Memorandum_of_points_and_authorities_in_support_of_their_motion_for_summary_judgment_or_in_the_alternative_summary_adjudication

Motion

Cal. Super. - 2nd Dist.April 25, 2018

mi ll er Electronically ILED by Superior Court of California, County of Los Angeles on 02/22/2019 09:46 AM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk 1 || Michele Ballard Miller (SBN 104198) mbm@millerlawgroup.com 2 | John R. Carrigan, Jr. (SBN 217534) 3 Jjrc@millerlawgroup.com MILLER LAW GROUP 4 || A Professional Corporation 11845 West Olympic Boulevard, Suite 910W 9 || Los Angeles, CA 90064-1149 Tel: (310) 943-8500 6 |l Fax (310) 943-8501 f Attorneys for Defendant 8 || SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP 9 10 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 FOR THE COUNTY OF LOS ANGELES 13 14 ANGELA JERNIGAN, an individual, Case No.: BC703698 Tr [Assigned to the Hon. Yolanda Orozco, 15 Plaintiff, | Dept. 31] : 16 || v. DEFENDANTS’ MEMORANDUM OF POINTS 5 AND AUTHORITIES IN SUPPORT OF THEIR - 17 | SOUTHERN CALIFORNIA PERMANENTE | MOTION FOR SUMMARY JUDGMENT OR, = ly IN THE ALTERNATIVE, SUMMARY '% 18 || MEDICAL GROUP, INC., a California ADJUDICATION corporation; and DOES 1 through 50, 19 || inclusive, Reservation ID: 180927352519 20 Defendants. Date: May 9, 2019 21 Time: 8:30 AM. Dept: 31 22 23 Date of first filing: April 25, 2018 24 . Trial Date: 25 26 27 28 1 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 1 TABLE OF CONTENTS 2 3 l INTRODUCTION coisas eee eee eee esses e eens 7 4 Il STATEMENT OF FACTS cies eee eee eee eee eee 8 5 A. SCMPG’s Commitment To Providing A Workplace Free of Discrimination, Harassment, and Retaliation. ..................ccc.cccoeoee iii 8 6 B. Jernigan’s Role As Financial Counselor................cccocvieeeiivicciiice cc 9 7 C. February 2017: Jernigan Emails Complaint Regarding Whistling 8 In Emergency Department. ............c..oooveiiiiieiieeeee cece, 9 9 D. February-April 2017: Jernigan Rebuffs Repeated Efforts To 10 Investigate Her Allegations. ..........cccooviieiiiii i e 10 11 E. June 2017: Jernigan Swears At Her Supervisor In Response To ~ Inquiry Over Whether Jernigan Called A Coworker A “Dyke.” .................. 12 12 F. August 2017: Jernigan Is Disciplined For Insubordination After 13 Disregarding Management Directive To Interview Patients In The 14 Emergency ROOM. ........uuiiiiiiiiieeieeeeeeeee cece eee 13 15 G. September 8 Meeting and Subsequent Investigation Into Inappropriate Behavior In The Workplace. ..........ccccoeeviieiiiiiiiiiicciine, 14 15 H. January 16-18, 2018: Jernigan Receives Level 4 Corrective 17 Action For Behavior And Signs Last Chance Agreement......................... 16 18 I January 18-April 1, 2018: Jernigan Stops Attending Work And 19 Violates Last Chance Agreement.............ccooocvveeiiiciiiciiiecc eee eee 17 J. April 2018: Flores and Fiskio Decide to Terminate Jernigan's 20 ERRIOVITIEIE. 10.00 sus suns men 5058500 500 5en Sr assmslame momemsmm smammecs tis sastormmanss sam ems 18 2TH LEGAL ARGUMENT ...occcccoeoeoeeeeeeeoeeeeoee s s eee RE 20 42 A. Jernigan’s First Cause Of Action For Sexual Harassment/Hostile 23 Work Environment Fails As A Matter Of Law. .............cccoooevvvviinciiiie. 20 24 B Jernigan’s Second And Third Causes of Action For Discrimination Based Upon Sex/Gender And Disability Fail As A 25 IVETE OK LBINNE: cvre cmmnssmnsso,008558 8 HAERRD KAS Hk 58h ib meni mmm se 21 26 Cc Jernigan’s Fourth and Fifth Causes of Action for Failure to 27 Accommodate and Failure to Engage in the Interactive Process Fail As A Matter of Law. .......cooceviiiiiiiie eee, 24 28 2 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 oO © oO o N N Oo Oa A Ww DN ~~ ~~ Aa a aA aA aa oa D o r bh W N a I O N A L C O R P O R A T I O N ® m i l l e r N o N o N nN N N o N N - -_ -\ ~~ » On SD w nN -- oO © 0 ~l ND Qo D. Plaintiff's Sixth Cause of Action For Retaliation In Violation of the FEHA Fails As A Matter of Law. ........ccccovvviiiieiiiiiiie cece 26 E. Jernigan’s Seventh Cause Of Action For Failure To Prevent Discrimination and Harassment Fails As A Matter Of Law....................... 27 F. Jernigan’s Eighth Cause of Action for Intentional Infliction of Emotional Distress Fails As A Matter Of Law.................cooooeiiiiviiiineee, 28 1. Jernigan’s Claim is Preempted By The Exclusive Remedy Provisions of The California Workers’ Compensation Act. ............ 28 2. Even if The Intentional Infliction Claim is Not Preempted (And It Is), Jernigan Cannot Establish a Prima Facie CASE. eee rere eee a naan 28 G. Jernigan’s Ninth Cause Of Action For Wrongful Termination In Violation Of Public Policy Fails As A Matter Of Law.................ccccvvennn. 29 H. Plaintiff Cannot State A Claim For Punitive Damages....................uuo...... 30 CONCLUSION .....ooiiiitit cece eee eee eee eee e eee e eee eenaeae eae eeas 31 3 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 oO © 00 N N oO o h h Ww DN A 4A aA aa aa oa oa bh W N a -_ x» mi ll er A P R O F E S S I O N . N N DN DN DN DD ND N N N N = 0 N N O O Oo bh WOW N N ~~ O O Ow © TABLE OF AUTHORITIES Page(s) Cases American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App. 4th 1017 (2002) eevee eee eee eee eee eee eee eee esses 31 Avila v. Continental Airlines, Inc., 165 Cal. App. 4th 1237 (2008) ......ceeeeieeeeie eee eee eee eee esses eee een 26 Barrett v. Applied Radian Energy Corp., 240 F.3d 262 (4th Cir. 2007) ..eeieiiiiiiiiii eee eee eee eee e eset eens 27 Brennan v. Townsend & O'Leary Enterprises, Inc., 199 Cal. APP.4th 1336 (20711) eerie ee eects eee eee eee 21 Buscemi v. McDonnell Douglas Corp., 736 F.2d 1348 (Oth Cir. 1984) vis 29 Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800 (20071) .eeeeeiiiieiee ei eeeeeee eee eee eee e eases raeaes 28 Cole v. Fair Oaks Fire Protection Dist., 43 Cal. 3d 148 (1987) eee ee eee ee eee eee eee ees 28, 29 Cruz v. Homebase, 83 Cal. App. 4th 160 (2000) .....ccoiurerriiiiieeeiiieee cece e ree eee e eee ree essere 30 Fermino v. Fedco, Inc., 7 Cal. 4th 701 (1994) eee e ese e eee, 28 Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467 (1992) ....oeeiiiiiiieee eee 26 Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34 (2006) ......oooiieeeieeeeiee eee ee eee eee 25, 26, 30 Guthrey v. State of Cal., 63 Cal. App. 4th 1108 TBIOBY rs csr mses meses me sais wr so gr BE RTS .21 Guz v. Bechtel National, Inc., 24 Cal. 4th 317 (2000) ...oeoiiiiiiiieeec eee eee eee eee eee eee eee eee 21,23, 24 Hanson v. Lucky Stores, Inc. 74 Cal.LAPP.4th 215 (1999) eee eee eee essere eee 29 Hersant v. California Dep't. of Social Services, 57 Cal. APP. 4th 997 (1997) eee ee eee eee eee es 23 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 A P R O F E S S I O N A L C O R P O R A T I O N mi ll er © © 00 N N Oo Oo bh Ww N N = N N N D ND N N ND N D NM D N D N =» , ma a d a a aa A a a aa 0 N N O O o r A W N A O O © O N O OO O bh W N Hoang v. Wells Fargo Bank, N.A., 724 F.Supp.2d 1094 (D.Or.2010) .....cieiiiiiiii eee eee eee eee eee eee eee eee 22 Holmes v. Petrovich Development Co., LLC, 191 Cal.LAPP.Ath 1047 (20711) cence eee eee eee eee eee eres eee eens 22 Horn v. Cushman & Wakefield Western, Inc., 72 Cal. App. 4th 798 (1999) eee eee eee eee eee eee eens 24 Houston v. Regents of the Univ. of Cal., No. C 04-4443 PJH, 2006 U.S. Dist. LEXIS 27644 (N.D. Cal.2006) ..............c.cocuvn.n.... 21 Hughes v. Pair, 46 Cal. 4th at 1050... cco eee eee 28, 29 King v. United Parcel Service, 152 Cal. APP. 4th 426 (2007) ..oeeeeeeeiieieeee eee eee eee eee eee 25 LaChapelle v. Toyota Motor Credit Corp., 102 Cal. App. 4th 977 (2002) ....oceeeeeeeeee ee eee ee eee eee eee ees 24 Mcintosh v. Geithner, 2011 U.S. Dist. LEXIS 58340 (E.D. Cal. May 31, 2011) ....ccveeeieiieeeeeeeeeeeeeeeeeeee 23 McRae v. Department of Corrections & Rehabilitation (2008) 142 Cal. APP.ATh B77 o.oo eee eee eee eee eee eee 22 Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52 (2000) .......veeeeeeieeeeeeeee eee e e ee eee ee ee ee eee e e eres 23 Pantoja v. Anton, 198 Cal. APP.4th 87 (2011) cee eee eee ees 20 Prilliman v. United Airlines, 53 Cal. APP. 4th 935 (1997) cee 25 Roby v. McKesson Corp., 47 Cal. 4th B86 (2009) «o.oo eee 30 Scotch v. Art Institute of Cal., 173 Cal. App. 4th 986 (2009) ......ooeeieiiee it 25, 26 Serriv. Santa Clara University (2014) 226 Cal. APP.4th 830 ......ooiiiiiiiiee cece eee eee eee eee 27 Shoemaker v. Myers, 52 Cal. 3d 1 (1990) «cece eee ee eee esas 29 5 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 A P R O F E S S I O N A L C O R P O R A T I O N m i l l e r oO © oo N N oOo Oo h~ A Ww W DN ~~ N N O N D ND N M ND N D N D N N N a d o d o d e d e d e d e d a a a a oo ~N O O Oo BA W N a2 O O © Oo N O O O O b Ww N N a Silva v. Chertoff, 2007 WL 1795786 (D.Ariz. JUN.20, 2007) ....ooeeeeeeeeeeeee