internal Medicine, and Radiology. (PSF 6.) i. Grill Was Praised for Her Performance While Working at UCI. While Grill was working in the Department of Dermatology, her supervisor, Danielle Roman (“Roman”) told her that she was a “good worker,” and to “keep up the good work.” (PSF 7.) Further, Roman told Grill that she liked the way she worked. (PSF 8.) Additionally, Sophia Garo (“Garo”), a supervisor at UCI, told Grill that she was doing a good job. (PSF 9.) n 2 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. Grill’s Performed Well Throughout the Entirety of Her Employment. Grill was never the subject of any disciplinary action. (PSF 10.) Additionally, Grill was never informed that there were issues with her attitude or any aspect of her work. (PSF11.) Grill did not receive performance discipline from MEDsearch during her employment. (PSF 12.) iii. MEDsearch’s Branch Manager Never Expressed Any Issues with Grill’s Performance or Conduct. Further, Paul Napolitano (“Napolitano”), branch manager of MEDsearch, did not have to counsel Grill for any type of performance-related issues, in addition he admitted Grill was not terminated on the basis of her performance. (PSF13.) iv. Grill’s Supervisor Gonzalez Never Expressed Any Issues with Grill’s Performance or Conduct Either. Imelda Gonzalez (“Gonzalez”), Grill’s supervisor in the Department of Radiology, also never criticized Grill’s performance during the few days she worked in the Department of Radiology. (PSF14.) v. Rios, Grill’s Other Supervisor, Also Never Expressed Any Issues with Grill’s Performance or Conduct at Work. Jennifer Rios (“Rios”), the supervisor in the Department of PM&R, Neurosurgery, and Medicine, admits that Grill was not terminated on the basis of her performance. (PSF15.) Furthermore, Rios also personally never expressed any issues with Grill’s performance, and never expressed any dissatisfaction with Grill’s “attitude” or conduct at work. (PSF 16.) vi. Roman Goes as Far as To Provide Grill with A Positive Work Reference and Recommends Her for Hiring. During Grill’s application process for her current job at Ambry Genetics, her current employer reached out to Roman because she was listed as a professional reference for Grill. (PSF17.) Roman described Grill as “determined” and “really friendly.” (PSF18.) Additionally, Roman stated that she would rehire Grill, or recommend her for rehire. (PSF 19.) B. Grill Was Qualified for Her Position as a Physician Collector. Grill has received training in medical billing and coding. (PSF 20.) Grill believed that the training she received from her previous employers, BillPro and Allsafe, were sufficient for her to perform her job at UCL. (PSF 21.) Additionally, Rios believed that Grill was qualified to perform the essential functions 3. PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of her job. (PSF 22.) At no point did Napolitano believe that Grill was not qualified to perform the essential functions of her job. (PSF 23.) C. Grill Reasonably Believed That She Was A Long-Term Employee at UCL. The position Grill applied for was classified as a “Long-Term Contract/Temporary.” (PSF 24.) Grill had the belief that this description could mean that the position constituted either a long-term contract, or a temporary position. (PSF 25.) Further, Napolitano himself defined “Long-Term Contract/ Temporary” as meaning a long-term contract, and one that is on-going. (PSF 26.) Napolitano stated that this can last up to a year, two years, or even five years. (PSF 27.) D. Roman Represented to Grill That Her Position Was “Long-Term.” Further, Roman told Grill that individuals that began working in the Department of Dermatology through an agency were still working there, some of them for as long as two years. (PSF 28.) Roman explained to Grill that the position was going to be long-term, and that she really needed her help in the Department of Dermatology. (PSF 29.) Additionally, Grill was informed that after six months, she would be eligible for benefits. (PSF 30.) Thus, Grill’s understanding was that the position at UCI was long-term. (PSF 31.) E. MEDsearch, Brian Burroughs, and UCI Were All Aware of Grill’s Pregnancy and Miscarriage. Grill was working in the Department of Radiology during the time she began experiencing complications with her pregnancy. (PSF 32.) Grill was about eight or nine weeks pregnant at the time. (PSF 33.) On August 24, 2017 at 7:24 a.m., Grill emailed MEDsearch’s Human Resources Department (“HR”), and informed them that she needed to get a procedure done immediately and asked if she was eligible for sick pay. (PSF 34.) In addition, she sent the same email to Megally at 7:28a.m., and to Stephanie Poblete (“Poblete’) from MEDsearch, at 8:25a.m. (PSF 35.) In the email to Megally, Grill also included a picture of the miscarriage instructions she had previously been provided with by the hospital, which explained the causes of a miscarriage. (PSF 36.) Further, in the email to Poblete, Grill also included a picture which depicted, “ExitCare Patient Information,” “Patient Name: Susanne Grill,” “Attending Caregiver: Cinthya Sotelo, NP”, and “PIH Health.” (PSF 37.) 4- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F. Grill Informed Gonzalez, Roman, And Brennan That She Was Having a Miscarriage. On August 24, 2017, Grill walked into Patty Brennan’s (“Brennan”) office with an upset look on her face, and proceeded to inform Gonzalez, Roman, and Brennan that she was having a miscarriage, and that she was bleeding. (PSF 38.) G. Gonzalez, Roman, and Brennan Were Also Informed of Grill’s Symptoms and Need to go to the Emergency Room. Grill proceeded to show them the miscarriage instructions she had previously obtained from the hospital, and she told them that she was pregnant. (PSF 39.) Grill also stated that she needed to go to the emergency room. (PSF 40.) Further, she informed Gonzalez that she was having really bad cramps, and that she needed to use the restroom frequently. (PSF 41.) H. Even Burroughs, the President of MEDsearch Was Aware Of Grill’s Pregnancy and Miscarriage. Brian Burroughs (“Burroughs”), Owner and President of MEDsearch, became aware of Grill’s pregnancy and miscarriage on August 24, 2017. (PSF 42.) Grill informed both Gonzalez and Burroughs that she might have to have an emergency surgery for her miscarriage because her doctor told her if her symptoms progressed, then an emergency surgery would be required. (PSF 43.) I. Despite the Severity of Grill’s Condition, She Was Only Provided With Minimal Time Off -Three Days. In response to Grill asking if she was eligible for sick pay, Burroughs informed Grill that he had processed three days of sick pay for her. (PSF 44.) On August 25, 2017, at 11:43 a.m., Grill sent Burroughs an email, where she asked Burroughs to pay her sick pay for the dates August 25,2017, August 28,2017, and August 29, 2017. (PSF 45.) Additionally, Grill stated, “Also, please see next email for DR note.” (PSF 46.) On August 25, 2017, at 11:45 a.m., Grill sent her doctor’s note to Burroughs, with the following message, “Please use my sick pay for these 3 days. Thank you.” (PSF 47.) J. MEDsearch, Brian Burroughs, and UCI Terminate Grill After One Day of Finding Out That She Was Pregnant and Was Having a Miscarriage. Grill was terminated only three days after she began working in the Department of Radiology. (PSF 48.) On August 25, 2017 at 1:11 p.m., Rios sent Napolitano the following email, “Good Afternoon, I -5- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 would like to end Suzanne’s assignment effective today, due to her negative attitude. On more than one occasion she would make rude comments or even somewhat confrontational when an issue was brought to her attention.” (PSF 49.) The decision to terminate Grill was made one day after defendants discovered Grill was pregnant, had a miscarriage, and needed to take time off. (PFS 42; PSF 50.) K. Grill’s Termination Request Was Circulated to Management, Yet Nobody Spoke Up About the Circumstances Under Which Grill Was Being Fired - Meanwhile She Was in the Hospital Getting Operated On. After receiving the email from Rios, Napolitano subsequently forwarded this email to Burroughs, in addition to the Vice President and Managing Partner of MEDsearch, Michael Orfield (“Orfield”), and included the following, “Please see Jennifer Rios’ request to end Susanne’s assignment. I will handle today at Spm.” (PSF 50.) On August 25, 2017, Grill was out on approved, sick leave until August 30, 2017. (PSF 51.) On August 25, 2017, about ten minutes after Grill arrived home from the hospital, she received a call from Burroughs informing her that her “assignment had ended.” (PSF 52.) Thus, Grill’s last day of working at UCI was on August 24, 2017. (PSF 53.) L. Defendants Allege That Grill Was Terminated Because Of Her “Negative Attitude,” “Rude Comments,” and “Confrontational Behavior.” Rios stated that the reasoning behind terminating Grill’s assignment was based on her allegedly making rude comments, being “somewhat” confrontational at work, and her negative attitude. (PSF 54.) M. Defendants Completely Fail to Provide Evidence of Grill’s Alleged Rude and Abrupt Behavior. Brennan informed Rios that Grill was abrupt and rude, and that she no longer wanted Grill on the team anymore. (PSF 55.) Further, Rios informed Orfield and Napolitano that UCI was having some 6 issues with Grill’s “abruptness” and “rudeness” on the floor. (PSF 56.) However, Grill does not recall making any rude comments to anyone during the time she worked at UCI, nor does she recall ever being confrontational with anyone. (PSF 57.) Further, Grill was not counseled by anyone at UCI for making rude comments in the workplace. (PSF 58.) Additionally, Grill was not aware of any employees complaining about her making rude comments in the workplace. (PSF 59.) n -6- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i. Defendants Cannot Point to a Single “Rude Comment” Allegedly Made by Grill. Brennan stated that Grill was rude, however, she did not inform Rios about the rude comments Grill allegedly made. (PSF 60.) Further, Brennan did not provide Rios with any examples as to how Grill was rude. (PSF 61.) Additionally, Rios did not ask Brennan about what rude comments were made. (PSF 62.) At the time she was notified of Grill’s alleged rude comments, Rios did not care to ask Brennan what these comments consisted of. (PSF 63.) Napolitano was not told what specific rude comments were allegedly made by Grill. (PSF 64.) Further, Napolitano did not ask Rios about what rude comments Grill allegedly made, nor did he care to ask about the specific rude comments made by Grill. (PSF 65.) ii. Defendants Cannot Provide Any Examples of When Grill was Allegedly Being “Abrupt”. Brennan and Garo informed Rios that Grill was abrupt. (PSF 66.) Garo did not describe how Grill was being abrupt. (PSF 67.) N. On the Contrary, Defendants Believed Grill to Be a Respectful Employee. Based on Rios’ interactions with Grill, Rios believed that Grill was a respectful employee. (PSF 68.) Additionally, Napolitano and Burroughs believed that Grill was a respectful individual. (PSF 69.) 