Motion For Summary JudgmentMotionCal. Super. - 2nd Dist.October 5, 2017Electronically FILED by Superior Court of California, County of Los Angeles on 04/11/2019 01:28 PM Sherri R. Carter, Executive Officer/Clerk of Court, by V. Delgadillo,Deputy Clerk W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nohemi G. Ferguson (SBN 125293) Clifton A. Baker (SBN 175388) GUTIERREZ, PRECIADO & HOUSE, LLP 3020 East Colorado Boulevard Pasadena, California 91107 Telephone: (626) 449-2300 Fax: (626) 449-2300 Attorneys for Defendant MOLINA HEALTHCARE, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT Case No. BC678419 Assigned to Hon. Richard E. Rico Dept. 17 CHANIN PATRICK, an individual, Plaintiff, Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues [Filed Concurrently with Defendant's Separate Statement of Undisputed Material Facts; Declarations and Index of Exhibits; Federal Case Index| Date: June 20, 2019 Time: 8:30AM Reservation ID: 180820341755 Complaint Filed: 10/15/2017 FSC: TBD Trial Date: TBD MOLINA HEALTHCARE, INC,, a Delaware Corporation; and DOES 1 through 100, Inclusive, Defendants. N r ” N r ” N r er N r N N N N N e N N N e N e N e N e e TO PLAINTIFF AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 20, 2019, at 8:30 a.m. in Department 17 of the above-captioned Court located at 111 N. Hill Street, Los Angeles, California, Defendant MOLINA HEALTHCARE, INC, will move the Court for an order as follows: Granting summary judgment in its favor, on the grounds that Plaintiff’s complaint has no merit and that there is no triable issue of material fact. N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 1 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Alternatively, if for any reason summary judgment cannot be had, for an order adjudicating that the following issues in this action are established without substantial controversy as against Plaintiff, that no further proof thereof shall be required at the trial of this action, and that final judgment on this action shall, in addition to any matters determined at trial, be based upon the issues as so established: Issue No. 1: Issue No. 2: Issue No. 3: Issue No. 4: Issue No. 5: Issue No. 6: Issue No. 7: The first cause of action for disability discrimination must fail because: (i) plaintiff cannot establish a prima facie case; (ii) defendant Molina’s actions were taken for legitimate business reasons; and (iii) plaintiff cannot establish pretext. The second cause of action for retaliation lacks merit because: (i) plaintiff cannot establish a prima facie case; (ii) Molina’s actions were taken for legitimate business reasons; and (iii) plaintiff cannot establish pretext. The third cause of action for interference with CFRA leave lacks merit because: (i) plaintiff cannot establish a prima facie case; (ii) Molina’s actions were taken for legitimate business reasons; (iii) Molina approved intermittent CFRA leave and (iv) plaintiff cannot establish pretext. The fourth cause of action for failure to engage in the interactive process lacks merit because: (1) plaintiff did not make defendant aware of any protected disability and (ii) defendant reasonably accommodated plaintiff’s claimed disabilities, except when plaintiff failed to participate in the interactive process. The fifth cause of action for failure to accommodate lacks merit because: (i) plaintiff did not make defendant aware of any protected disability and (ii) defendant reasonably accommodated plaintiff’s claimed disabilities, except when plaintiff failed to participate in the interactive process. The sixth cause of action for failure to prevent discrimination must fail because there was no actionable discrimination. The seventh cause of action for wrongful discharge lacks merit because: (i) N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 2 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff cannot establish a prima facie case; (ii) Molina’s actions were taken for legitimate business reasons; and (iii) plaintiff cannot establish pretext. Issue No. 8: The eighth cause of action for intentional infliction of emotional distress must fail: (1) for the same reasons as the FEHA claims; (i1) because Patrick lacks evidence of outrageous conduct; and/or (iii) because it is preempted by Workers” Compensation. Issue No. 9: The ninth cause of action for Unfair Business Practices lacks merit because: (1) plaintiff cannot establish a prima facie case; (ii) Molina’s actions were taken for legitimate business reasons; (iii) plaintiff cannot establish pretext; (iv) plaintiff did not make defendant aware of any protected disability; and (v) defendant reasonably accommodated Plaintiff’s claimed disability. Issue No. 10: Plaintiff’s request for punitive damages is improper because plaintiff has failed to state any cause of action upon which punitive damages may be based. This motion will be based upon this Notice, the attached Memorandum of Points and Authorities, the Separate Statement of Undisputed Material Facts, and exhibits thereto, the Declarations of Maria Vargas, Kisha Sullivan, Jeffrey Crandell, Jake Espiritu, and Clifton A. Baker in support thereof, the complete records and files of this action, and on such further oral and documentary evidence as may be presented prior to or at the hearing of this motion. DATED: April 3, 2019 GUTIERREZ, PRECIADO & HOUSE, LLP By: /S/ Clifton A. Baker Clifton A. Baker Attorneys for Defendant MOLINA HEALTHCARE, INC. N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 3 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Pg. MEMORANDUM OF POINTS AND AUTHORITIES. ............................. 1 Tritredustion Bd SURTHIEIY: 5 wos mus 5566s 0s 56s 6 bos 66s 855 ef 666 88 GE § 6Es 83 50 § 86 5 85 1 Undisputed Material Facts. .......... 1 Initial provision of ergonomic equipment to Patrick... .......................... 1 Initial information regarding FMLA/CRFA leave.. ............................ 2 Transfer to California Children Services: Patrick does not cooperate with the Interactive process ........ ovine 2 Patrick performs poorly in her new position. . ................ coi... 2 Vargas decides to terminate Patrick’s employment... .......................... 6 Patrick requests and receives FMLA/CFRA leave. ............... cco... 6 Patrick’s employment is terminated... ............. i 7 After the decision to terminate Patrick’s employment, Molina is notified that Patrick has carpal tunnel syndrome. ................................ 7 Patrick never informed Molina that she had a disability prior to the decision to terminate her employment... ................................. 8 Plaintiff’s Causes of ACtION. ...... 8 ATGUMENIL. © oo 8 1. Summary judgment standards. .............. 8 2. The first cause of action for disability discrimination must fail. .............. 