ee e e e e Taylor v. Superior Court of Los Angeles County, 28 108, 30 BOO {1 GTD) + cousins sumsossststsnins inns imams vasasns sommsmmnasn ans sxxasmms san sasamsmmmms asain samsssmswm ss Thomas v. Department of Corrections, 77 Cal.App.4th 507 (2000) .....cveeeeeeeiiie ects Trujillo v. N. County Transit Dist., 63 Cal. App. 4th 280 (1998) ....cooeeeeeeeeeeee e ee ee e ee ee eee e Tudor Delcey v. A-Dec, Inc., 2008 WL 123855 (D.Or. Jan.9, 2008) ........ccouuiieieeeeiee eases e ee Walker v. Blue Cross of Cal., 4 Cal. App. 4th 985 (1992), abrogated on other grounds by Guz, 24 Cal. I eee eee eee eee eee esate teeta eee eaee eee White v. Ultramar, Inc., 21 Cal. 4th 563 (1999) ooo eee eee eee eee eee ere eee eee 30 Statutes Cal. Gov't Code § 12940 (1)(1) ee uvererreeeeie eee ere eres eee sees eater ee eeie seine ea Cal. Labor Code §§ 3600 © SEQ........uiiiiiiiiieiiie eee ee eran California Fair Employment and HOUSING ACE ...........ooooivirii iii 20, CIVIL COE §3294 oie eee eee eee 30 Other Authorities “Kunta Kinte” COMMENT.........oooiiiiiiiee eee eee eee eee eee eee eee seas SWELIANA “TAWNY coi eee eee eee sees eset eee essen near eeeeeeaa aa 6 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 © 00 ~N OO oOo bh O W O N N N O N N D N D N D N D N N N N mn mm aa e d e d e d e d e d w a = oo ~N O O oa A O W N A O O OW 0 N O o h h h W N ~~ Oo lL INTRODUCTION During her time as a financial counselor for Defendant Southern California Permanente Medical Group (“SCPMG”), Plaintiff Angela Jernigan earned a reputation for behavior that was insubordinate, profane, rude, disruptive and even hateful. Among many other reported » 1 incidents, Jernigan is said to have derided coworkers as “stupid,” “fat,” “ugly” and “incompetent.” She wrote that one coworker was a “loser,” and called others “motherfuckers.” She speculated in writing to her supervisor that the husbands of Human Resources staff were “cheating on their ugly aging dog faces.” While Jernigan now claims not to recall having made certain of these comments, she does not deny having made any of them. On August 11, 2017, Jernigan was placed on a corrective action for insubordination after she was found to have violated a directive that she meet with patients in her hospital's Emergency Department, rather than having them sent to the Admitting Department where her workspace was located (as was standard practice). Then, on January 18, 2018, Jernigan signed a “Last Chance Agreement’ relating to inappropriate workplace behavior after a coworker had complained that Jernigan’s outbursts made her fear for her safety and the safety of other employees. Jernigan then stopped coming to work, not to return until April 1, 2018. Rather than apply for any medical or other extended leave, Jernigan attempted to cover her absences via a patchwork of “life-balance” days, sick time and vacation days. But those could only stretch so far. When Jernigan’s supervisor informed her, on March 1, 2018, that her vacation requests to take off on March 2 and 3 had been denied and Jernigan would be expected to report for work on those days, she simply took them off anyway. While Jernigan now claims she was unable to attend work on those days because she was suffering from stress, she never made any such claim during her employment, and even acknowledged that her doctor had refused to provide a note covering those days. Management determined that Jernigan’s choice not to attend work on those days (and other acts and omissions since 7 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 oO OW oo ~N oO oOo bh Ww O N = _ =a = a a A A a a aa ~N OO oa A W O N =~ mi ll er N N N N N N DN DN N N NN ND DN 2 0 N N OO a bh Ww DN =~ O O Oo © January 18) constituted a violation of her Last Chance Agreement and SCPMG’s code of conduct, and terminated Jernigan’s employment for those reasons effective April 25, 2018. Now, rather than accept an ounce of responsibility for her own conduct, Jernigan has brought a kitchen sink complaint against SCPMG alleging, variously: hostile work environment sexual harassment (though there is no evidence that any conduct of which she complains (whistling, mostly) was based on her gender); discrimination based on sex/gender (though no evidence suggests Jemigan was ever treated differently because she is a woman); disability discrimination, failure to accommodate and failure to engage in the interactive process (though there is no evidence management knew or perceived Jernigan as disabled, and Jernigan never requested any disability accommodation); retaliation (though there is no nexus between any protected complaint and any job action taken against her); intentional infliction of emotional distress (which claim is preempted by the exclusive remedy provision of the California Workers’ Compensation Act); and wrongful termination in violation of public policy (which fails along with her related underlying claims). Because each of Jernigan’s claims is meritless, SCPMG respectfully requests that this Court grant its Motion for Summary Judgment or, in the Alternative, Summary Adjudication. I. STATEMENT OF FACTS A. SCMPG’s Commitment To Providing A Workplace Free of Discrimination, Harassment, and Retaliation. SCMPG has long maintained comprehensive employment policies prohibiting any form of unlawful discrimination, harassment or retaliation." (UF Nos. 1-2.) These policies not only 1 See Kaiser's EEO and Affirmative Action Program Policy (UF No. 1); Kaiser's Commitment to a Harassment Free Work Environment (UF No. 1); Kaiser's Non-Retaliation Policy (UF No. 1); Kaiser's Principles of Responsibility (UF No. 1); Kaiser's Family and Medical Leave Policy 8 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 oo © 00 N N oO Oo A Ww N N - A A aA 4a a a oa a a B A W O N - { O N A L C O R P O R A T I O N E N ~ J QQ © ao << N N N N DN ND ND ND ND ND N N =a a © ~N OO Oo bh Ww W DN a2 O O © ow expressly prohibit sexual harassment and discrimination based on gender and disability, but also affirm SCPMG’s commitment to providing a work environment free from retaliation. (/d.) Jernigan, along with all of SCPMG’s employees, received annual training on these policies, each of which applied to Jernigan’s employment. (UF No. 3.) B. Jernigan’s Role As Financial Counselor. At all times relevant to her claims, Jernigan worked for SCPMG as a financial counselor at the Kaiser Permanente Woodland Hills Medical Center (the “Hospital’). (UF No. 5.) As a financial counselor, Jernigan was responsible for interviewing patients, determining whether they had health insurance, and, if they did not, explaining different financial assistance programs for which they might be eligible. (UF No. 6.) Though Jernigan’s work space was located in the Hospital's Admitting Department, most of these interviews took place in the Hospital's Emergency Department (also referred to as the “ED,” “Emergency Room,” or “ER”). (UF No. 7.) C. February 2017: Jernigan Emails Complaint Regarding Whistling In Emergency Department. On February 24, 2017, Jernigan sent an email bearing the subject line “Workplace Harassment . . . Ongoing. . .” to various SCPMG Human Resources mailboxes, in which she wrote; | have repeatedly attempted to call attention to the constant harassment that | am routinely subjected to in the Kaiser Woodland Hills Emergency Department. Since nothing apparently can be done, | at least want it known that Kaiser Woodland Hills CONDONES workplace ‘harassment and could care less about employees who are constantly subjected to it. (UF No. 1); Kaiser's Job Accommodation Policy (UF No. 1); Equal Employment Opportunity Internal Complaint Procedure Policy (UF No. 1). 