0. Rios, Roman, and Burroughs All Testified that Grill Was Pleasant Based on Their Interactions with Her. According to Rios, Grill was pleasant to work with. (PSF 70.) Rios’ first impression of Grill was that she was nice. (PSF 71.) Roman stated that she did not have a problem with Grill’s attitude, and that she was very pleasant. (PSF 72.) While on Roman’s team, Grill appeared to be getting along with her peers. (PSF 73.) Further, Roman had not heard anything negative about Grill’s attitude. (PSF 74.) Roman stated it would surprise her to learn that Ms. Grill was allegedly terminated for her negative attitude. (PSF 75.) Additionally, Burroughs stated that Grill was pleasant to interact with as well, and that she was very, very nice over the phone. (PSF 76.) 1" n 7- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P. Grill Was Never Disciplined or Given Any Warning as to Her Alleged Negative Attitude; There is No Evidence to Support These Allegations. In Rios’ email to Napolitano, she stated that she would like to end Grill’s assignment due to her negative attitude. (PSF 77.) According to Rios, Brennan told her to terminate Grill’s assignment because she did not need Grill’s attitude or want her attitude on the team. (PSF 78.) However, Grill does not recall anyone from UCI ever making comments about her having a poor attitude at work, being insubordinate at work, not performing her job duties appropriately, resisting direction in anyway, or refusing assignments. (PSF 79.) Additionally, UCI did not contact Burroughs to make any complaints about Grill, nor did anyone tell him that Grill had a negative attitude. (PSF 80.) Q. Even Rios is Not Aware of Any Employee Complaints Made Against Grill. Further, Rios is not aware of any complaints brought by an employee in regard to Grill at any point. (PSF 81.) Rios stated that she does not believe that Grill’s alleged negative attitude warranted immediate termination. (PSF 82.) R. Defendants’ Did Not Conduct an Investigation as To Grill’s Alleged Behavior, Which Allegedly Resulted in Her Termination. MEDsearch did not conduct an investigation as to the reasons why Grill’s assignment was terminated. (PSF 83.) Neither MEDsearch nor Burroughs contacted Rios to ask her about what she meant when she said, “I would like to end Suzanne’s assignment effective today, due to her negative attitude.” (PSF 84.) After Rios informed Napolitano that UCI wanted to end Grill’s assignment, Napolitano did not ask Rios to give him specific examples of Grill’s negative attitude. (PSF 85.) Further, Napolitano did not ask anyone about how Grill was allegedly being confrontational when an issue was brought to her attention. (PSF 86.) S. MEDsearch Did Not Explore Any Alternatives Before Terminating Grill. MEDsearch did not explore any alternatives prior to ending Grill’s assignment. (PSF 87.) Additionally, there was no meeting held prior to ending Grill’s assignment. (PSF 88.) 1 1 -8- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 T. Burroughs Testifies That the Only Bases for Ending an Employee’s Assignment Would Be for Lack of Performance or Fraud. Burroughs has never terminated anyone for no reason at all. (PSF 89.) Further, he has never terminated anyone without a good cause. (PSF 90.) The only bases for which an employee’s assignment would end would be if the employee committed fraud, or for lack of performance. (PSF 91.) Additionally, Burroughs could not think of any reasons, other than an employee committing fraud, which would serve as good grounds for an employee not being considered for another assignment. (PSF 92.) Rios and Napolitano both admit that Grill was not terminated on the basis of her performance. (PSF 93.) Further, Roman and Rios both testified that they are not aware of Grill committing fraud during her employment with defendants. (PSF 94.) U. Moments After She Arrived Home from the Hospital, Grill Received News of Her Termination. Grill was really upset after Burroughs told her that her assignment had ended because she had just gotten out of the hospital. (PSF 95.) Burroughs stated that UCI did not have any more work for her to do, and that this was why her assignment was ending. (PSF 96.) Burroughs did not tell her that she was accused of having a negative attitude, making rude comments, or being confrontational at work. (PSF 97.) i. Grill Followed the Correct Protocol Before Taking Time Off. Further, Grill followed all of the right protocol in regards to requesting time off. (PSF 98.) Grill made sure that with the doctor’s note she provided, everything was going to be okay before she left because she needed a job. (PSF 99.) Additionally, Grill stated that they were all sympathetic when she left work, and that they guaranteed that everything would be okay. (PSF 100.) ii. Burroughs Did Not Provide Grill with Options, Even Though He Knew She Had Just Had A Miscarriage. Grill was upset with Burroughs after the way he terminated her, thus, she did not want to call him back nor speak to him in regard to finding a reassignment. (PSF 101.) Further, Grill states that if another position was available, Burroughs should have informed her of this. (PSF 102.) Burroughs did not inform Grill that there were other positions available. (PSF 103.) Further, Burroughs did not present Grill with alternative options, nor did he indicate that MEDsearch 9- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 would find her a reassignment upon her return. (PSF 104.) V. MEDsearch Fails to Adhere to Its Own Policy Against Harassment In its employee handbook, Defendants outline a Policy Against Harassment which states, “MedSearch Financial strictly prohibits harassment