Opposition_defendants_response_to_separate_statement_iso_plaintiffs_motion_to_compel_re_special_interrogatories_set_fourMotionCal. Super. - 2nd Dist.July 16, 2018Electronically FILED by Superior Court of California, County of Los Angeles on 07/01/2020 09:59 AM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Allison V. Saunders, Bar No. 220010 asaunders @ fordharrison.com Jenny S. Choi, Bar No. 285839 jchoi@fordharrison.com Angela S. Fontana, Bar No. 287398 afontana@fordharrison.com FORD & HARRISON LLP 350 South Grand Avenue, Suite 2300 Los Angeles, CA 90071 Telephone: 213-237-2400 Facsimile: 213-237-2401 Nancy L. Patterson nancy.patterson @morganlewis.com MORGAN LEWIS & BOCKIUS LLP 1000 Louisiana St., Suite 4000 Houston, TX 77002-5005 Telephone: 713-890-5000 Facsimile: 713-890-5001 Attorneys for Defendants WEST HILLS HOSPITAL and HCA HUMAN RESOURCES, LLC (DOE 1) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES SUSAN M. DENARDO, Plaintiff, Vv. WEST HILLS HOSPITAL, a corporation; HCA HEALTHCARE, INC. a corporation; JAMES CROUCH, an individual; ADAM GARDNER, an individual; and Does 1 through 10, inclusive, Defendants. WSACTIVELLP:11567549.1 CASE NO. BC714017 [Assigned for all purposes to the Hon. Barbara M. Scheper, Dept. 30] DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORY (SET FOUR) [Filed concurrently with Opposition to Motion to Compel and Declaration of Jenny S. Choi] Hearing Date: July 15, 2020 Time: 8:30 a.m. Dept.: 30 Complaint Filed: July 16, 2018 Trial date: January 19, 2021 /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Defendant West Hills Hospital ("Hospital") hereby submits its Separate Statement in Opposition to Plaintiff Susan M. Denardo’s ("Plaintiff") Motion to Compel Further Responses to Special Interrogatories, Set Four, Nos. 1-4 and 7-15. SPECIAL INTERROGATORY NO. 1: Please specify what, if any, accommodations have been granted to Neta Patel (omitting any HIPAA information). DEFENDANT'S RESPONSE TO SPECIAL INTERROGATORY NO. 1: Objection. Responding Party objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time, and the term "accommodation" so as to make responding unduly burdensome and harassing. Responding Party objects to this interrogatory on the basis that it is neither relevant to the subject lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not pal ties to this litigation (California Constitution Article 1, Section 1). This interrogatory has, in substance, been previously propounded in Special Interrogatories, Set Two No. 8. Continuous discovery into the same matter constitutes oppression. (Professional Career Colleges v. Superior Court (1989) 207 Cal.App.3d 490, 493- 494.) PLAINTIFF'S REASON FOR FURTHER RESPONSE: By way of background, Ms. DeNardo requested light duty for several months starting on August 29, 2017. Despite their stated policy of providing light duty, and it was unilaterally denied. (Defendant's Transitional Work Program, DeNardo 223-227, Exhibit F to the Motion.) Along those lines, we have heard that West Hills Hospital has provided light duty to Department of Imaging employees: 1) Cheri Van; 2) George Ramirez; 3) Vahid Hakkakzadeh; and 4) Neta Patel, but they have not verified that. As such, Request Nos. 6-9 seek documentation verifying these accommodations. This information is required for Plaintiff to move forward with the case. In fact, it is the employee's burden to prove available accommodations. The Plaintiff must use discovery to identify possible available accommodations. (Scotch v. Art Inst. of California (2009) 173 Cal. App. WSACTIVELLP: 11567549.1 _2- /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES 4th 986, 1019 ["In litigation, the employee has discovery tools available to learn what accommodations might have been discussed during the interactive process."]; See also Nadaf- Rahrov v. Neiman Marcus Grp., Inc. (2008) 166 Cal. App. 4th 952, 977; Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App.4th 215, 226 ["As long as a reasonable accommodation is available to the employer that could have plausibly enabled a handicapped employee to adequately perform his job, an employer is liable for failing to attempt that accommodation."]; see also Rowe v. City & County of San Francisco (N.D. Cal. 2002) 186 F.Supp.2d 1047.) Plaintiff has to show that they gave light duty to other employees, and the same opportunity was denied to her. Plaintiff has heard that from 2014-2018, West Hills Hospital has given light duty to the following employees (same department), but it has not been verified: 1) Cheri Van; 2) George Ramirez; 3) Vahid Hakkakzadeh; and 4) Neta Patel. HOSPITAL'S OPPOSITION TO PLAINTIFF'S POSITION: Plaintiff