9 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 OO © 00 ~N oO o h h Ww DN A A « A a A oa o A oO a bh W N = [ O N A L C O R P O R A T I O N N N N N DN DND N ND ND NN N N =» =a 0 N N Oo ao bh W O N ~~ O O © o o ~N (UF 9).2 Jernigan explained at deposition that this supposed “constant harassment” consisted of men “whistling and the laughing when | would go past, and the why doesn't anybody do anything about it.” (Exhibit 6; 100:22-101:16). According to Jernigan, beginning sometime in 2016, coworkers named “Joevel” and “Christian” (and possibly some security and contract workers), would engage in “this whistling thing, this whistling game of some kind” when she walked past. (UF No. 13.) Jernigan believes that, in doing so, the whistlers were attempting to communicate with each other, but she does not know what message they were trying to send, or if they were trying to make fun of her, and she does not know whether there was any sexual component to the whistling. (UF No. 14) “They were doing it,” she testified of the alleged whistling (and related smirking and laughing), “I don’t know why.” (UF No. 103). D. February-April 2017: Jernigan Rebuffs Repeated Efforts To Investigate Her Allegations. On February 27, 2017, Human Resources (“HR”) Consultant Kimberlyn Paul emailed Jernigan to request a contact phone number so that they could discuss the allegations in Jernigan’s February 24 email, but Jernigan did not respond to Paul's request. (UF Nos. 16- 17). On March 9, 2017, Jernigan’s supervisor, Swetlana “Tawny” Flores called Jernigan and asked whether they could meet the next day to discuss Jernigan’s concerns. (UF No. 18.) But Jernigan called Flores on March 10, prior to their scheduled meeting, and requested that they not meet to discuss her complaint. (UF No. 19). Flores then asked that Jernigan “give [Flores] the opportunity to help because it was important that [Jernigan] feel comfortable 2 At deposition, Jernigan explained that the only alleged prior attempts to “call attention” to the alleged “constant harassment” referred to in this February 2017 email consisted of prior complaints she had made in 2012 and 2013. (UF No. 10). However, those complaints were not of alleged harassment, but concerned alleged preferential treatment of Hispanic employees and candidates, which SCMPG had investigated and was unable to substantiate. (UF No. 11). 10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 A P R O F E S S I O N A L C O R P O R A T I O N mi ll er oO © 00 ~N Oo Oo hh W N N N O N D N D N N ND N D NN N B N A m a e d e d m d e d e d m a aa 0 ~N OO o h W N aA O O OW N O Dh Ww NN and safe when coming to work,” and, at that point, Jernigan told Flores that a few individuals in the Emergency Department, including one named “Jovel,” and a Caucasian male whose name Jernigan did not know, had been whistling at each other, “not in a ‘cat call’ type of way,” but rather as some “signal” to each other when Jernigan would walk past, and they would laugh after doing so. (UF Nos. 20-21). Flores continued to make efforts to bring Jernigan’s allegations to the attention of the HR department, but Jernigan declined or otherwise did not appear at proposed meetings with HR representatives on March 24 and 31, 2017. (UF Nos. 23-28). Then, on April 6, 2017, Jernigan texted Flores and reported she had been: deliberately harassed again by Joevel ‘pretend’ nurse in the KPED. [Kaiser Permanente Emergency Department.] He refuses to stop harassing me and tonight, as always it was blatant. | loudly informed this loser that | would be reporting him to my supervisor again. | am tired of his harassment and others who join in. What is wrong with those guys? They make me sick to the pit of my stomach. They need to be fired, but as minorities they will be excused. Just letting you know. (UF No. 29.) Flores responded within less than two hours, and set a meeting with Jernigan for April 7, 2017. (UF No. 30.). Jernigan did not present any additional detail regarding her alleged concerns during that meeting, during which Flores discussed the importance of Jernigan communicating her allegations to HR. (UF No. 31.) On April 11, Jernigan sent Flores a text message in which Jernigan explained that she did “not trust anyone at Kaiser,” that “HR is just looking for their own office gossip” and that Jernigan “won’t be meeting with HR.” (UF No. 32.) On April 13, 2017, Paul sent Jernigan a letter summarizing her attempts to follow-up on Jernigan’s February 24 email and reflecting her understanding that Jernigan had chosen not to meet with HR. (UF No. 33.) The letter indicated that Paul was considering the case closed, but that Jernigan could contact her manager or HR with any future concerns, and that 11 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 A P R O F E S S I O N A L C O R P O R A T I O N OO © 0 N N Oo Oa A W N = N N O N N D ND N D NN NN NN DN =a ma e d e d e d e d e d e a e a wa 0 ~N O O oa A W N 2 O O © 00 N O Oo BDA Ww O N she could contact Paul with any questions. (UF No. 34.) The letter was sent to Jernigan’s address via certified mail, but it was returned to sender. (UF No. 35.) On April 27, 2017, Jernigan texted Flores again and complained that a male nurse named “Christian” had “passed by me [and] began smirking and let out a whistle which stopped when he passed me.” (UF No. 39.) Then, on April 28, Jernigan sent Flores another text, this time requesting that, “when H.R. is notified, please extend the warning to the security department. A lot of those ill-raised perverts also engage in the same behavior. Thank you. They are ugly in face and behavior. Absolutely gross.” (UF No. 40.) In response to these complaints, Flores attempted to set a conference call with Jernigan and HR for May 4, 2017, but, on May 3, Jernigan texted her and wrote: No sneaky, slick tricks. I'll talk only by phone to HR. Do goodie white women and higher-ups will not be describing me around their dinner tables. They will have to find something else to discuss to break the tension from their husbands cheating on their ugly aging dog faces. (UF No. 41.) Flores sent a message in response stating that she wanted to help Jernigan, and she recognized she was frustrated, but “Please remain professional. There is no need for that. | will see you at tomorrow at 2:30, just you and | in my office and a phone call to HR.” (UF No. 42.) Jernigan responded, “I am a grown woman and | will speak as | want to. | have spent months being treated unprofessionally. | will be at my regular shift at 3:30 pm. The meeting is off. This conversation is over. Save you help. | don’t want it.” (UF No. 43.) Flores nevertheless responded, “I hope you will change your mind. | will keep the meeting available should you decide to come in.” (UF No. 44.) But Jernigan did not attend the meeting on that day or any time thereafter. (UF No. 45.) E. June 2017: Jernigan Swears At Her Supervisor In Response To Inquiry Over Whether Jernigan Called A Coworker A “Dyke.” \ On or about June 2, 2017, Flores learned of an allegation that Jernigan had been overheard saying of a member of the ED staff, “even dykes can be reported for sexual 12 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 © 00 ~N oOo Oo A WwW DN = a a4 Aa aA Aa aA a ~N oO o o h h Ww O N ~~ O mi ll er N N N D DN DN N N N N N N N N 22 oo N N OO o h W N 22 oO Oo © harassment.” (UF No. 46.) That same day, Flores called Jernigan to investigate. (UF No. 47.) During that call, Jernigan denied she had used the word “dykes,” but became extremely agitated, and began to yell that she was “fucking tired of all the bullshit” and that she “shouldn’t have to deal with this.” (UF No. 48.) The next day, Flores placed Jernigan out on a paid investigatory suspension. (UF No. 49.) Flores completed her investigation and, because she made no finding confirming that- Jernigan had used the word “dykes,” Jernigan was not subjected to any disciplinary action based on that allegation. (UF No. 51.) However, in response to her outburst on June 2, Flores provided Jernigan with a non-disciplinary memorandum dated June 22, 2017, by which Flores asked that Jernigan contact management should she have concerns, adhere to organizational policies and procedures, and “[p]lease not use language or take action which someone else may find intimidating.” (UF Nos. 52-53). F. August 2017: Jernigan Is Disciplined For Insubordination After Disregarding Management Directive To Interview Patients In The Emergency Room. At some point in June or July 2017 (and overlapping with a vacation by Flores), Jernigan decided that she no longer would meet with certain patients in the ER, and directed that ER nurses should walk patients to the Admitting Department to see Jernigan there. (UF Nos. 62.) This resulted in a meeting between Jernigan, Admitting Manager Anna Torres- Garcia and Flores’ supervisor, Revenue Cycle Director Carol Fiskio, on July 13, 2017, during which Jernigan was informed that she should interview patients in the Emergency Room, and that they should not be walked over to the Admitting Department. (UF Nos. 63.) Subsequent to that meeting, Flores reviewed records relating to ER patient visits and determined that Jernigan had not been meeting with patients in the ER as she had been directed, and issued her a Level 3 corrective action for insubordination on August 11, 2017. (UF No. 64.) Jernigan has suggested that one or more other employees may have engaged in similar conduct to with respect to seeing patients in the Admitting Department, but were not 13 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 A P R O F E S S I O N A L C O R P O R A T I O N © 0 N N oO o h ww N N =~ N N O N D N D N D ND N N N N ND N o m a mm m n d d em em da e d w d ow ~N OO Oo BA W O O N ~~ OO © o N Oo g h w o N N ~~ Oo disciplined. (UF No. 65.) However, Jernigan conceded at deposition that, in