9 A. Patrick cannot establish a prima faciecase.. ..................... 9 B. Molina had nondiscriminatory reasons for its decisions.. .......... 12 C. Patrick lacks the required substantial evidence of pretext. ......... 13 3. The second cause of action for CFRA retaliation must fail because Patrick cannot raise a triable issue as to causation, Molina had legitimate business reasons for her termination and she lacks evidence Of pretext. . o.oo v itt 13 4. The third cause of action for interference with CFRA rights must fail because Patrick was never denied leave. ............................ 15 5. The fourth cause of action for failure to engage in the interactive process lacks merit because Patrick did not make Molina aware of any protected disability and Molina reasonably accommodated Patrick’s claimed disabilities, except when Patrick failed to participate in the INEETACTIVE PIOCESS. + + vv vt eet eee et eee eee eee ee eee eee 15 N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 1 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. The fifth cause of action for failure to provide a reasonable accommodation must fail because Patrick did not make Molina aware of any protected disability and Molina reasonabl accommodated Patrick’s claimed disabilities, except when Patrick failed to participate in the interactive process... ..................... 17 7. The sixth cause of action for failure to prevent discrimination must fail because there was no actionable discrimination. . ................ 17 8. The seventh cause of action for wrongful termination must fail for the same reasons as the FEHA and CFRA causes of action. ........... 17 9. The eighth cause of action for intentional infliction of emotional distress must fail: (a) for the same reasons as the FEHA and CFRA causes of action; and/or (b) for lack of outrageous conduct; and/or (c) based on Workers” Compensation preemption. ....................... 18 10. The ninth cause of action for unfair business practices must fail for the same reasons as the FEHA and CFRA claims................. 18 11. Patrick’s claim for punitive damages is without merit. .................... 19 CONCIUSION. «o.oo ee ee ee 19 N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd i Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases °E Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. ........................... 8 Arteaga v. Brinks, Inc. (2008) 163 Cal. App.4th 327. .......................... 11, 12 Avila v. Continental Airlines, Inc. (2008) 165 Cal. App. 4" 1237... .................. 10 Brundage v. Hahn (1997) 57 Cal. App. 4th 228... ... 10 Catalano v. Sup. Ct. (2000) 82 Cal. App.4th 91. . ...... 19 Cochran v. Cochran (1998) 65 Cal. App.4th488. ......... i. 18 Cole v. Fair Oaks Fire Prot. Dist. (1987)43 Cal.3d 148........................... 18 Compton v. City of Santee (1993) 12 Cal. App.4th 591. ............................ 8 Faust v. California Portland Cement Co. (2007) 150 Cal. App. 4th. 864. ............. 14 Futrell v. Payday California, Inc. (2010) 190 Cal. App.4th 1419... .................. 11 Guz v. Bechtel Nat'l. Inc. (2000) 24 Cal.4th 317. ............ iii... 9,13 Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215. ......................... 16 Hersant v. Dept. of Social Services (1997) 57 Cal. App.4th997. ............... 9,12,13 Janken v. GM Hughes Electronics (1996) 46 Cal. App.4th 55. ...................... 18 Jensen v. Wells Fargo Bank (2000) 85 Cal. App. 4th245........................ 9,16 Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App.4th 1718. .............. 13 Raine v. City of Burbank (2006) 135 Cal. App.4th 1215... ......................... 15 Rogers v. County of Los Angeles (2011) 198 Cal. App.4th 480. .................. 13, 14 Scotch v. Art Institute of California (2009) 173 Cal. App.4th 986. ................... 16 Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal. App.5th 570. ................ 9 Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 . .......................... 17 Trovato v. Beckman Coulter, Inc. (2011) 192 Cal. App. 4th319.................. 10, 13 Trujillo v. North County Transit Dist. (1998) 63 Cal. App.4th 280,289. .............. 17 // // // N:AMOLINAPatrick\MSJ_directory'MSJ.wpd iil Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Federal Cases Clark County School District v. Breeden (2001) 532 U.S. 268. .................. 11, 14 Ellis v. City of Reedley, 2007 U.S. Dist. LEXIS 25333... ....... it. 10 Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248. ................. 12 Statutes Code of Civil Procedure § 437C (DP). «+ ovo ove ieee eee ee 8 Code of Civil Procedure § 437c(f). . . o.oo ee 19 Goverment Code §12928 wissen iunssasnannssns as ans ums msams: aus 54 58 a6 9,16 Government Code §12940 .. . Le 9,17 Government Code §12945. 2... 14, 15 N:MOLINAPatrick\MS] _directory\MSJ.wpd iv Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 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 and Summary Chanin Patrick worked for Molina Healthcare, Inc., as a delegation oversight nurse and later as a case manager. On April 17, 2017, Molina terminated her employment due to poor job performance. Patrick’s disability causes of action lack merit because: * Molina was never aware that she had a disability; * Molina provided ergonomic equipment except when Patrick failed to cooperate with her assessment; and » Patrick’s supervisor, Maria Vargas, did not know that Patrick had a disability when Vargas made the decision to terminate Patrick’s employment. Similarly, Patrick’s family medical leave claims must fail because Molina granted Patrick’s leave request and Vargas had already made the decision to terminate Patrick by the time Patrick submitted her leave request. Her other causes of action are based on the same alleged conduct and thus fail for the same reasons. Undisputed Material Facts’ Initial provision of ergonomic equipment to Patrick: On August 6, 2014, Patrick began working for Molina Healthcare as an auditor in the Delegation Oversight department. Patrick requested and received an ergonomic assessment in August 2014. The receipt of an ergonomic assessment does not necessarily notify Molina that an employee has a disability. At Molina, upon request, ergonomic assessments and equipment are provided prophylactically to employees who are not disabled. [Undisputed Material Facts (“UMF”) 1-4] // ! This summary refers to the relevant portions of the accompanying Separate Statement. That statement cites to the evidentiary material on which this motion is based. N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 1 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 An ergonomic report regarding Patrick was issued on September 22, 2014, recommending an ergonomic keyboard, mouse, and