of employee’s in the workplace based on race, color, national origin, ancestry, sex, pregnancy and childbirth, sexual orientation, marital status, age (40 or older), physical or mental disability, medical condition, or veteran status.” (PSF 105.) The policy also states that “MedSearch Financial will not tolerate any unlawful harassment or discrimination in employment.” (PSF 106.) W. Defendants’ Conduct Causes Grill Severe Emotional Distress. As aresult of her termination, Grill was severely impacted from a mental and emotional standpoint. (PSF 107.) Grill had to cope with the loss of her baby, and her job, all of which happened within one day. (PSF 108.) Grill struggled to maintain her finances and deal with the onset of depression and anxiety that she developed as a result of being terminated. (PSF 109.) Grill experiences various symptoms of her emotional distress on a daily basis. (PSF 110.) She is depressed and anxious as a result of her termination. (PSF 111.) Further, she has difficulty sleeping, and her sex life has been impacted because of her depression. (PSF 112.) After her termination, Grill suffered from crying spells and cried on a daily basis for months. (PSF 113.) Grill felt worthless because she was the only one providing for her household at the time. (PSF 114.) Additionally, Grill lost about fifteen pounds since her separation from MEDsearch. (PSF 115.) After losing her job, Grill was having difficulty paying the mortgage on her home. (PSF 116.) As a result, Grill had to sell her home for a price below its actual value. (PSF 117.) 3. ARGUMENT A. The Controlling Summary Judgment and Adjudication Standard. A “party moving for summary judgment [or adjudication] bear the burden of persuasion that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. “To succeed, a defendant moving for summary judgment must “conclusively negate a necessary element to tile plaintiff’s case or establish a complete defense and thereby demonstrate that under no hypothesis is there a material factual issue which requires the process of a trial.” -10- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Flowmaster, Inc. v. Superior Court (1993) 16 Cal.App.4th 1019,1026. The motion will be denied if defendants cannot show that either a complete defense exists or an essential element of plaintiff’s claim cannot be established. C.C.P. §437(c)(c),(0),(p)(2); Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317, 334; Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 72; Colarossi v. Coty US Inc. (2002) 97 Cal. App.4th 1142, 1152.1 i. ~~ Grill’s Evidence Must Be Construed Liberally and in Her Favor. Trial courts must view all evidence and draw reasonable inferences in the light most favorable to the opposing party. Aguilar, 25 Cal.4th at 843. “[D]oubts as to the propriety of summary judgment should be resolved against granting the motion.” Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 500. The court may not weigh evidence or evaluate witness credibility. Binder v. Aetna Life Ins. Co. (1999) 75 Cal. App.4th 832, 840. “Only when the inferences are indisputable may the court decide the issues as a matter of law.” Id. at 839; Nazir v. United Airlines, Inc. (2009) 178 Cal. App.4th 243, 286. (summary judgment rare in employment cases). B. Summary Adjudication is Available Only for Specific Noticed Issues. "A motion for summary adjudication tenders only those issues or causes of action specified in the notice of motion, and may only be granted as to the matters thus specified." Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-744; see also C.C.P. § 437c. The court may not summarily adjudicate claims as to which no triable issue was raised unless it is requested in the notice of motion. Homestead Sav. v. Sup. Ct. (Dividend Develop. Corp.) (1986) 179 Cal.App.3d 494,498. i. Grill’s Prayer for Punitive Damages Survives as a Matter of Law. Adjudication No. 12: Defendants contend that Plaintiff’s prayer and request for punitive damages cannot be sustained because plaintiff cannot show “clear and convincing evidence of punitive misconduct” by Defendants. (See Defendant MEDsearch and Burroughs’ Notice of Motion for Summary Judgment, or in the alternative, Summary Adjudication.) However, the correct standard for punitive damages requires plaintiff to show defendants’ conduct constitutes oppression, fraud, and/or malice under California Civil Code section 3294. Defendants fail to notice this issue properly, therefore, plaintiff can defeat summary adjudication of this claim on this basis alone. 1" ! Plaintiff Grill concedes to Defendant’s noticed issue No. 5, Plaintiff's First Cause of Action for Violation of California Family Rights Act (CFRA) Leave Request Fails as a Matter of Law. 11- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Substantial Evidence Negates Adjudication of Grill’s Harassment Claims. The California Legislature, in response to awareness of the growing problem of harassment by employers, recently declared that harassment claims are “rarely appropriate for disposition on summary judgment,” and a “single incident of harassing conduct is sufficient to create a triable issue.” (Ca. Gov. Code § 12923 (b)-(e); Dee v. Vintage Petroleum (2003) 106 Cal. App.4th 30, 36.) “When the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, the law is violated.” (Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal. App.4th 397, 409.) Whether conduct is harassing is “usually a question of fact” for the jury. (Harris v. Forklift Sys. (1993) 510 U.S. 17, 23 (emphasis added.) “[TThere is no basis for excluding evidence of biased personnel management actions so long as that evidence is relevant to prove the communication of a hostile message.” (Roby, supra, 47 Cal.4th at 708.) Whether conduct is harassing is “usually a question of fact” for the jury. Harris v. Forklift Sys.