fact, she was only aware of one other employee whom she believed had engaged in similar conduct, but she did not know when he had supposedly done so, whether he had ever been instructed not to do so, or whether or not he had been disciplined for such conduct. (UF No. 66.) Neither Flores nor Fiskio are aware of any employee other than Jernigan having directed that patients be walked over from the ER to the Admitting Department for interviews, or of any financial counselors other than Jernigan who disregarded direction from management to stop such a practice and continued on with it regardless. (UF No 67.) G. September 8 Meeting and Subsequent Investigation Into Inappropriate Behavior In The Workplace. On September 8, 2017, Flores and Fiskio met with Jernigan to conduct a progress meeting regarding the Level 3 Corrective Action. (UF No. 68.) During that meeting, Flores and Fiskio attempted to discuss several issues which had come up during August and September 2017, namely: (1) an incident wherein Jernigan wrote on a sign-up sheet requesting volunteers to work on Labor Day, “Previous Employer - Yes, anytime. KP - NO”; (2) an incident in August 2017 wherein Jernigan had behaved rudely and refused to shake the hand of the new Chief Financial Officer; (3) an incident wherein Jernigan was alleged to have said, in front of witnesses, that nurses in the ER were “fucking stupid” and did not know what they were doing, and to have slammed down the phone during a conversation with an ER nurse; and (4) a comment during the September 8 meeting itself wherein Jernigan compared herself to “Kunta Kinte forced to yell Tobe.” (UF No. 69.) While Jernigan admitted to have written the comment on the sign-up sheet, and to having refused to shake the new CFO’s hand and making the “Kunta Kinte” comment, she denied at that time having made the alleged comments regarding ER nurses. (UF No. 71.) Also on September 8, 2017, another financial counselor reported to Flores that Jernigan’s behavior (including her temper and use of profane and insulting language to other employees) had caused her to fear for her safety and the safety of other employees. (UF No. 14 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 oO © 00 N N oO o r AA Ww DN N N O N D N D ND ND ND N D M D D b D b a a ma m a m y m a a a e y a 0 ~N O O Oo BA O W DN =~ O O © 0 0 N O Og D A W N 72.) Jernigan was placed on a paid investigatory leave On September 8, 2017, so that Flores could investigate the allegations relating to Jernigan’s behavior. (UF Nos. 71, 73.). In the course of that investigation, Flores spoke with multiple witnesses who confirmed that Jernigan had made comments such as “the nurses in the ER are fucking stupid and they didn’t know what they were doing,” and that they had seen her slam down the phone on an ER nurse. (UF 73.) Further, the ER nurse whom Jernigan had hung up on confirmed this interaction and stated that when, after this call, she walked over to the Admitting Department to obtain financial information in person, Jernigan was whispering things under her breath and had an angry and rude demeanor. (UF No. 75.) On October 10, 2017, Flores presented Jernigan with the findings of the investigation up to that point, at which time Jernigan claimed not to remember hanging up the phone on the ER nurse, but admitted she had called members of the ED staff “fucking stupid” for members of the Admitting Department to hear, and claimed she was not sure whether she had ever slammed the phone during a conversation with ED staff. (UF No. 78.) Jernigan claimed during the October 10 meeting that ED staff were generally always rude to her. (UF No. 79.) Jernigan remained out on paid investigatory leave while Flores continued her investigation. (UF No. 80.) Flores was unable to confirm via that investigation that ED staff had been rude to Jernigan, though it was reported during that investigation that, among other things, staff members had heard Jernigan refer to ED staff members as “motherfuckers” and “dykes,” and staff had felt “like they were walking on egg shells” due to Jernigan’s animosity? 3 Staff also reported to Flores that Jernigan had: slammed a bathroom door, hit a chair, banged on a desk, slammed a desk drawer and slammed down her phone; called co-workers “stupid” or said of them, “these fucking people are stupid,” and had called co-workers “idiots,” “incompetent,” or “fat”; asked “Why do we hire uneducated incompetent people who don’t have a degree;” told a co-worker they did not know how to do their job; said “I can’t stand this place,” and “slammed a door and walked out of the room;” and told another co-worker to “get 15 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 f e S E A P R O F E S S I O N A L C O R P O R A T I O N mi ll er oO © oo N N oO Oo h~h W N = NN O N D ND ND N N N N N N SS s e ma a e d am mS a e 0 N o Oo DA W N , OO © O N O gO b w DN (UF No. 81.) (When asked at deposition whether she had referred to ED staff as “motherfuckers” under her breath, Jernigan admitted, “That's possible. That's possible.”) (UF No. 84.) H. January 16-18, 2018: Jernigan Receives Level 4 Corrective Action For Behavior And Signs Last Chance Agreement. Based on the results of this investigation (including the comments and behaviors Jernigan had admitted to in the September 8 and 28 meetings), Flores and Fiskio elected to issue Jernigan a “Level 4” Corrective Action, also known as a “Day of Decision,” for inappropriate behavior in the workplace, which they presented to her during a meeting on January 16, 2018. (UF No. 88.) The “Day of Decision” process calls for the disciplined employee to take a paid day off work to determine whether they intend to resign their employment with SCPMG, or whether they will agree to submit a “Draft Action Plan,” and, later, a “Last Chance Agreement,” detailing steps they agree to take to bring their behavior into compliance with SCMPG’s expectations. (UF No. 89.) On January 18, 2018, Jernigan signed a Last Chance Agreement by which she agreed that she would: (1) “make a conscientious, good faith effort to interact positively with everyone | encounter in the workplace”; (2) “make a conscientious, good faith effort” to refrain from “using profanity/inappropriate language in the workplace”; (3) “abide by the harassment-free work environment [policy]’; (4) follow SCPMG’s Principles of Responsibility (which provide that employees “are expected to use good judgment, be accountable for their actions, and conduct business with integrity”); (5) “complete the KP Learn Trainings”; (6) make an appointment to speak with an EAP counselor; and (7) “attend department meetings that occur the fuck out of my face.” (UF No 82.) While Flores did not reach a specific conclusion as to whether Ms. Jernigan had made each of these individual statements or engaged in each of these individual behaviors, collectively, she found the allegations to be credible and found those allegations, taken as a whole, demonstrated that Ms. Jernigan’s behavior in the workplace had been unacceptable and was not in line with SCPMG’s code of conduct, known as the Principles of Responsibility. (UF No. 83.) At deposition, Jernigan admitted she sometimes lost her temper at work, and that she “probably” or “possibly” made each of the statements or engaged in the each of behaviors listed above (UF Nos. 85-87). 16 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 A P R O F E S S I O N A L C O R P O R A T I O N mi ll er oO OW 00 ~N Oo Oo bh Ww N N =~ N N O N ND N N ND ND ND NON NN 2 2 d c d e d e d m d a d a a a a a a oo ~N O O Oo A O W N A O © 00 N N O O G O D W I N on my shift.” (UF No. 90.) Jernigan further agreed that she “will be subject to discharge for acts or conduct that violate the employer's rules, regulations and policies relating to inappropriate behavior.” (UF No. 91). l January 18-April 1, 2018: Jernigan Stops Attending Work And Violates Last Chance Agreement After signing the Last Chance Agreement on January 18, Jernigan did not return to work again until April 1, 2018. (UF No. 92.) While SCMPG anticipates Jernigan will argue she was unable to attend work during that period because she was supposedly suffering from anxiety, panic attacks and/or depression, Jernigan admits she never communicated to anyone in SCPMG management that she suffered from anxiety, panic attacks, or depression, and never requested any accommodation based on any alleged disability. (UF Nos. 127- 128). Further, neither Paul, Flores or Fiskio ever believed or perceived Ms. Jernigan to have suffered from any of these conditions, or that her ability to perform the essential functions of her job was impacted by a disability in any way. (UF No. 127.) Jernigan did not apply for or take medical or other unpaid leave