chair for her. The recommended ergonomic equipment was purchased for her in September 2014. Neither the ergonomic report nor the receipt of ergonomic equipment placed Molina on notice that Patrick had a disability, if she did. Molina replaced the ergonomic keyboard within a month of Patrick notifying Molina that a replacement keyboard was needed. [UMF 5-8] Initial information regarding FMLA/CRFA leave: Patrick recalls informing her supervisor in Delegation Oversight, Hollian Cervantes, that her absences, tardies, and instances of leaving work early were to care for her stepdaughter. Cervantes mentioned FMLA leave to Patrick, so she could have the time off she needed and it would be covered. At the times that Patrick was advised to seek FMLA leave, she did not inform Molina that she had a disability or a need for a reasonable accommodation. [UMF 9-11] Transfer to California Children Services: Patrick does not cooperate with the interactive process: On September 19, 2016, Patrick transferred from Delegation Oversight to a job as a case manager for California Children Services team (“CCS”). While working for CCS, she worked remotely, 1.e., from home. She requested an ergonomic assessment of her home work station. Molina notified her that photographs of her home work station were necessary in order to purchase an ergonomic workstation for a remote employee. She never sent the required photographs of her home workstation. [UMF 12-16] Patrick performs poorly in her new position: Maria Vargas was Patrick’s supervisor at CCS. As a CCS Case Manager, Patrick was responsible for case management of Molina’s most fragile and vulnerable pediatric patients (aka, members). She was required to comply with all regulatory turn-around times and N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 2 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 documentation. In September 2016, she received three weeks of Utilization Management and Clinical Care Advance system training. In October 2016, Molina management had several conversations with her regarding not meeting performance expectations and regulatory standards. Patrick does not recall meeting with management in October 2016 about not meeting performance expectations and regulatory standards. On October 6, 2016, she was assigned a preceptor for additional one-on-one training with the goal of reaching a caseload of 20 cases by October 28, 2016. On October 28, 2016, she was assigned a new preceptor for additional support due to her not meeting minimum regulatory standards. [UMF 16-24] Flipcard rounds are interdisciplinary meetings held to round on inpatient members. The assigned case manager attends the meetings, provides social information to the medical director, and gather facts about members’ conditions, status, and any recommendations prior to member discharging. On November 9, 2016, following five weeks of flipcard rounds, Patrick was assigned a flip card member and informed Vargas that she did not know what to do with the member. Patrick does not recall stating on November 9, 2016 that she did not know how to do flipcard rounds. On November 21, 2016, Vargas re-reviewed the case manager task process with Patrick and committed to meeting with Patrick weekly to discuss her performance. Patrick does not recall Vargas re-reviewing the case manager task process with her on and committing to meeting with her weekly to discuss her performance. On November 23, 2016, Patrick’s preceptor reviewed her cases and discovered that she was not following regulatory requirements. Following the case review, Patrick was provided with templates and specific instructions on resolving the regulatory deficiencies. Despite the provision of templates and specific instructions, Patrick had not resolved the regulatory deficiencies upon review on November 28, 2016. [UMF 25-32] Patrick was admonished on December 5, 2016 regarding her mistakes on the Kronos timekeeping system, zero tolerance on unauthorized overtime, and her attendance on September 26, and 27, October 3, 12, and 13, November 9, and December 2, 2016. Patrick does not recall meeting with Vargas on December 5, 2016 regarding her attendance. She was given contact information for the appropriate Molina human resources employee to obtain N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 3 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FMLA leave at the December 5, 2016 meeting. Patrick does not recall being given contact information for the appropriate Molina human resources employee to obtain FMLA leave at the December 5, 2016 meeting. She does recall that she was provided with the contact information for FMLA leave. Molina management met with Patrick several times in December 2016 to address performance deficiencies. On December 19, 2016, Patrick informed Vargas that check-in meetings were not needed, as she understood the performance expectations and the case manager process. On December 29, 2016, the twenty cases that Patrick had been assigned on October 28, 2016 were out of compliance with regulatory requirements. As a result of being out of compliance, Patrick’s cases were reassigned to other case managers. As a result of her cases being out of compliance, Patrick was assigned a new preceptor. As a result of her cases being out of compliance, Patrick’s caseload was kept at 10 members for the following three weeks, in order to provide Patrick with one-on-one support. [UMF 33-43] In January 2017, a monthly case review reflected that Patrick had three cases open. Those three open cases were out of compliance with regulatory timelines. Patrick does not recall that the January 2017 monthly case review reflected that Patrick had three cases open and those cases were out of compliance with regulatory timelines. [UMF 44-46] Patrick was coached on February 6, 2017, regarding continuing issues with Kronos timekeeping activity. Patrick does not recall being counseled because she was making mistakes in Kronos. For a very brief time in early February 2017, Patrick’s performance improved. In February 2017, management continued to meet with Patrick to address her poor performance. As of mid-February 2017, Patrick had been a CCS Case Manager for five months. At that time, CCS Case Managers with five months of experience were expected to manage a caseload of 60 cases. As of mid-February 2017, Patrick had between 8-16 cases. On February 15, 2017, a monthly case review revealed that Patrick had not entered any tasks on four of her cases and one of her cases was 45 days old and had not been opened. All cases must be opened or closed within 30 days to meet regulatory compliance. Patrick does not recall discussing her performance with Vargas on February 15, 2017. [UMF 47-56] N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 4 