(1993) 510 U.S. 17, 23. “When the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, the law is violated.” Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal. App.4th 397, 409. Here, Defendants were aware that Grill was pregnant, and that she was having a miscarriage. (PSF 36, 38-39, 42-43.) Grill was on approved, sick pay during the time Defendants’ chose to terminate her. (PSF 44-45, 47, 51.) Further, Burroughs chose to inform Grill that “UCI no longer had work for [Grill]” exactly one day after he found out that Grill was pregnant, and was having a miscarriage. (PSF 42, 52, 96.) These completely altered the terms of Grill’s working environment, and even if she had been allowed to return the environment would have been extremely hostile. Even managerial-type of actions are recognized as harassment. See Roby v. McKesson (2009) 47 Cal.4th. 686. Only a jury should be tasked with determining whether Grill was indeed discriminated against, harassed, and retaliated against on the bases of her sex and disability, i.e. pregnancy and miscarriage. D. Substantial Evidence Establishes Grill’s Discrimination Claims on the Bases of Disability and Sex, Including Pregnancy. Defendants cannot meet their initial burden of disposing of an element of Plaintiff’s claims. A prima facie showing of discrimination under FEHA is “not onerous” and requires a showing that (1) Grill was a member of protected classes, as it is proven here that she is a woman, who was disabled, pregnant and suffered complications, which resulted in a miscarriage; (2) she was qualified for this job, as is shown by her qualifications and defendants’ own comments; (3) she suffered an adverse employment action, -12- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 through her termination; and (4) there were circumstances suggesting that defendants acted with a discriminatory motive, shown below in numerous examples. Thus, plaintiff meets her prima facie case. E. There is Ample Evidence to Establish Grill’s Retaliation Claims on the Basis of Disability and Sex, Including Pregnancy. Meanwhile, a prima facie showing of retaliation under FEHA requires a showing that (1) Grill engaged in a “protected activity,” here, she informed defendants’ that she was having complications with her pregnancy, and that she needed time off in order to have an emergency surgery conducted for her miscarriage; (2) the employer subjected Grill to an adverse employment action (as was discussed above); and (3) a causal link existed between the protected activity and the employer’s action. Here, Grill was terminated one day after she informed defendants’ she was pregnant, was having a miscarriage, and needed to take time off. Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Government Code § 12940(h). “Actions for retaliation are ‘inherently fact-driven’; it is the jury, not the court, that is charged with determining the facts.” McCoy v. Pacific Maritime Ass'n (2013) 216 Cal. App.4th 283,299 (emphasis added); see also Yanowitz at 1052. Thus, plaintiff meets her prima facie case. Once plaintiff establishes her prima facie case, defendants have the burden of articulating some “legitimate, nondiscriminatory” reason for the firing. Assuming, arguendo, that defendant can show some legitimate reason for the termination (though it cannot), the burden shifts back to plaintiff to raise a genuine factual question as to whether the proffered reason is pretextual. Guz, 24 Cal. 4th at 356. Plaintiff easily establishes her prima facie case. i. Substantial Evidence of Pretext Negates Summary Judgment in its Entirety. “Evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias,” Guz, 24 Cal.4th at 356. “[O]nce the employers justification [for the termination] has been eliminated, discrimination may well be the most likely alternative explanation.” Reeves v. Sanderson Plumbing Prods. (2000) 530 U.S. 133, 147. A party’s dishonesty about a material fact may be viewed as “affirmative evidence of guilt.” Ibid (emphasis added); see also Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1099 (reversing summary adjudication where decision-maker lied about termination reasons). As explained further below, substantial evidence also establishes a prima facie case of discrimination, retaliation, and harassment. Thus, even if defendant could prove a legitimate business reason for its action (it cannot), the pretextual evidence here negates any availability of summary judgment or adjudication. nn nn -13- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. False and Shifting Discharge Reasons Evince Discrimination and Retaliation. Evidence that Defendants stated reason for firing Grill are “unworthy of credence” is probative of pretext. Reeves, 530 U.S. at 147; Guz, 24 Cal.4th at 361. “Proof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons.” Guz, supra, 24 Cal.4th at 361. The jury’s disbelief of defendant’s reasons (particularly when disbelief is accompanied by suspicion of mendacity) may, along with a prima facie case, suffice to show retaliation and/or discrimination. Moore v. Regents of Univ. of Cal. (2016) 248 Cal. App.4th 216, 235-236. Here, defendants’ proffered reason for Grill’s termination is allegedly due to her making rude comments, being confrontational when an issue was brought to her attention, and her purported negative attitude. (PSF 49-50.) However, defendants’ fail to offer proof as to what specific “rude comments” were made. Additionally, defendants could not provide amy examples of how or when Grill was confrontational. Further, defendants’ own testimony stated that Grill was pleasant to work with, and that she was a nice individual. (PSF 70-72,76.) These contradictions, along with the lack of evidence to justify their reasoning behind Grill’s termination, demonstrate such weakness and implausibility in defendant’s business reasons that a “rational factfinder could rationally find them unworthy of credence.” Moore, 248 Cal.App.4th at 235-236; Payne v. Northwest Corp. (9th Cir. 1997) 113 F.3d 1079. Additionally, Defendants owner termination reasons are false and inconsistent, showing strong evidence of pretext. Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317, 356. Internal communications and witness testimony provide that Grill’s termination because she was “rude” and had a “negative attitude,” yet Grill was informed that she was being terminated because “UCI no longer had work for [her].” (PSF 49, 54, 55, 56, 96, 97.) b. Suspect Timing Establishes a Causal Connection. The causal link between Grill’s protected activity and the sudden adverse actions may be established by “the proximity in time between the protected action and allegedly retaliatory employment decision.” Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590, 615. In Grill v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590, 615, the court found that one may infer retaliation by the “proximity of time between protected activity and the allegedly retaliatory employment decision. When -14- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 adverse actions are taken within a reasonable time after an employee engages in protected activity, causation may be inferred. Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1059-1060, 1062 (summary judgment improper where employer fabricated allegations about plaintiff seven months after protected activity). More egregious facts exist here. Just one day after Grill informed defendants’ that she was pregnant and was having a miscarriage, Burroughs informed Grill that “UCI did not have any more work for her.” (PSF 42, 52, 96.) Grill was on approved, paid sick leave during this time. (PSF 44-45, 47, 51.) The causal connection and timing between the protected activity and adverse employment action (the termination of Grill’s employment), evinces pretext. ¢. Grill’s Excellent Performance Evinces Pretext. Grill’s excellent performance before her sudden termination evinces pretext, particularly, defendants testified that Grill was not terminated for her lack of performance, and Grill was never disciplined for her performance. (PSF 12-16, 93.) Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153 (summary judgment improper where plaintiff performed well before termination). d. Defendants’ Failure to Investigate Evinces Pretext. When an employer fails to follow its own policies and procedures, this very fact may constitute circumstantial evidence of pretext. Village of Arlington Heights v. Mets Hous. Dev. Corp. (1997) 429 U.S. 252, 267. An employer’s failure to investigate the subject matter of an employee’s underlying complaint is circumstantial evidence of pretext. DeLesstine v. Ft. Wayne State Hosp & Training Ctr., (7th Cir. 1982) 682 F.2d 130, 136. Retaliation can be shown through employer’s “utter disregard of information at their disposal relevant to plaintiff’s conduct.” Id. In its employee handbook, Defendants outline a Policy Against Harassment which states, “MedSearch Financial strictly prohibits harassment of employee’s in the workplace based on race, color, national origin, ancestry, sex, pregnancy and childbirth, sexual orientation, marital status, age (40 or older), physical or mental disability, medical condition, or veteran status.” (PSF 105.) The policy also states that “MedSearch Financial will not tolerate any unlawful harassment or discrimination in employment.” (PSF 106.) Defendants failed to follow its own discrimination and harassment policy by firing Grill the day -15- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 after she informed Defendants she was pregnant, and that she was having a miscarriage. (PSF 42, 52, 96.) Defendants’ actions directly contradict their anti-discrimination and harassment policy. F. Grill’s Claim for Failure to Prevent Discrimination, Harassment, or Retaliation Survives. Plaintiff's failure to prevent claim is contingent upon her underlying success on claims of discrimination, harassment, or retaliation. Dickson v. Burke Williams, Inc. (2015) 235 Cal. App.4th 1307, 1315. As mentioned previously, Grill’s claims for discrimination, harassment, and retaliation survive as a matter of law. Thus, Grill’s claim for failure to prevent discrimination, harassment, or retaliation survives as well. G. The Claims for Failure to Accommodate and Failure to Engage in the Interactive Process Survives. Government Code section 12940(m) makes it an unlawful employment practice “[f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” There is no requirement that plaintiff prove an adverse employment action caused by the disability. Jensen v. Wells Fargo Bank, supra, 85 Cal. App.4th at 260. FEHA requires employers to be flexible and to work with disabled employees to accommodate their needs. Prilliman v. United Airlines, Inc., 53 Cal.App.4th 935, 953 (1997). “A single failure to reasonably accommodate an employee may give rise to liability, despite other efforts at accommodation.” Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969; A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 464-465. Although an employee must request an accommodation before the parties engage in the process, he does not have to use any particular word, nor need the employer know the name or diagnosis of the employee’s disability. Gelfo v. Lockheed Martin Corp., 140 Cal. App.4th 34, 34, fn. 22 (2006); Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). The employer need know only that the employee has a medical condition or disability that requires accommodation. If the process fails, responsibility for failure is with the party who failed to participate in good faith. Id. The employer's duty to engage in the interactive process is continuous. Scotch v. Art Institute of California (2009) 173 Cal. App.4th 986, 1013. Here, defendants allege that they accommodated Grill by approving her paid, sick time off. -16- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 However, while Grill was on approved sick leave, exactly one day after she informed defendants that she was pregnant, and was having a miscarriage, defendants chose to inform her that her “assignment had ended.” (PSF 42, 44-45, 47, 51-52, 96.) Further, Burroughs did not inform Grill that there were other positions available. (PSF 103.) In addition, Burroughs did not present Grill with alternative options, nor did he inform her that MEDsearch would find her a reassignment upon her return. (PSF 104.) As a result, Grill did not contact defendants on August 30, 2017 because she had been terminated, harassed, retaliated and discriminated against. There is no interactive process or accommodation when despite approving time off for a disability, an employee is informed they are being terminated. H. Defendants Never Assert Any Undue Hardship. Employers must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose an "undue hardship." Prillman v United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951. Defendants do not once in their motion for summary judgment or otherwise assert any undue hardship defense. Defendants could have reassigned Grill to a different position or department, told her about open positions, or given Grill her job back after her sick leave time expired. Their failure to do so evinces pretext and demonstrates a per se violation of their duties to provide reasonable accommodations to Grill and engage in the interactive process with her. I. Grill’s Breach of Contract Claims Survive. Notwithstanding a written at-will employment agreement, “the parties may reach any contrary understanding, otherwise lawful, concerning either the term of employment or the grounds or manner of termination.” Guz, supra, 24 Cal.4th at 336. Disclaimer language in a policy or handbook is not determinative of the at-will relationship. Id. at 340. “The contractual understanding need not be express, but may be implied in fact, arising from the parties’ conduct evidencing their actual mutual intent to create such enforceable limitations.” Id. at 337. Factors, based on the totality of circumstances, may prove an implied agreement apart from express terms: (1) personnel policies and practices of the employer; (2) the employee’s longevity of service; (3) actions or communications by the employer reflecting assurances of continued employment; and (4) the practices of the industry. Id. at 337-338; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680-681. Where evidence of the parties’ conduct is disputed, as the case here, “a question of fact is presented.” Id. at 337. -17- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, Grill reasonably believed that her employment with defendants was long-term. The position Grill applied for was described as “Long-term Contract/ Temporary.” (PSF 24.) Further, Grill’s offer letter stated that her position was a “full-time contracted assignment.” (PSF 5.) Additionally, Roman told her that individuals that began working in the Department of Dermatology through an agency were still working there, some of them for as long as two years. (PSF 28.) Defendant Burroughs has never terminated anyone for no reason at all. (PSF 89.) Additionally, Burroughs has never terminated anyone without a good cause. (PSF 90.) These practices contradict defendants’ position that employees for MEDsearch are “at will” and can be fired for any reason or no reason at all. Further, Burroughs could not think of any reasons, other than an employee committing fraud, which would serve as good grounds for discontinuing an employee’s assignment. (PSF 92.) As discussed above, Grill certainly did not engage in fraud nor was she terminated for fraudulent conduct. (PSF 94.) Rather, Grill received compliments on her work ethic. For example, Grill was told she was a “good worker” and that she was doing a “good job.” (PSF 7.) Thus, defendants’ positive affirmations of Grill’s performance reflected assurances of continued employment. J. The Evidence Supports Negligent Hiring, Supervision, and Retention. “An employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. ..if the employer knew or should have known” that retaining the employee “created a particular risk or hazard.” Doe v. Capital Cities (1996) 50 Cal. App.4th 1038, 1054. “To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor's propensity to do the bad act.” ZV. v. Cty. of Riverside (2015) 238 Cal. App.4th 889, 902. Here, UCI informed Napolitano that Grill allegedly made rude comments, was confrontational, and had a negative attitude. (PSF 49.) Without conducting an investigation as to these allegations, Napolitano informed Burroughs and Orfield that he was going to end Grill’s assignment based on UCI’s directive. (PSF 50,83.) However, Burroughs was the individual that informed Grill that she was no longer needed at UCL (PSF 96.) 