during that January 18-April 1 period, but instead, took time off as vacation, as “life balance” days, and as sick days (relating to issues which included, according to a message Jernigan sent Flores on January 24, 2017, a “severe cold”). (UF Nos. 94-95.) Though Jernigan presented several doctors’ notes pertaining to days she had called out sick during that period, none of those notes reflected that Jernigan would return to work with any restrictions of limitations. (UF No. 95.) Between March 1 and April 1, 2018, Jernigan requested no fewer than fifteen shifts off as vacation, of which Flores denied requested days off on March 2 and 3 due to staffing needs. (UF No. 96.) On March 1, Flores texted Jernigan to inform her that the March 2 and 3 dates had not been approved and that she expected Jernigan to be at work on those days. (UF No. 97.) Jernigan texted Flores in response that, “When | return to work, it will be clearly expressed to yourself and the Union Stewards. | am . . . also unable to return today or tomorrow. . . and let me be clear, the events | am suffering through, are a lot, and constantly 17 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 A P R O F E S S I O N A L C O R P O R A T I O N OO © o o N N O O O A Ww DN N N O N D ND O N ND ND N D N N a m m w d w d w d e d e d e x 0 ~N O O Oo A W O N 2 O © 00 N N OO o d Ww N N Aa dismissed out of hand by you.” (UF No. 98.)* Flores did not understand what Jernigan was referring to, and responded via text, that same day, writing “I'm not certain what you mean about me dismissing you. | do not know of these events and of course you are not obligated to tell me. I'm sorry that you are going through a difficult time. We will speak about what has transpired today when you return to work.” (UF No. 100). Jernigan did not appear for work on March 2 or 3, or offer any explanation as to why, though, on April 9, 2019, Jernigan sent a text message to Flores and Fiskio in which she explained that she had attempted to secure a doctor’s note relating to her absences on March 2 and 3, but “because | was not seen on those days, they cannot issue the note.” (UF Nos. 101, 118.) On March 13, 2018, Flores spoke with Jernigan regarding her attendance, and suggested that, should Jernigan need approved leave, she could consider a possible medical leave of absence. (UF No. 105). Jernigan did not explain during that meeting that she had been required to miss any time off for any medical purpose, nor did she ever request any approved medical leave or other extended leave relating to any time off between January 18 and April 1, 2018. (UF No. 106.) Flores subsequently sent a letter to Jernigan at her home via messenger and via text message on or around March 15, 2018, inquiring about Jernigan’s attendance on two other days for which no doctor's notes had been received at that point. (UF No. 107.) Jernigan responded that she was in the process of securing a doctor's note and accused Flores of “intending to harass me at my residence by way of messenger.” (UF No. 108.) J. April 2018: Flores and Fiskio Decide to Terminate Jernigan’s Employment. On April 5, 2018, Fiskio and Flores met with Jernigan to discuss her attendance issues and conduct since January 18, 2018. (UF No. 110) They reviewed the Last Chance Agreement, and Flores asked Jernigan about her unexcused absences on March 2 and 3. 4 Jernigan clarified at deposition that the reference to “the events | am suffering through” was intended to refer to “the harassment.” (UF No. 99.) 18 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 mi ll er SR A R E A P R O F E S S I O N A L C O R P O R A T I O N © 0 ~N oO Oo bh o w DN = N N ND N N ND ND N M ND NM NN aA a 4a a a a a a a «a 0 ~N OO oa A O W N 2,2 O O © OO N O g b W O N a2 © (UF No. 108.) Jernigan responded that she could not “see” herself not coming in for work and not having appropriate documentation, and she said that she would provide documentation relating to those absences by April 9, 2018. (UF No. 111.) Flores asked about Jernigan's comment about Flores supposedly intending to “harass” her by sending a messenger to her home, and Jernigan responded that she “did not have to answer the door” and that “KP does not force me” to do that. (UF Nos. 113-114.) Flores found Jernigan’s responses during the April 5 meeting to reflect a general refusal to take accountability for her own actions, to reflect poor judgment and to violate the terms of her Last Chance Agreement, which had included representations that Jernigan would “make a conscientious, good faith effort to interact positively with everyone | encounter in the workplace” and would follow the Principles of Responsibility. (UF No. 114.) Jernigan had also indicated in the Last Chance Agreement that she would complete “KP Learn” trainings and make an appointment to speak with an EAP counselor by February 16, 2018, but she had not done either of these as of the April 5 meeting. (UF Nos. 114-115.). Despite Jernigan’s absences, Flores was not aware of any reason Jernigan could not have at least attempted to complete the KP Learn trainings and contact an EAP counselor prior to February 16, 2018. (UF No. 117.). Based on what they saw as a failure to comply with the Last Chance Agreement and the Principles of Responsibility, Fiskio and Flores determined, after consultation with HR Consultant Paul, that Jernigan’s SCPMG employment should be terminated. (UF Nos. 119- 120) Flores then met with Jernigan and presented her with a termination letter setting forth those reasons on April 25, 2018. (UF No. 119.) Neither Paul, Flores, nor Fiskio ever made any decision or took any action adverse to Jernigan which was motivated by Jernigan’s sex, gender, alleged disability status or which was undertaken in retaliation for her having made any complaints of any allegedly unlawful or improper conduct. (UF No. 122.) 19 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 A P R O F E S S I O N A L C O R P O R A T I O N mi ll er © © 0 ~N OO Oo A W O N C N N N N N o nN nN N o nN EE N -_ - - - = - -_ -_ -_ [0 0] ~ aD 1 DH w No - oOo © o o ~ aN a BN Ww nN - In. LEGAL ARGUMENT A. Jernigan’s First Cause Of Action For Sexual Harassment/Hostile Work Environment Fails As A Matter Of Law. Though Jernigan’s pending First Amended Complaint (“FAC”) contains an allegation ” ou that other employees, including “Joevel,” “Mylene” and “Christian” “subjected her to a hostile work environment and discriminated against her,” by “[s]aying things of a sexual nature to” her, Jernigan was unable to identify any such alleged comments at deposition. (FAC at §] 3; UF No. 15.) Similarly, Jernigan was also unable to identify any “personal questions” asked of her by those same coworkers, or any “inappropriate comments” they allegedly made about her, as alleged in the FAC. (FAC at {[ 3; UF No. 15). Of the four categories of purported sexual harassment alleged in the FAC, the only one Jernigan testified to was “whistling” (which she has also contended was accompanied by laughter and smirking).> (FAC at | 3: UF Nos. 12, 39.) Such conduct, even assuming it occurred, cannot establish a claim for sexual harassment as a matter of law, as Jernigan has no evidence that the purported conduct was motivated by “a discriminatory intent or motivation based on gender,” as is required to establish sexual harassment under the California Fair Employment and Housing Act (“FEHA”). Pantoja v. Anton, 198 Cal.App.4th 87, 114 (2011). Jernigan has repeatedly expressed that she does not understand the whistling to have been a “cat call,” or to have carried with it any sexual component. (UF Nos. 14, 21). Instead, she has described it as reflecting some effort by others to communicate some message of 5 Jernigan also testified regarding a complaint she made, in April 2017, that a female ED employee had allegedly touched Jernigan on the buttocks. (UF No. 56.) That complaint was investigated and was not substantiated. (UF Nos. 58, 60). Because this alleged incident is not referenced in Jernigan’s FAC or in her charge filed with the Department of Fair Employment and Housing, SCPMG understands Jernigan does not intend to allege it as a basis for any claimed sexual harassment. But, if she did, it would not support such a claim, as Jernigan has no evidence the alleged incident was motivated by her gender. Jernigan reported to the investigator at the time that she did not know whether the employee's intention was sexual, and testified at deposition that “| don’t know why she even did such a thing.” (UF Nos. 57, 59). 