seeks information pertaining to accommodations that were allegedly provided to another employee in the Imaging Department at Hospital from 2014-2018. However, Plaintiff previously served the same interrogatories as part of Plaintiff’s Special Interrogatories, Set Two. In that set, Plaintiff’s Special Interrogatories Nos. 5-9, Plaintiff asked for “all accommodations provided at WEST HILLS HOSPITAL from 2014-2018” and information about accommodations provided to this individual. (Choi Decl. {5, Ex. 2.) (Id.) Hospital served its responses on August 16, 2019. Hospital served its responses to Set Two on August 16, 2019. (/d.) Plaintiff cannot circumvent the procedural mechanisms set forth in the Discovery Act by propounding the same question again. Professional Career Colleges v. Superior Court (1989) 207 Cal. App.3d 490, 494. On December 19, 2019, Plaintiff filed a motion to compel with respect to Hospital's responses to Special Interrogatories, Set Two. The hearing on this motion is set for December 9, 2020. It is unclear why Plaintiff filed this Motion before the hearing regarding Set Two, however the timing of this Motion does not negate that Plaintiff has filed the same motion twice and that Hospital's properly asserted objections to this duplicative discovery. As such, this continuous request is an abuse of the discovery process and Plaintiff has waived her right to seek a further response. WSACTIVELLP:11567549.1 -3- /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Additionally, Plaintiff’s time frame is overbroad as Mr. Crouch did not become Director of the department until November 2015. Accommodations that may have been provided during a different Director’s tenure are not probative to the issue of whether Mr. Crouch provided accommodations. Further, whether an accommodation is granted depends on that particular employee’s individual restrictions, the essential functions of his or her position, as well as other factors including whether the Hospital had the ability to reasonably accommodate the employee at that time. Therefore, documents pertaining to another employee’s accommodations, in order to have any meaning, would require the employee to be performing the same position as Plaintiff and require the same type of accommodations at the same time. Absent these conditions, disclosure of other employees’ confidential medical information results in nothing more than an unnecessary invasion of their constitutional privacy rights. This request is also overbroad as it seeks information that goes beyond the relevant time frame related to Plaintiff. Specifically, Plaintiff was subject to restrictions starting on August 29, 2017 and was terminated in February 2018. Even if other employees were provided a reasonable accommodation at other time periods, this does not mean that any such accommodations were available during the time that Plaintiff was under restrictions. At the IDC, this Court provided guidance that Plaintiff’s requested time frame was overbroad and that the scope of these requests to Plaintiff’s unit should be limited to a one year time frame (i.e. March 2017 to February 2018). However, Plaintiff has refused to narrow the time period and continues to seek information within a four year time frame (2014-2018). This time frame is further inappropriate as it seeks information that predates the time that James Crouch (Plaintiff’s decisionmaker) became Director of the department (November 2015). Additionally, in arguing that such information is discoverable, Plaintiff improperly conflates light duty assignments with reasonable accommodations. A reasonable accommodation means “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” Cuiellette v. City of Los Angeles, 194 Cal. App.4th 757, 766 (2011). As applied to Plaintiff, it would mean a modification or adjustment that would WSACTIVELLP: 11567549.1 -4- /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES permit her to resume her duties as a Radiologic Technologist (“Rad Tech”). A light duty assignment is a temporary task assigned to an employee injured at work that may or may not be in their own department and does not include performance of the employee’s essential functions. There is no legal requirement for an employer to provide light duty assignments. Nealy v. City of Santa Monica, 234 Cal.App.4th 359, 375 (holding that “FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions.”) Therefore, whether or not another employee was provided a light duty assignment is not probative as to the issue of whether Hospital reasonably accommodated Plaintiff and disclosure of other employees’ confidential medical information results in nothing more than