1" -18- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K. Grill’s Claim for Wrongful Termination in Violation of Public Policy Survives. A wrongful termination claim requires the alleged policy violation be “tethered to fundamental policies delineated in constitutional or statutory provisions.” Green v. Ralee Eng’g Co. (1998) 19 Cal.4th 66, 74. “[T]he FEHA clearly delineates a policy” against discrimination in employment. City of Moorpark v. Sup Ct. (1998) 18 Cal.4th 1143, 1159. Here, discrimination in violation of FEHA is a basis for one of Grill’s claims. Thus, Grill’s claim for wrongful termination in violation of public policy survives. L. Defendants’ Outrageous Conduct, Which Caused Grill Severe Emotional Distress, Negates Adjudication of the ITED claim. “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” Cole v. Fair Oaks Fire Prot. Dist. (1987) 43 Cal.3d 148, 155, fn. 7. An employer may be liable for IIED even if the employee did not suffer a physical injury or disability. Id. at 155-156. “Where reasonable men may differ, it is for the jury...to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” Molko v. Holy Spirit Ass'n (1988) 46 Cal.3d 1092, 1123. Here, Grill’s IIED claim is based on discrimination, which has been recognized as “outrageous.” Renteriav. County of Orange (1978) 82 Cal.App.3d 833, 834. Further, Grill has suffered from depression, anxiety, and distress, as a result of Defendant Burroughs terminating her just one day after she notified defendants’ that she was having a miscarriage, and that she would be needing time off in order to have an emergency surgery completed. (PSF 107-117.) Grill had to cope with the loss of her baby, and her job, all of which happened within one day. (PSF 108.) Grill’s claims for discrimination, harassment, retaliation, and wrongful termination all support her claim for IIED, as an “employer’s decision to discharge an employee [that] results from an animus that violates the fundamental policy” is “misconduct [that] cannot be considered a normal part of the employment relationship.” Cabesuela v. Browning-Ferris Ind. of Cal., Inc. (1998) 68 Cal.App.4th 101, 112. 1" 1" -19- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i. Defendants’ Reliance on the Workers’ Compensation Exclusivity Rule is Misguided. “The Legislature did not intend that an employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of discriminatory practices.” Accardi v. Sup. Ct., (1993) 17 Cal.App.4th 341, 352 (citations omitted). The exclusivity provision of the workers’ compensation law does not bar a plaintiff from alleging emotional distress because of discriminatory actions. Murray v. Oceanside Unified School Dist., (2000) 79 Cal.App.4th 1338, 1363; Fretland v. County of Humboldt, (1999) 69 Cal.App.4th 1478, 1492. Whether a supervisor’s actions are “outrageous and extreme” is an issue of fact for the jury. Additionally, the exclusivity rule does not bar a suit for emotional distress resulting from misconduct that “exceeds the risks inherent in the employment relationship.” Livitsanos v. Sup. Ct. (1992) 2 Cal. 4th 744, 754. Here, Grill’s claim for emotional distress is not barred by the workers’ compensation exclusivity rule because defendants’ have participated in discriminatory acts. Thus, defendants cannot hope to hide behind the workers’ compensation exclusivity rule as a defense. 4. CONCLUSION For the foregoing reasons, plaintiff, Susanne Lee Grill, respectfully requests that this honorable Court deny defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication in its entirety. Dated: March 19, 2019 SHEGERIAN & ASSOCIATES, INC. oe Doni Carney(®_Shegerian, Attorneys for Plaintiff, SUSANNE LEE GRILL -20- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GRILL v. MEDSEARCH, et al. OCSC Case No. 30-2018-00983040-CU-WT-CJC PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am an employee 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 225 Santa Monica Boulevard, Suite 700, Santa Monica, California 90401. On March 19,2019, I served the foregoing document, described as “PLAINTIFF SUSANNE LEE GRILL’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MEDSEARCH FINANCIAL, INC. AND BRIAN BURROUGHS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION,” on all interested parties in this action by placing a true copy thereof in a sealed envelope, addressed as follows: Jon C. Yonemitsu, Esq. Kara A. Ritter, Esq. GORDON REES SCULLY MANSUKHANI, LLP 633 West Fifth Street, 52nd Floor Los Angeles, California 90071 [] (BY MAIL) As follows: ] I placed such envelope, with postage thereon prepaid, in the United States mail at Santa Monica, California. ] I am “readily familiar” with the firm’s practice of collecting and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day, with postage thereon fully prepaid, at Santa Monica, California, in the ordinary course of business. I am aware that, on motion of the party served, service is presumed invalid if the postal cancellation or postage meter date is more than one day after the date of deposit for mailing in this affidavit. x (BY FED EX) I placed such envelope in a designated Federal Express pick-up box at Santa Monica, California. [] (BY ELECTRONIC MAIL) I sent such document via facsimile mail to the number(s) noted above. x (STATE) I declare, under penalty of perjury under the laws of the State of California, that the above is true and correct. Executed on March 19, 2019, at Santa Monica, California. Jose Castro