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In March 2017, Patrick was sent to a new training called Molina Model of Care Case Manager training which covered how to meet regulatory compliance and provided specific templates and examples of documentation. Patrick received an audit, using a Molina audit tool that covers the NCQA guidelines. Patrick’s chart audit reflected a score of 37 percent, which is an extremely poor score. A good score is 93 percent or better. [UMF 57-60] On March 6, 2017, Patrick incorrectly documented a treatment plan for a one year old child, which included a specialized autism therapy called Applied Behavioral Analysis (“ABA”), with no supporting documents indicating that the plan was appropriate. Autism is usually not diagnosed until age three and ABA is usually not used before then. The one year old child had been diagnosed with Aperts syndrome, not autism. Patrick did not verify the child’s diagnosis in the Clinical Care Advance (“CCA”) computer system. She stated that she did not know why she included ABA in the child’s care plan and that she did not know what ABA was. Patrick sent the mistaken care plan to the member’s parents without first discussing the treatment and receiving necessary consent from the member’s parents. Consent 1s always required for patients who are under 18 years of age. Consent is a crucial part of compliance with NCQA regulations. Providing a care plan for the wrong diagnosis without consent places Molina out of compliance with regulations, reflects poorly on Molina, and could cause the parents to worry needlessly about their child’s health. Patrick does not recall incorrectly documenting a treatment plan for a one year old child, which included ABA therapy with no supporting documents indicating that the plan was appropriate, for a non- autistic child without parental consent on or about March 6, 2017. [UMF 61-71] On March 10, 2017, Patrick received in-service training and a question and answer session was conducted as a follow-up to training that she received on March 1, 2017. On March 15, 2017, Vargas addressed Patrick’s performance deficiencies, including: not completing Health Risk Assessments appropriately by not completing the actual assessment prior to summarizing it because she used the Initial Assessment Summary template instead of the program assessment; submitting documentation in CCA based upon her recollection instead of the information gathered. At the time of the March 15, 2017 meeting, Patrick had N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 5 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 regressed in her ability to open cases, despite continued coaching, education, sample templates, and help from preceptors and her supervisor. At that time, she had a caseload of 11 cases, only four of which were open. Patrick does not recall Vargas addressing Patrick’s performance deficiencies on March 15 2017. [UMF 72-76] Vargas decides to terminate Patrick’s employment: On or before March 24, 2017, Vargas decided to terminate Patrick’s employment. On or before March 24, 2017, Vargas contacted human resources to begin the process for terminating Patrick’s employment. On March 27, 2017, Patrick had four currently opened cases, and was required to make corrections to a couple of those following an audit by Vargas. Vargas believed that Patrick’s performance impacted Molina members as it affected the quality of timely care coordination. Patrick’s productivity was less than 10% of her peers. Patrick’s inability to perform negatively impacted the productivity of her preceptors. Her inability to comply with regulatory requirements put Molina at risk for failing federal and state regulatory mandates and increased Molina’s potential liability. Despite repeated counseling, coaching, and training, Patrick was unable to meet Molina’s healthcare standards or performance expectations. At the time that Vargas decided to terminate Patrick’s employment, Patrick did not have a known disability. At the time that Vargas decided to terminate Patrick’s employment, Vargas did not know that Patrick was disabled, if she was, or believe that she was disabled. [UMF 77-86] Patrick requests and receives FMLA/CFRA leave: Patrick first requested an application for FMLA/CFRA accommodations on or about February 7, 2017. Patrick was instructed to have the FMLA/CFRA medical certification returned to Molina by February 24, 2017. Patrick’s medical certification was not sent in to Molina to begin processing for FMLA/CFRA until March 28, 2017. Patrick’s FMLA/CFRA request was granted on March 29, 2017, the day after certification was sent to Molina. Her FMLA/CFRA request was granted again on April 6, 2017, the day after she sent in a revised N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 6 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Medical Certification. The report from Patrick’s doctor regarding FMLA leave states that Patrick was able to perform the essential functions of her job. [UMF 87-88, 102-106] Patrick’s employment is terminated: On April 10, 2017, Human Resources officer Guadalupe Garcia finished drafting the recommendation for plaintiff’s termination. Patrick’s termination was approved by Molina at 1:22PM on April 14, 2017. Patrick was terminated from her employment with Molina on April 17,2017. As of April 17,2017 her average caseload was approximately nine members, compared with the average of 60 for case managers with similar amounts of experience. Despite having so few cases, Patrick’s caseload was not meeting regulatory compliance. [UMF 89-93] After the decision to terminate Patrick’s employment, Molina is notified that Patrick has carpal tunnel syndrome: Patrick does not recall when she was first diagnosed with carpal tunnel syndrome. Patrick told Vargas in November 2016 “that [she] had a headache, the migraine, and [her] wrist was bothering [her].” Molina first received a doctor’s note diagnosing Patrick with carpal tunnel by facsimile at 6:28 AM on April 17, 2017 and by email at 8:49AM on April 17, 2017. Although Patrick emailed Vargas and attached the doctor’s note to the email shortly before Patrick’s termination, Vargas, per her practice, did not read the doctor’s note. Per her practice, in answer to Patrick’s question about how to get seen by a workers compensation doctor, Vargas informed Patrick to contact Molina’s FMLA contact person. Thus, at the time that Vargas had the teleconference with Patrick to inform Patrick that her employment was being terminated, Vargas did not know that Patrick had been diagnosed with carpal tunnel syndrome. At the time that Vargas had the teleconference with Patrick to inform Patrick that her employment was being terminated, Vargas did not know that Patrick was disabled, if she was, or believe