an unnecessary invasion of their constitutional privacy rights. For all of these reasons, Hospital stands by its objections and respectfully requests that the Court deny Plaintiff’s Motion as to this request. To the extent that this Court is inclined to grant Plaintiff’s Motion, Hospital requests that the scope of the discovery be limited in time and scope for the reasons set forth above. SPECIAL INTERROGATORY NO. 2: Please specify what, if any, accommodations have been granted to Cherie Van (omitting any HIPAA information). DEFENDANT'S RESPONSE TO SPECIAL INTERROGATORY NO. 2: Objection. Responding Party objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time, and the term "accommodation" so as to make responding unduly burdensome and harassing. Responding Party objects to this interrogatory on the basis that it is neither relevant to the subject lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not parties to this litigation (California Constitution Article 1, Section 1). This interrogatory has, in substance, been previously propounded in Special Interrogatories, Set Two No. 6. Continuous discovery into the same matter constitutes oppression. (Professional Career Colleges v. Superior Court (1989) 207 Cal.App.3d 490, 493- 494.) WSACTIVELLP:11567549.1 = = /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES PLAINTIFF'S REASON FOR FURTHER RESPONSE: By way of background, Ms. DeNardo requested light duty for several months starting on August 29, 2017. Despite their stated policy of providing light duty, and it was unilaterally denied. (Defendant's Transitional Work Program, DeNardo 223-227, Exhibit F to the Motion.) Along those lines, we have heard that West Hills Hospital has provided light duty to Department of Imaging employees: 1) Cheri Van; 2) George Ramirez; 3) Vahid Hakkakzadeh; and 4) Neta Patel, but they have not verified that. As such, Request Nos. 6-9 seek documentation verifying these accommodations. This information is required for Plaintiff to move forward with the case. In fact, it is the employee's burden to prove available accommodations. The Plaintiff must use discovery to identify possible available accommodations. (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1019 ["In litigation, the employee has discovery tools available to learn what accommodations might have been discussed during the interactive process."]; See also Nadaf- Rahrov v. Neiman Marcus Grp., Inc. (2008) 166 Cal. App. 4th 952, 977; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 ["As long as a reasonable accommodation is available to the employer that could have plausibly enabled a handicapped employee to adequately perform his job, an employer is liable for failing to attempt that accommodation."]; see also Rowe v. City & County of San Francisco (N.D. Cal. 2002) 186 F.Supp.2d 1047.) Plaintiff has to show that they gave light duty to other employees, and the same opportunity was denied to her. Plaintiff has heard that from 2014 - 2018, West Hills Hospital has given light duty to the following employees (same department), but it has not been verified: 1) Cheri Van; 2) George Ramirez; 3) Vahid Hakkakzadeh; and 4) Neta Patel. HOSPITAL'S OPPOSITION TO PLAINTIFF'S POSITION: Plaintiff seeks information pertaining to accommodations that were allegedly provided to another employee in the Imaging Department at Hospital from 2014-2018. However, Plaintiff previously served the same interrogatories as part of Plaintiff’s Special Interrogatories, Set Two. In that set, Plaintiff’s Special Interrogatories Nos. 5-9, Plaintiff asked for “all accommodations provided at WEST HILLS HOSPITAL from 2014-2018” and information about accommodations WSACTIVELLP: 11567549. 1 -6- /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES provided to this individual. (Choi Decl. {5, Ex. 2.) (Id.) Hospital served its responses on August 16, 2019. Hospital served its responses to Set Two on August 16, 2019. (/d.) Plaintiff cannot circumvent the procedural mechanisms set forth in the Discovery Act by propounding the same question again. Professional Career Colleges v. Superior Court (1989) 207 Cal. App.3d 490, 494. On December 19, 2019, Plaintiff filed a motion to compel with respect to Hospital's responses to Special Interrogatories, Set Two. The hearing on this motion is set for December 9, 2020. It is unclear why Plaintiff filed this Motion before the hearing regarding Set Two, however the timing of this Motion does not negate that Plaintiff has filed the same motion twice and that Hospital's properly asserted objections to this duplicative discovery. As such, this continuous request 1s an abuse of the discovery process and Plaintiff