20 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 A P R O S I O N A L C O R P O R A T I O N m i l l e r oO © 00 N N OO oa H O w O N a N N N D ND ND ND ND ND ND ND n m t A c d e d e d v8 m n o m 0 ~N O O Oo A W O N ~~ O O © 00 N O O N Ww DN which she was not aware. (UF No. 14.). While Jernigan has alleged the whistling (and related laughing and smirking) upset her, annoying or irritating conduct is insufficient to establish a fact issue on a hostile work environment claim where there is no evidence it was motivated by a plaintiff's gender. See e.g., Guthrey v. State of Cal., 63 Cal. App. 4th 1108, 1124 (1998) (petty annoyances and trivialities, which are not objectively based on some protected characteristic will not support a claim of harassment); Houston v. Regents of the Univ. of Cal., No. C 04-4443 PJH, 2006 U.S. Dist. LEXIS 27644, at *74 (N.D. Cal.2006) (concluding that being yelled at by supervisors did not give rise to a claim for harassment, as anti- discrimination laws are not general civility codes for the workplace); Brennan v. Townsend & O'Leary Enterprises, Inc., 199 Cal. App.4th 1336, 1357 (2011) (employer entitled to summary judgment on harassment claim where evidence did not support finding that alleged acts of harassment were based on plaintiff's gender). Regardless of whether Jernigan found her co- workers’ alleged conduct to be unpleasant, the alleged conduct cannot support a harassment claim, as there is no evidence that it related to her sex or gender, and her claim fails as a matter of law. B. Jernigan’s Second And Third Causes of Action For Discrimination Based Upon Sex/Gender And Disability Fail As A Matter of Law. SCPMG is entitled to summary judgment on Jernigan's claims for sex/gender and disability discrimination under the California Fair Employment and Housing Act (“FEHA”) for two principal reasons: (1) Jernigan cannot establish any prima facie case; and (2) SCMPG had legitimate, non-discriminatory reasons for its actions and Jernigan cannot show those reasons are a pretext for discrimination. To establish a prima facie case of discrimination under FEHA, Jernigan must show: (1) she was a member of a protected class; (2) she was performing competently or in a satisfactory manner in the position she held; (3) she suffered an adverse employment action, such as a termination, demotion or denial of an available job; and (4) ‘some other circumstances suggest discriminatory motive. Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 21 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 © © 00 ~N OO oOo hh Ww OD N SR A a e A pe e y oO a h W N = { O N A L C O R P O R A T I O N E3 m i l l e r nN N o N o nN nN N N o N o -_ -- [E Y ~ J DN On BD w nN - oO «© 0 ~J N oo 355 (2000). Jernigan cannot meet this burden, as none of the circumstances surrounding any adverse employment action she suffered suggest any discriminatory motive.® When asked at deposition whether she believed she had ever been treated unfairly, or differently or more harshly that anyone else because she was a woman, Jernigan did not testify that she believed any disciplinary action or her termination was motivated by her sex or gender, and Flores, Fiskio and Paul (each of whom are women) have testified that Jernigan’s sex was not a factor in any employment decision. (UF No. 122.)" Similarly, with respect to her disability discrimination claim, Jernigan conceded she had never even told anyone in SCPMG management about any alleged disability status, and she never requested that any disability be accommodated. (UF Nos. 129-130.) The undisputed evidence is that 6 As a preliminary matter, much of the conduct alleged in the FAC (e.g., criticizing Jernigan's performance and issuing written reprimands or corrective actions) cannot establish an “adverse employment action.” An adverse employment action, “requires a ‘substantial adverse change. in the terms and conditions of the plaintiffs employment.” Holmes v. Petrovich Development Co., LLC, 191 Cal.App.4th 1047, 1063 (2011) (internal citations omitted). Moreover, the employment action must be both detrimental and substantial. Thomas v. Department of Corrections, 77 Cal.App.4th 507, 511-512 (2000). Written discipline, absent showing of any tangible job consequences, is not sufficient to establish an adverse employment action under FEHA. McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 392 (private memoranda and letter of instruction given to a doctor to remain at her post, in and of themselves, did not rise to the level of an adverse employment action as neither had any effect on the terms and conditions of employment.) Cases decided under Title VII and the ADA have also held that written reprimands, without evidence of consequences, do not constitute an adverse employment action. See Hoang v. Wells Fargo Bank, N.A., 724 F.Supp.2d 1094, 1104 (D.Or.2010) (a warning letter which affected no materially adverse change in the terms and conditions of the plaintiff's employment was not an adverse employment action); Tudor Delcey v. A-Dec, Inc., 2008 WL 123855, at *4 and *9 (D.Or. Jan.9, 2008) (a written warning was not an adverse employment action because it had no impact on the employee's status); Silva v. Chertoff, 2007 WL 1795786, at *7 (D.Ariz. Jun.20, 2007) (a letter of reprimand without any employment consequences was not an adverse employment action). 7 The only possibly gender-based conduct she mentioned in response was the alleged whistling, laughing and smirking, as to which she conceded “I don't know what they were thinking” and “they were doing it . . . | don’t know why.” (UF No. 103.) 22 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 oO © 00 ~N OO Oo bh Ww W O N a E R a oa e R = e R m k aD o h Ww W N N S I O N A L C O R P O R A T I O N m i l l e r 0 oo qo Ho N N N DN DN DN ND NN N N =a a 0 N N O&O o r A W N 2 O O © © neither Flores, Fiskio nor Paul ever knew or perceived Jernigan to have been disabled. (UF No. 129.) But even if Jernigan could establish any prima facie case of discrimination - and she can't - SCPMG is entitled to articulate a legitimate, non-discriminatory reason for the employment decision at issue. Guz, 24 Cal. 4th at 355-56. SCMPG need only show that its action was not based on prohibited factors, not that they were “wise” or “fair.” Id. at 358; Hersant v. California Dep't. of Social Services, 57 Cal. App. 4th 997, 1005 (1997) (observing that the plaintiff brought an action for “discrimination,” not “general unfairness”). It is not the role of the Court to second-guess SCPMG’s legitimate business decision. See Mcintosh v. Geithner, 2011 U.S. Dist. LEXIS 58340, at *38 (E.D. Cal. May 31, 2011) (“Courts may not sit as super personnel departments, assessing the merits - or even the rationality - of employer's ” nondiscriminatory business decisions.””) SCPMG easily meets its burden: by her conduct between January 18 and April 1 (including, without limitation, taking unexcused absences on March 2 and 3, and failing to complete required training or make an appointment with the EAP counselor) Jernigan failed to live up to the obligations in her Last Chance Agreement (which specifically provided that violations thereof could be grounds for termination) and violated SCMPG’s Principles of Responsibility. (UF Nos. 90, 112, 114-115, 119.) This cannot reasonably be disputed. Once SCMPG offers such a legitimate reason, Jernigan has the burden to produce evidence that the reason is pretextual and that the true reason involves prohibited discrimination. Guz, 24 Cal. 4th at 355-356. A plaintiff can attempt to prove pretext through direct evidence (‘a discriminatory reason more likely motivated the employer”) or circumstantial evidence (“the employer's proffered explanation is unworthy of credence”). Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 68 (2000) (internal quotation marks and citations omitted). Circumstantial evidence of pretext must be “specific and substantial.” Id. at 69 (internal quotation marks omitted). The pivotal question is simply whether the 23 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 A P R O F E S S I O N A L C O R P O R A T I O N m i l l e r © o o N N oO oOo Ah Ww DN = N N N N O N ND N N N D N N ND U N 2 ma m a m a m y m d mm m a a d o e oo N N oO Oo A W O N ~~ O O © 00 N O O h h W N . OO “employer ‘honestly believed in the reasons it offers.” Guz, 24 Cal. 4th at 358 (internal quotation marks omitted). Critically, Jernigan cannot rely on speculation, conjecture or her highly subjective “feelings” in an attempt to create issues of fact on these issues. See LaChapelle v. Toyota Motor Credit Corp., 102 Cal. App. 4th 977, 981 (2002) (opposing party cannot rely on “mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact”); Horn v. Cushman & Wakefield Western, Inc., 72 Cal. App. 4th 798, 807 (1999) (FEHA case; issues of fact cannot be “created by speculation or conjecture”). Jernigan has no evidence to dispute the fact that SCPMG believed Jernigan had violated the terms of her Last Chance Agreement and the Principles of Responsibility. At best, all Jernigan might offer is her own suspicion that her purported disability somehow influenced the disciplinary actions or termination. But to avoid summary judgment, Jernigan must do much more. She must offer specific and substantial evidence of discrimination. See Hom, 72 Cal. App. 4th at 806-7; Walker v. Blue Cross of Cal., 4 Cal. App. 4th 985, 996 (1992) (holding that a former employee’s suspicion of “improper motives” was “based on conjecture and speculation” and was insufficient to establish discriminatory bias), abrogated on other grounds by Guz, 24 Cal. 4th at 351. Jernigan’s own sworn testimony confirms the absence of any such evidence, and summary judgment should be granted as to Jernigan’s disability discrimination claim. C. Jernigan’s Fourth and Fifth Causes of Action for Failure to Accommodate and Failure to Engage in the Interactive Process Fail As A Matter of Law. As the undisputed evidence is that SCPMG management never knew or perceived Jernigan to be disabled, and she never requested any accommodation for any disability, her fourth and fifth causes of action, for failure to accommodate and failure to engage in the interactive process under FEHA, both must fail as a matter of law. Two key principles underlie a failure to provide a reasonable accommodation cause of action: (1) the employee must 24 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 A P R O F E S S I O N A L C O R P O R A T I O N mi ll er OO © oO o N N O O Oo A Ww N N = N N O N D ND ND D D N D UN DM D A a m d m m a m a a s a m a a 0 ~N O O Oo A WO N N 2 O © 0 0 N N OO og DAA O w O N - request an accommodation of a disability or it must be apparent that one may be necessary; and (2) the employee and employer must engage in a good faith interactive process regarding the requested accommodation. Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 54 (2006).2 Although a claim for failure to accommodate is independent of a claim for failure to engage in the interactive process, each “necessarily implicates the other.” See id. Thus, to establish her failure to accommodate claims, Jernigan must establish that she actually requested, or made known, the need for an accommodation of her purported disability. As Jernigan admits, she never made such a request. (UF No. 128). While Jernigan will likely contend her alleged disability should have been inferred from her repeated references to alleged “harassment,” this is insufficient to have triggered an obligation on SCPMG’s part to provide an accommodation. See King v. United Parcel Service, 152 Cal. App. 4th 426, 444 (2007) (although the plaintiff described in detail how poorly he felt, he did not establish that he made the kind of specific request required to trigger the employer's duty to provide an accommodation); Prilliman v. United Airlines, 53 Cal. App. 4th 935, 954 (1997) (“The employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.”) The fact that Jernigan provided SCPMG with several doctor's notes relating to days she took off as sick leave (including, on occasion, for what she told Flores was a “bad cold”) does not compel a different conclusion, as those notes contained no restrictions that would 8 The only purported request for accommodation Jernigan has identified concerned the possibility that patients might meet her in her department, rather than in the ER. Crucially, Jernigan has not contended that this such an accommodation would not have been required to accommodate a disability, but rather that it would supposedly help her avoid alleged harassment. (UF No. 65.) This cannot suffice to support a disability accommodation claim. See Scotch v. Art Institute of Cal., 173 Cal. App. 4th 986, 994 (2009) (affirming summary judgment for employer in action involving claims of failure to accommodate and failure to engage in the interactive process; reasonable accommodation “mean[s] a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired) (emphasis added). "25 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 HE E E E E A P R O F E S S I O N A L C O R P O R A T I O N mi ll er © oo ~N oO o h h Ww W DN a N N N D N D N D N D D DD A A A aA ea a a y e a e a e 0 ~N O O 1 A W N 2 O O © O N oO Oa bh Ww W O N =~ OO apply upon Jernigan’s return to work. (UF No. 95.) Avila v. Continental Airlines, Inc., 165 Cal. App. 4th 1237, 1252-53 (2008) (employee did not place employer on notice regarding his need for consideration of a reasonable accommodation where he simply provided a doctor's note which put him off work for four days and such note did not provide any medical restrictions). In short, Jernigan did not need and did not request any accommodation other than (at most) the sick days off that were granted. Given this, her failure to accommodate claim fails. Jernigan’s claim for failure to engage in the interactive process fails for the same reason - because Jernigan did not need any further accommodation beyond the sick leave provided, SCPMG had no duty to engage in the interactive process upon her return. Scotch, 173 Cal. App. 4th at 994 (2009). The law does not require an employer to explore accommodations for a job the employee can already perform without any additional assistance. Moreover, assuming SCPMG had any obligation to engage in the interactive process, Jernigan would be unable to establish a claim, as she failed to participate in that process in good faith by failing to explain to Flores (even in response to Flores’ suggestion that she might apply for a medical leave) the need for any accommodation. See Gelfo, 140 Cal. App. 4th at 62 n. 22 (“Liability hinges on the objective circumstances surrounding the parties breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.”) D. Plaintiff's Sixth Cause of Action For Retaliation In Violation of the FEHA Fails As A Matter of Law. In order to establish a prima facie case of retaliation, Jernigan must show a causal connection between engagement in a protected activity and an allegedly retaliatory adverse employment action. Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467, 476 (1992). Jernigan simply cannot meet this initial burden of proof, as none of the conduct which precipitated any adverse employment action against her (e.g, unexcused absences on March 2 and 3, or her 26 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 © 00 N N O O og A WwW DN = N N o N o No No nN No No nN - be ik i - - py = 3 o c i sy oo ~l [0 ] oa A w N o - oO © 0 ~l [0 ] ol HH w nN - Oo failure to complete the KP Learn training by February 16) was protected, and her sixth cause of action for FEHA retaliation has no merit. And, even if Jernigan could establish a prima facie case for FEHA retaliation, an employer articulating legitimate reasons for the action is entitled to summary judgment when the employee's showing is too weak to sustain a reasoned inference in the employee's favor. See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 865 (employer entitled to summary judgment in FEHA retaliation because plaintiff failed to produce substantial evidence that the employer's reasons were untrue or perpetrator acted with a discriminatory animus, and explaining that employee’s arguments were contradicted by her own documentary evidence and deposition testimony.) The evidence here is of an employee who steadfastly refused to abide by her employer's reasonable expectations for her behavior, who continuously rebuffed management efforts to follow up on her claims of “harassment,” and who, when she finally began to see the potential consequences of her actions, simply gave up any pretense of attempting to report for work and do her job. No “reasoned inference” would suggest retaliation was behind any employment action that was taken against her. E. Jernigan’s Seventh Cause Of Action For Failure To Prevent Discrimination and Harassment Fails As A Matter Of Law. Jernigan’s seventh cause of action for failure to prevent harassment and discrimination rises and falls with her underlying harassment and discrimination claims. Because Jernigan cannot establish that she actually suffered any unlawful discrimination, harassment, or retaliation, her failure to prevent claim also fails. See supra §§ Il. A-E; see also Trujillo v. N. County Transit Dist., 63 Cal. App. 4th 280, 288-89 (1998) (an employer cannot be liable for failing to prevent harassment when no such conduct actually occurred). The fact that SCPMG maintains express policies that prohibit discrimination and harassment, and provides annual compliance training on these policies, also defeats this claim. (UF Nos. 1-3). Cal. Gov't Code § 12940 (j)(1); Barrett v. Applied Radian Energy Corp., 240 F.3d 262, 266 (4th Cir. 2001) 27 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 OO © 00 N O o r A Ww O N = N O N ND ND D D N NM N V = a s a a a a a aa a a e d ea aa a a 0 ~N oO Oa A O W N A O O © O N O O O DND N O W N Aa (affirming dismissal; distribution of an anti-harassment policy is proof that an employer has exercised reasonable care to prevent and correct sexual harassment). F. Jernigan’s Eighth Cause of Action for Intentional Infliction of Emotional Distress Fails As A Matter Of Law Jernigan cannot establish her claims for intentional infliction of emotional distress for two reasons: (1) because Jernigan cannot establish her FEHA-based causes of action, these claims are preempted by California's Workers’ Compensation Act; and (2) Jernigan cannot establish a prima facie case for intentional infliction of emotional distress in any event. 