that she was disabled. [UMF 94-101] 1 N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 7 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Patrick never informed Molina that she had a disability prior to the decision to terminate her employment: Patrick acknowledged receipt of the Molina Employee Handbook prior to starting work at Molina in 2014. The handbook provides that Molina employees with a disability and requiring an accommodation should notify a manager, supervisor, or HR Partner, so Molina can identify and provide accommodations. Patrick believes she had work-related carpal tunnel syndrome, and she had failed to bring that condition to her supervisors’ attention as of April 14,2017. While she was employed by Molina, Patrick did not provide Molina with a diagnosis from her doctor that she had a disability of migraine headaches. Patrick received the accommodation of intermittent leave for her migraine headaches. [UMF 107-111] Plaintiff’s Causes of Action Patrick purports to allege the following causes of action: (1) discrimination under the Fair Employment and Housing Act (“FEHA”) based on actual or perceived disability; (2) California Family Rights Act (“CFRA”) retaliation; (3) interference with CFRA rights; (4) failure to engage in the interactive process; (5) failure to accommodate; (6) failure to prevent discrimination; (7) wrongful discharge; (8) intentional infliction of emotional distress; and (9) unfair business practices. Argument 1. Summary judgment standards Summary judgment is appropriate where the plaintiff lacks the evidence necessary to prove her case. In order to obtain a summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; C.C.P. § 437¢c (p)(2).) “A party may not avoid summary judgment based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.” (Compton v. City of Santee (1993) 12 Cal. App.4th 591, 595-596.) N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 8 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The first cause of action for disability discrimination must fail. The FEHA prohibits employers from discriminating against employees on the basis of disability. (Govt. Code § 12940.) The familiar burden shifting approach applies to FEHA discrimination cases. Under that test, the plaintiff must first plead a prima facie case. (Guz v. Bechtel Nat'l. Inc. (2000) 24 Cal.4th 317, 354.) If the plaintiff does so, the burden shifts to the defendant to show that there was a legitimate non-discriminatory reason for the adverse action(s). If the defendant provides a legitimate reason, the presumption of discrimination disappears. (Id. at 355-356.) The plaintiff must then offer substantial evidence of pretext in order to avoid summary judgment. (Hersant v. Dept. of Social Services (1997) 57 Cal. App.4th 997, 1004-1005.) A. Patrick cannot establish a prima facie case. Patrick alleges that she was terminated because she had the disabilities of carpal tunnel syndrome and migraines. In order to establish a prima facie case of FEHA disability discrimination, Patrick must prove: (1) she suffered from a disability; (2) with or without reasonable accommodation, she could perform the essential functions of the employment position she held or desired; and (3) that she was subjected to an adverse employment action because of her disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal. App. 4th 245, 254.) To prove her prima facie case, Patrick must show both a causal link between Molina’s consideration of her disability and termination, and that discrimination was a substantial motivating factor, rather than just a motivating factor. (See Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 590.) Patrick cannot establish the first element (in part) or the third element. As to the first element, a disability for FEHA purposes is defined as a physical or mental condition that limits a major life activity. (Govt. Code §12926 (j)(1), (m)(1)(B).) Here, Patrick contends that she had the conditions of migraine headaches and carpal tunnel syndrome. Patrick did not have a diagnosis of carpal tunnel syndrome, such that it rose to the level of a disability, until April 14, 2017, weeks after the decision had been made to terminate her employment N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 9 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and just one business day before she was terminated.” Patrick does not know when she was first diagnosed with carpal tunnel and the only documentary evidence shows that she was diagnosed on April 14, 2107. Her failure to recall various events is dispositive as to many of the elements of her case. (See e.g., Trovato v. Beckman Coulter, Inc. (2011) 192 Cal. App. 4th 319, 325-326 (summary judgment granted where plaintiff testified at deposition that she could not recall any incidents of sexual harassment within the limitations period.)) As for the third element, to prove disparate treatment a plaintiff must prove the employer had knowledge of the plaintiff's disability when the adverse employment decision was made. (Avila v. Continental Airlines, Inc. (2008) 165 Cal. App. 4™ 1237, 1249; Brundage v. Hahn (1997) 57 Cal. App. 4th 228, 238.) Here, no one in authority at Molina, including decision maker Maria Vargas, knew that Patrick had either carpal tunnel syndrome or disabling migraine headaches prior to the decision to terminate Patrick’s employment. Although she requested ergonomic equipment, that did not place Molina’s management on notice that Patrick had a disability, as Molina provides ergonomic equipment as a preventative measure. And although Patrick claims to have told Vargas in November 2016 that she had a doctor’s appointment for a migraine headache and because her wrist was bothering her, an irritated or “bothered” wrist does not necessarily rise to the level of a condition that is sufficiently severe or of sufficient duration to limit a major life activity. Likewise, Patrick’s statement to Vargas regarding a migraine headache did not put Molina on notice that she had a diagnosis of migraine headaches that were sufficiently incapacitating and of sufficient frequency to limit a major life activity, as opposed to having occasional headaches that require a day off but could not logically be termed a disability. As the Court in Ellis v. City of Reedley, 2007 U.S. Dist. LEXIS 25333, at *29-30, explained, in interpreting the FEHA: ? Defendant assumes for purposes of summary judgment only that Patrick had disabling migraine headaches during her employment with Molina. N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 1 0 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The court accepts that migraine headaches may, in the abstract, cause limitation of a major life activity sufficient to constitute a physical disability. [Citation.] However, mere susceptibility to migraine headaches is not, without more, sufficient to establish a disability because susceptibility by itself produces no symptom and is therefore not limiting. The pertinent question for purposes of the present analysis is what level and duration of symptoms resulting from the disease or condition constitutes a limitation of a major life activity.’ (Emphasis added.) The Ellis Court further explained: [T] he term "disability" may incorporate a condition of only temporary duration, but that the condition must have at least a minimal duration within the time period relevant to the claim that is sufficient to constitute an actual limitation of a major life activity, as opposed to simply the need to take a day off. (Ibid. at *32.) Patrick did not provide Molina with notice of her disabilities before the termination decision. The decision to terminate Patrick’s employment was made no later than March 24, 2017. Patrick did not provide Molina with a diagnosis of carpal tunnel syndrome until April 17,2017, about three hours before she was terminated. Patrick’s notification to Molina that she had carpal tunnel syndrome did not require Molina to reverse course and retain her despite her incompetent performance. In the first place, Vargas did not read the doctor’s note and so did not know that Patrick had carpal tunnel syndrome. But even if Vargas had read the note, she was not required to change her termination decision: “Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.” (Clark County School District v. Breeden (2001) 532 U.S. 268, 272.) Likewise, in Arteaga v. Brinks, Inc. (2008) 163 Cal. App.4th 327, the plaintiff was terminated shortly after notifying his employer that he was disabled. The Court held that the employer did not have to retain the plaintiff merely because he had informed the employer of his disability: 3 California courts may consider relevant, unpublished federal district court opinions as frsunsive. (Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1442, n. 6. N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 1 1 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before Arteaga disclosed his symptoms, his performance had long been the subject of criticism, he had been suspended on one occasion, and he knew Brink's was already investigating a shortage on one of his runs. After the disclosure, no one made any negative remarks about his condition. (Ibid. at 354.) As the Court explained: Employers are sometimes forced to remove employees who are performing poorly, engaging in improper work conduct, or severely disrupting the workplace. ... Precedent does not prevent fan employer] from removing such an employee simply because the employee [recently] engaged in a protected work activity ... . (Ibid. Citations and quotation marks omitted.) Thus, as for carpal tunnel, Molina was not required to change its decision to terminate Patrick. As for migraines, Patrick never provided Molina with a diagnosis. Since Molina did not know that Patrick had a disability of migraine headaches, she was not terminated because of those headaches. Molina is entitled to summary adjudication of the first cause of action. B. Molina had nondiscriminatory reasons for its decisions. In order to satisfy its burden, the employer “need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.” (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 257.) Whether Molina’s reasons for its decisions were good, bad, or neutral is irrelevant, so long as they were not based on Patrick’s purported disabilities. (Hersant, 57 Cal.App.4th at 1004-1005.) Because Patrick cannot state a prima facie case, Molina is entitled to prevail without providing legitimate reasons for its decisions. Nonetheless, Molina can meet its burden. As explained in detail by Vargas and in the Disciplinary Action Notice [Exhibit 9], Patrick was terminated because, after six months of repeated training, coaching, and feedback, Patrick failed to meet expectations as a Case Manager. Despite having a very low caseload, her cases were frequently out of regulatory compliance. She also had a myriad of other job N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 1 2 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 performance problems. [UMF 17-34, 38-84] Patrick does not recall being counseled regarding many of these job performance problems and thus is unable to dispute that she had them. (Trovato, 192 Cal. App. 4th at 325-326.) C. Patrick lacks the required substantial evidence of pretext. Once the employer meets its burden, “the presumption of discrimination disappears.” (Guz, 24 Cal.4th at 356.) Plaintiff then must offer “substantial evidence” of pretext: The [employee] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. ~~ [Citations.] Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for the [asserted] non-discriminatory reasons.” (Hersant, 57 Cal.App.4th at 1004-1005.) Furthermore, a plaintiff cannot recover merely because she felt discriminated against. She must show some causal link between the adverse employment decision and her protected status. “[S]peculation cannot be regarded as substantial responsive evidence.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) Patrick has no evidence whatsoever, much less substantial, specific evidence that Vargas’s actions were pretextual. Because Vargas did not know that Patrick was disabled, her actions could not have been a pretext for discrimination. 3. The second cause of action for CFRA retaliation must fail because Patrick cannot raise a triable issue as to causation, Molina had legitimate business reasons for her termination and she lacks evidence of pretext. The CFRA is part of the FEHA. (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487.) The CFRA provides that “[i]t shall be an unlawful employment practice for an employer to . . . discharge . . . or discriminate against, any individual because of... [4] (1) An individual's exercise of the right to family care and medical leave provided N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 1 3 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 by” the CFRA. (Gov. Code, § 12945.2, subd. (1).) Burden shifting applies in CFRA retaliation cases. (Faust v. California Portland Cement Co. (2007) 150 Cal. App. 4th. 864, 885.) A plaintiff can establish a prima facie case of retaliation in violation of the CFRA by showing the following: (1) the defendant was a covered employer; (2) the plaintiff was eligible for CFRA leave; (3) the plaintiff exercised his or her right to take a qualifying leave; and (4) the plaintiff suffered an adverse employment action because he or she exercised the right to take CFRA leave. [Citation. (Rogers, 198 Cal.App.4th at 487-488. Emphasis in original.) Here, Patrick