has waived her right to seek a further response. Additionally, Plaintiff’s time frame is overbroad as Mr. Crouch did not become Director of the department until November 2015. Accommodations that may have been provided during a different Director’s tenure are not probative to the issue of whether Mr. Crouch provided accommodations. Further, whether an accommodation is granted depends on that particular employee’s individual restrictions, the essential functions of his or her position, as well as other factors including whether the Hospital had the ability to reasonably accommodate the employee at that time. Therefore, documents pertaining to another employee’s accommodations, in order to have any meaning, would require the employee to be performing the same position as Plaintiff and require the same type of accommodations at the same time. Absent these conditions, disclosure of other employees’ confidential medical information results in nothing more than an unnecessary invasion of their constitutional privacy rights. This request is also overbroad as it seeks information that goes beyond the relevant time frame related to Plaintiff. Specifically, Plaintiff was subject to restrictions starting on August 29, 2017 and was terminated in February 2018. Even if other employees were provided a reasonable accommodation at other time periods, this does not mean that any such accommodations were available during the time that Plaintiff was under restrictions. At the IDC, this Court provided WSACTIVELLP: 11567549. 1 -7- /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES guidance that Plaintiff’s requested time frame was overbroad and that the scope of these requests to Plaintiff’s unit should be limited to a one year time frame (i.e. March 2017 to February 2018). However, Plaintiff has refused to narrow the time period and continues to seek information within a four year time frame (2014-2018). This time frame is further inappropriate as it seeks information that predates the time that James Crouch (Plaintiff’s decisionmaker) became Director of the department (November 2015). Additionally, in arguing that such information is discoverable, Plaintiff improperly conflates light duty assignments with reasonable accommodations. A reasonable accommodation means “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” Cuiellette v. City of Los Angeles, 194 Cal. App.4th 757, 766 (2011). As applied to Plaintiff, it would mean a modification or adjustment that would permit her to resume her duties as a Radiologic Technologist (“Rad Tech”). A light duty assignment is a temporary task assigned to an employee injured at work that may or may not be in their own department and does not include performance of the employee’s essential functions. There is no legal requirement for an employer to provide light duty assignments. Nealy v. City of Santa Monica, 234 Cal.App.4th 359, 375 (holding that “FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions.”) Therefore, whether or not another employee was provided a light duty assignment is not probative as to the issue of whether Hospital reasonably accommodated Plaintiff and disclosure of other employees’ confidential medical information results in nothing more than an unnecessary invasion of their constitutional privacy rights. For all of these reasons, Hospital stands by its objections and respectfully requests that the Court deny Plaintiff’s Motion as to this request. To the extent that this Court is inclined to grant Plaintiff’s Motion, Hospital requests that the scope of the discovery be limited in time and scope for the reasons set forth above. SPECIAL INTERROGATORY NO. 3: Please specify what, if any, accommodations have been granted to Vahid Hakakabeh (omitting any HIPAA information). WSACTIVELLP: {1567549.1 -8- /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES DEFENDANT'S RESPONSE TO SPECIAL INTERROGATORY NO. 3: Objection. Responding Party objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time, and the term "accommodation" so as to make responding unduly burdensome and harassing. Responding Party objects to this interrogatory on the basis that it is neither relevant to the subject lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not patties to this litigation (California Constitution Article 1, Section 1). This interrogatory has, in substance, been previously propounded in Special Interrogatories, Set Two No. 7. Continuous discovery into the same matter constitutes oppression. (Professional Career Colleges v. Superior Court (1989) 207 Cal.App.3d 490, 493- 494.) PLAINTIFF'S REASON FOR FURTHER RESPONSE: By way of background, Ms. DeNardo requested light