1. Jernigan’s Claim is Preempted By The Exclusive Remedy Provisions of The California Workers’ Compensation Act. Because Jernigan’s statutory claims are meritless, her common law claim for intentional infliction of emotional distress (“IIED”) is subject to the exclusive remedy provisions of the California Workers’ Compensation Act. See Cal. Labor Code §§ 3600 et seq.; Fermino v. Fedco, Inc., 7 Cal. 4th 701, 713-14 (1994). Claims for emotional distress caused by the employer's conduct in employment actions involving termination, demotions, criticism of work practices, etc., are deemed “part of the normal risk of employment” and hence subject to the exclusive remedy provisions of the workers’ compensation law. See Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800, 814-815 (2001); Cole v. Fair Oaks Fire Protection Dist., 43 Cal. 3d 148, 160 (1987). 2. Even if The Intentional Infliction Claim is Not Preempted (And It Is), Jernigan Cannot Establish a Prima Facie Case. Even if not preempted, Jernigan cannot meet all elements of an IED claim, which would require her to prove: (1) extreme and outrageous conduct by SCPMG; (2) SCPMG's intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. Hughes v. Pair, 46 Cal. 4th at 1050; Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d at 155 n.7. Jernigan has no evidence meeting the first and second prongs. 28 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 m i l l e r T R A U T I R A P R O F E S S I O N A L C O R P O R A T I O N oO © oo N N O O Oo A 0 NN N N O N D O N N D N D ND N N N D N =a a e a m e a e a as a aa e a w a ww ~N O O Oo A W O N A O O © 00 N O o h h Ww W O N - To considered be “extreme,” conduct must “exceed all bounds of that usually tolerated in a civilized community.” Hughes, 46 Cal. 4th at 1050-51. Whistling, smirking or laughing simply would not meet this standard. And, as a matter of law, personnel management activities such as hiring, firing, discipline and criticisms are a normal part of the employer- employee relationship and do not constitute outrageous conduct, even if intentional or malicious. Shoemaker v. Myers, 52 Cal. 3d 1, 25 (1990) (affirming dismissal of IIED claim predicated on employee’s termination); Buscemi v. McDonnell Douglas Corp., 736 F.2d 1348, 1352 (9th Cir. 1984) (allegation that discriminatory termination was done in a callous and insensitive manner is not outrageous as a matter of law). As to the second element, Paul, Fiskio and Flores each deny they acted with any intent to cause Jernigan to experience emotional distress (UF No. 141), and no such conclusion would follow reasonably and logically from the conduct Jernigan has ascribed to them. See Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d at 155 n.7. Furthermore, the only one of these three whom Jernigan has suggested meant to upset her was Flores, and Jernigan admitted that she has no evidence of her intent. (UF No. 140.) Similarly, Jernigan admitted she has no evidence as to what her coworkers were thinking when they allegedly engaged in the conduct of which she has complained. (UF No. 14, 57, 59.) These admission also foreclose the claim. G. Jernigan’s Ninth Cause Of Action For Wrongful Termination In Violation Of Public Policy Fails As A Matter Of Law. As shown above, Jernigan cannot establish that her termination was due to her sex and/or gender or alleged disability, or in retaliation for her engaging in protected activity, or that it violated FEHA (or any other constitutional or statutory provision). Thus, Jernigan’s ninth cause of action fails as a matter of law for this reason as well. Hanson v. Lucky Stores, Inc. 74 Cal.App.4th 215, 229 (1999) (“Because Hanson's FEHA claim fails, his claim for wrongful termination in violation of public policy fails.”). 29 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 S S m E A P R O F E S S I O N A L C O R P O R A T I O N mi ll er © oO N N O O Oo bh Ww W N N = N N N N N D N D N D N N NN N N n m m y e d e d e d w d w a o a o a 0 ~N O&O Oo A W O N A OO © 00 N O o A Ww N aA oo H. Plaintiff Cannot State A Claim For Punitive Damages. Jernigan’s claim for punitive damages fails for two independent reasons. First, no one said to have engaged in any purportedly unlawful conduct Jernigan has alleged was an “officer, director or managing agent” of SCMPG. (Civil Code §3294). Though SCPMG anticipates that Jernigan may allege that Flores or Fiskio had sufficient authority within SCPMG to be considered a managing agent within the meaning of Civil Code section 3294, neither came anywhere close. As the California Supreme Court has made clear, “managing agents” under the law ‘include only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.” White v. Ultramar, Inc., 21 Cal. 4th 563, 566-67 (1999). Corporate policy is “the general principles which guide a corporation, or rules intended to be followed consistently over time in corporate operations.” Cruz v. Homebase, 83 Cal. App. 4th 160, 167-68 (2000). In other words, in order for an employee to be considered a “managing agent,” that employee must operate at a sufficiently high level so as to “affect a substantial portion of the company and that are the type likely to come to the attention of corporate leadership.” Roby v. McKesson Corp., 47 Cal. 4th 686, 714-15 (2009); see also Gelfo, 140 Cal. App. 4th at 63 (a “managing agent’ is one with substantial authority over decision that set these general policies and rules.”) The burden of establishing this is on the party seeking punitive damages. White, 21 Cal. 4th at 577. The only two members of SCPMG management by whom Jernigan has alleged any wrongdoing were Flores and Fiskio. But Flores’ responsibilities were limited to managing about 13 to 16 financial counselors at the Hospital, and Fiskio was responsible only for direct and indirect supervision of about 26 employees, all but one of whom also worked at that same location. (UF Nos. 146-149, 153-154.) Because neither Flores nor Fiskio played any part in setting corporate policy, or any other rules or directives that impacted anyone other than the 30 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698 m i l l e r i n H A R I N G R A S E R R A P R O F E S S I O N A L C O R P O R A T I O N © © 00 N N O O Oa Ah O W N N N N N N N N NN N N N ww a aa c d w d e d o d o d m d o a RO ~N O O Oa H O w O N a2 Oo © 00 N O O O U D A w W w N A limited number of employees they supervised (UF Nos. 146, 153.), Jernigan cannot meet her burden and her claim for punitive damages must be dismissed. White, 21 Cal. 4th at 577. Even if Jernigan could show Flores or Fiskio was a managing agent, her claim would still fail as she cannot establish clear and convincing evidence of malice, fraud, or oppression. Cal. Civ. Proc. Code § 3294; see Sections Il.A-G, supra. “Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the Plaintiff's rights, a level which decent citizens should not have to tolerate.” American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App. 4th 1017, 1050-1051 (2002); see also Taylor v. Superior Court of Los Angeles County, 24 Cal. 3d 890, 894-895 (1979) (“[s]Jomething more than the mere commission of a tort is always required for punitive damages”). Jernigan cannot point to any conduct that could be reasonably considered malicious, oppressive or fraudulent. In fact, Jernigan cannot even state under oath whether she thinks anyone in SCMPG management acted with an intent to cause her harm. (UF No. 138.) Given this, her punitive damages claim must be dismissed. IV. CONCLUSION For the foregoing reasons, SCPMG respectfully requests that the Court grant summary judgment in its favor or, in the alternative, summary adjudication. MILLER LAW GROUP A Professional Corporation Dated: February 21, 2019 John R. Carrigan, Jr. © ‘Attorneys for Defendant SOUTHERN CALIFORNIA "PERMANENTE MEDICAL GROUP 4823-1718-5416, v. 4 31 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No: BC703698