cannot establish that she was terminated because she asked for CFRA leave. Again, Vargas and Molina had decided as of no later than March 24, 2017 to terminate Patrick’s employment, before she asked for CFRA leave on March 28, 2017. [UMF 77, 104] Since Patrick had not yet requested CFRA leave when Vargas made the decision to terminate Patrick, Vargas could not have done so in retaliation. As with the discrimination claim, Patrick’s request for family leave did not require Molina to change its decision to terminate her. (Clark County School District, 532 U.S. at 272; Arteaga, 163 Cal. App.4th at 354.) As explained in section 2B above, Molina had legitimate business reasons for terminating Patrick’s employment, namely, her incompetent performance. Patrick lacks substantial evidence of pretext. In fact, on December 5, 2016, Vargas recommended that Patrick apply for FMLA leave so that Patrick could protect the absences that she was accruing and gave Patrick the contact information for Molina’s FMLA administrator. Patrick admits that Vargas suggested FMLA leave. [UMF 35-37] It strains credulity beyond the breaking point to suggest that Vargas recommended that Patrick exercise her family leave rights and then fired her for doing so. And Patrick has no evidence to support this notion anyway, particularly given that Vargas decided to terminate Patrick before Patrick applied. Molina is entitled to summary adjudication of the second cause of action. // // N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 1 4 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. The third cause of action for interference with CFRA rights must fail because Patrick was never denied leave. Patrick alleges that Molina interfered with her CFRA rights because it did not inform her of her CFRA rights and terminated her, rather than honoring her leave request. Government Code §12945.2 (a) provides that “. . . it shall be an unlawful employment practice for any employer, as defined in paragraph (2) of subdivision (c), to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave ....” [Emphasis added.] This is a fundamental element of plaintiff's cause of action for CFRA, which plaintiff cannot establish. Patrick was informed multiple times of her leave rights, including receipt of the Employee Handbook, by one of her supervisors, Holliann Cervantes, and by Vargas. Molina approved her intermittent CFRA leave. Again, before Patrick applied for leave, Vargas decided to terminate Patrick for legitimate reasons, based on inadequate job performance. As such, plaintiff's cause of action for violation of Govt. Code §12945.2 should be summarily adjudicated. 5. The fourth cause of action for failure to engage in the interactive process lacks merit because Patrick did not make Molina aware of any protected disability and Molina reasonably accommodated Patrick’s claimed disabilities, except when Patrick failed to participate in the interactive process. Govt. Code § 12940 (n) requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability. . . cee .” Generally, “‘[t]he employee bears the burden of giving the employer notice of the disability.” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) “It is an employee's responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 1 5 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which must be met to accommodate the employee.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 266.) As explained in section 2A above, Patrick did not inform Molina that she was disabled and did not seek an accommodation. Thus, Molina had no obligation to engage in the interactive process. By the time that Molina was informed that Patrick had carpal tunnel syndrome, the decision to terminate Patrick’s employment had been made. Neither decisionmaker Vargas nor Molina’s leave administration unit were ever informed that Patrick had disabling migraines. Alternatively, if providing ergonomic equipment is considered a reasonable accommodation for a disability, then Molina did engage in good faith in the interactive process. It is axiomatic that an employee who has been reasonably accommodated cannot maintain a claim for failure to engage in the interactive process. (Ibid. at 263; Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370.) As a Delegation Oversight Nurse, Patrick was assessed and received equipment. When Patrick was working remotely as a Case Manager, Molina participated in the interactive process, but Patrick did not do so in good faith, as she never sent necessary photos of her work station. (Jensen, 85 Cal. App.4th at 261 (“[FJor the process to work ‘[bJoth sides must communicate directly, exchange essential information and neither side can delay or obstruct the process”).) Responsibility for any breakdown in communication lies with the party who fails to participate in good faith. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1014.) cee As for her migraines, “‘[r]easonable accommodation’ may include: . . . (2) . . . part-time or modified work schedules . . ..” (Govt. Code §12926 (p).) Thus, a leave of absence can constitute a reasonable accommodation. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226-227.) Patrick received intermittent leave for her migraines. [UMF 111.] For all of these reasons, Molina is entitled to summary adjudication of the fourth cause of action. // // N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 1 6 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. The fifth cause of action for failure to provide a reasonable accommodation must fail because Patrick did not make Molina aware of any protected disability and Molina reasonably accommodated Patrick’s claimed disabilities, except when Patrick failed to participate in the interactive process. Govt. Code §12940(m) makes it unlawful for “an employer . . . to fail to make reasonable accommodation for the known . . . disability of an . . . employee.” (Emphasis added.) The fifth cause of action fails for the same reasons as the fourth. [See section 5 above.] Patrick did not make Molina aware that she had a disability until the day of her termination. Thus, Molina had no obligation to provide her with a reasonable accommodation. Alternatively, the ergonomic equipment at work and intermittent leave that she was provided were reasonable accommodations. She failed to provide necessary photos in order to receive ergonomic equipment for her home work station. 7. The sixth cause of action for failure to prevent discrimination must fail because there was no actionable discrimination. Where there has been no discrimination, the employer cannot be liable for failure to prevent it from occurring. (Trujillo v. North County Transit Dist. (1998) 63 Cal. App.4th 280, 289.) Because the other FEHA claims lack merit, the sixth does also. 8. The seventh cause of action for wrongful termination must fail for the same reasons as the FEHA and CFRA causes of action. Employers have an obligation to avoid terminating employees in contravention of public policy. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.) Patrick alleges that her termination violated the public policies embodied in the FEHA and CFRA. Thus, her wrongful termination cause of action must fail for the same reasons as her FEHA and CFRA causes of action. [See sections 2-7, above. | // 1 N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 17 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. The eighth cause of action for intentional infliction of emotional distress must fail: (a) for the same reasons as the FEHA and CFRA causes of action; and/or (b) for lack of outrageous conduct; and/or (c) based on Workers’ Compensation preemption. To the extent that the [IED claim is based upon the same conduct as the FEHA and CFRA claims, it must fail for the same reasons. And to the extent that discrimination is an exception to Workers” Compensation exclusivity, Patrick must still satisfy the traditional elements of the tort alleged. An essential element of an IIED claim is “outrageous conduct beyond the bounds of human decency.” (Janken v. GM Hughes Electronics (1996) 46 Cal. App.4th 55, 80.) “In evaluating whether the defendant's conduct was outrageous, it is not enough that [he] has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” (Cochran v. Cochran (1998) 65 Cal. App.4th 488, 496.) Even if Patrick could prove that Molina personnel engaged in unkind acts towards her, at the most, those acts would only qualify as mere indignities and bad manners, not as conduct beyond the bounds of human decency. “Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society.” (Janken, 46 Cal. App.4th at 80.) To the extent that the IIED claim is based on conduct not a part of the FEHA or CFRA claims, Workers’ Compensation preempts it. (Cole v. Fair Oaks Fire Prot. Dist. (1987) 43 Cal.3d 148, 160.) 10. The ninth cause of action for unfair business practices must fail for the same reasons as the FEHA and CFRA claims. Business and Professions Code section 17200 defines unfair competition as including “any unlawful, unfair or fraudulent business act or practice . . . .” Patrick bases her unfair practices claim on the same alleged conduct upon which she bases her disability and family N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 1 8 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 leave claims. [Ex. 1, Complaint, §51.] Thus, the ninth cause of action must fail for the same reasons as the first six causes of action. In other words, because Patrick cannot establish a triable issue regarding any allegedly unlawful business practice, Molina is entitled to summary adjudication on the ninth cause of action. 11. Patrick’s claim for punitive damages is without merit. The Court may grant summary adjudication as to a claim for punitive damages when the underlying cause of action cannot be established. (C.C.P. § 437¢(f)(1); Catalano v. Sup. Ct. (2000) 82 Cal.App.4th 91, 96.) Patrick has failed to establish a cause of action justifying punitive damages. Conclusion Chanin Patrick was terminated based on six months of consistently poor job performance. Despite the fact that the size of her caseload was about ten percent of her peers, she was consistently out of compliance with state regulations and Molina’s policies. Molina did not know that Patrick was disabled and Patrick did not request family leave before the termination decision. Patrick cannot create a triable issue because she cannot establish causation, that she was terminated because of her disabilities or because she requested family leave. Accordingly, Molina Healthcare is entitled to summary judgment. Dated: April 3, 2019 GUTIERREZ, PRECIADO & HOUSE, LLP By: /S/ Clifton A. Baker Clifton A. Baker Attorneys for Defendant, MOLINA HEALTHCARE, INC. N:\MOLINA\Patrick\MS]J_directory\MSJ.wpd 1 9 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues W N Oo 0 9 O N Dn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF LOS ANGELES I declare that I am employed in the County of Los Angeles, State of California; I am over the age of 18 years and not a party to the within action; my business address is 3020 East Colorado Boulevard, Pasadena, California 91107. On this date, I served the foregoing Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues on the interested Dafiics in this action by placing a true copy thereof, enclosed in a sealed envelope, addressed as follows: Ebby S. Bakhtiar, Esq. Tel: (213) 632-1550 Alex DiBona, Esq. Fax: (213) 632-3100 Livingston * Bakhtiar 3435 Wilshire Blvd. Suite 1669 Los Angeles CA 90010 BY MAIL - I placed such envelope for deposit in the U.S. Mail for service by the United States Postal Service, with postage thereon fully prepaid. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at Pasadena, California. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. X BY FEDERAL EXPRESS - I am familiar with the practice at my place of business for collection and processing of correspondence for overnight delivery maintained by Federal Express. Such correspondence will be deposited with a facility regularly maintained by Federal Express for receipt on the same day in the ordinary course of business. The envelope was sealed and placed for collection and delivery by Federal Express with delivery fees paid or provided for in accordance with ordinary business practices. BY PERSONAL SERVICE - I caused such envelope(s) to be delivered by messenger to the offices of the addressee(s) listed above. X (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed April 4, 2019, at Pasadena, California. /S/ Kaila Simoneit Kaila Stmoneit N:\MOLINA\Patrick\MSJ_directory\MSJ.wpd 20 Notice of Motion and Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues Reschedule a Reservation | Journal Technologies Court Portal =] Journal Technologies Court Portal Reschedule a Reservation Reservation Reservation ID: 180820341755 Reservation Type: Motion for Summary Judgment Case Number: BC678419 Case Title: CHANIN PATRICK VS MOLINA HEALTHCARE INC Filing Party: MOLINA HEALTHCARE INC (Defendant/Respondent) (Defendent) Location: Stanley Mosk Courthouse - Department 17 Date/Time: May 16th 2019, 8:30AM Status: RESERVED Number of Motions: 9 Motions to Reschedule Motion for Summary Judgment Reschedule To: Date: 06/20/2019 8:30 AM Location: Stanley Mosk Courthouse - Department 17 Fees Description Fee Qty Amount Reschedule Fee 20.00 1 20.00 Credit Card Percentage Fee (2.75%) 0.55 1 0.55 TOTAL $20.55 Payment Amount: Type: $20.55 MasterCard Account Number: Authorization: XXXX2551 01994G 4 Print Receipt + Reserve Another Hearing