duty for several months starting on August 29, 2017. Despite their stated policy of providing light duty, and it was unilaterally denied. (Defendant's Transitional Work Program, DeNardo 223-227, Exhibit F to the Motion.) Along those lines, we have heard that West Hills Hospital has provided light duty to Department of Imaging employees: 1) Cheri Van; 2) George Ramirez; 3) Vahid Hakkakzadeh; and 4) Neta Patel, but they have not verified that. As such, Request Nos. 6-9 seek documentation verifying these accommodations. This information is required for Plaintiff to move forward with the case. In fact, it is the employee's burden to prove available accommodations. The Plaintiff must use discovery to identify possible available accommodations. (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1019 ["In litigation, the employee has discovery tools available to learn what accommodations might have been discussed during the interactive process."]; See also Nadaf- Rahrov v. Neiman Marcus Grp., Inc. (2008) 166 Cal. App. 4th 952, 977; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 ["As long as a reasonable accommodation is available to the employer that could have plausibly enabled a handicapped employee to adequately perform his job, WSACTIVELLP:11567549.1 -0. /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES an employer is liable for failing to attempt that accommodation."]; see also Rowe v. City & County of San Francisco (N.D. Cal. 2002) 186 F.Supp.2d 1047.) Plaintiff has to show that they gave light duty to other employees, and the same opportunity was denied to her. Plaintiff has heard that from 2014-2018, West Hills Hospital has given light duty to the following employees (same department), but it has not been verified: 1) Cheri Van; 2) George Ramirez; 3) Vahid Hakkakzadeh; snd 4) Neta Patel. HOSPITAL'S OPPOSITION TO PLAINTIFF'S POSITION: Plaintiff seeks information pertaining to accommodations that were allegedly provided to another employee in the Imaging Department at Hospital from 2014-2018. However, Plaintiff previously served the same interrogatories as part of Plaintiff’s Special Interrogatories, Set Two. In that set, Plaintiff’s Special Interrogatories Nos. 5-9, Plaintiff asked for “all accommodations provided at WEST HILLS HOSPITAL from 2014-2018” and information about accommodations provided to this individual. (Choi Decl. {5, Ex. 2.) (Id.) Hospital served its responses on August 16, 2019. Hospital served its responses to Set Two on August 16, 2019. (/d.) Plaintiff cannot circumvent the procedural mechanisms set forth in the Discovery Act by propounding the same question again. Professional Career Colleges v. Superior Court (1989) 207 Cal. App.3d 490, 494. On December 19, 2019, Plaintiff filed a motion to compel with respect to Hospital's responses to Special Interrogatories, Set Two. The hearing on this motion is set for December 9, 2020. It is unclear why Plaintiff filed this Motion before the hearing regarding Set Two, however the timing of this Motion does not negate that Plaintiff has filed the same motion twice and that Hospital's properly asserted objections to this duplicative discovery. As such, this continuous request 1s an abuse of the discovery process and Plaintiff has waived her right to seek a further response. Additionally, Plaintiff’s time frame is overbroad as Mr. Crouch did not become Director of the department until November 2015. Accommodations that may have been provided during a different Director’s tenure are not probative to the issue of whether Mr. Crouch provided accommodations. WSACTIVELLP:11567549.1 -10 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Further, whether an accommodation is granted depends on that particular employee’s individual restrictions, the essential functions of his or her position, as well as other factors including whether the Hospital had the ability to reasonably accommodate the employee at that time. Therefore, documents pertaining to another employee’s accommodations, in order to have any meaning, would require the employee to be performing the same position as Plaintiff and require the same type of accommodations at the same time. Absent these conditions, disclosure of other employees’ confidential medical information results in nothing more than an unnecessary invasion of their constitutional privacy rights. This request is also overbroad as it seeks information that goes beyond the relevant time frame related to Plaintiff. Specifically, Plaintiff was subject to restrictions starting on August 29, 2017 and was terminated in February 2018. Even if other employees were provided a reasonable accommodation at other time periods, this does not mean that any such accommodations were available during the time that Plaintiff was under restrictions. At the IDC, this Court provided guidance that Plaintiff’s requested time frame was overbroad and that the scope of these requests to Plaintiff’s unit should be limited to a one year time frame (i.e. March 2017 to February 2018). However, Plaintiff has refused to narrow the time period and continues to seek information within a four year time frame (2014-2018). This time frame is further inappropriate as it seeks information that predates the time that James Crouch (Plaintiff’s decisionmaker) became Director of the department (November 2015). Additionally, in arguing that such information is discoverable, Plaintiff improperly conflates light duty assignments with reasonable accommodations. A reasonable accommodation means “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” Cuiellette v. City of Los Angeles, 194 Cal. App.4th 757,766 (2011). As applied to Plaintiff, it would mean a modification or adjustment that would permit her to resume her duties as a Radiologic Technologist (“Rad Tech”). A light duty assignment is a temporary task assigned to an employee injured at work that may or may not be in their own department and does not include performance of the employee’s essential functions. There is no legal requirement for an employer to provide light duty assignments. Nealy v. City of WSACTIVELLP: 11567549.1 11 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Santa Monica, 234 Cal.App.4th 359, 375 (holding that “FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions.”) Therefore, whether or not another employee was provided a light duty assignment is not probative as to the issue of whether Hospital reasonably accommodated Plaintiff and disclosure of other employees’ confidential medical information results in nothing more than an unnecessary invasion of their constitutional privacy rights. For all of these reasons, Hospital stands by its objections and respectfully requests that the Court deny Plaintiff’s Motion as to this request. To the extent that this Court is inclined to grant Plaintiff’s Motion, Hospital requests that the scope of the discovery be limited in time and scope for the reasons set forth above. SPECIAL INTERROGATORY NO. 4: Please specify what, if any, accommodations have been granted to George Ramirez (omitting any HIP AA information). DEFENDANT'S RESPONSE TO SPECIAL INTERROGATORY NO. 4: Objection. Responding Party objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time, and the term "accommodation" so as to make responding unduly burdensome and harassing. Responding Party objects to this interrogatory on the basis that it is neither relevant to the subject lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not parties to this litigation (California Constitution Article 1, Section 1). This interrogatory has, in substance, been previously propounded in Special Interrogatories, Set Two No. 9. Continuous discovery into the same matter constitutes oppression. (Professional Career Colleges v. Superior Court (1989) 207 Cal.App.3d 490, 493- 494.) PLAINTIFF'S REASON FOR FURTHER RESPONSE: By way of background, Ms. DeNardo requested light duty for several months starting on August 29, 2017. Despite their stated policy of providing light duty, and it was unilaterally denied. (Defendant's Transitional Work Program, DeNardo 223-227, Exhibit F to the Motion.) WSACTIVELLP:11567549.1 12 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Along those lines, we have heard that West Hills Hospital has provided light duty to Department of Imaging employees: 1) Cheri Van; 2) George Ramirez; 3) Vahid Hakkakzadeh; and 4) Neta Patel, but they have not verified that. As such, Request Nos. 6-9 seek documentation verifying these accommodations. This information is required for Plaintiff to move forward with the case. In fact, it is the employee's burden to prove available accommodations. The Plaintiff must use discovery to identify possible available accommodations. (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1019 ["In litigation, the employee has discovery tools available to learn what accommodations might have been discussed during the interactive process."]; See also Nadaf- Rahrov v. Neiman Marcus Grp., Inc. (2008) 166 Cal. App. 4th 952, 977; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 ["As long as a reasonable accommodation is available to the employer that could have plausibly enabled a handicapped employee to adequately perform his job, an employer is liable for failing to attempt that accommodation."]; see also Rowe v. City & County of San Francisco (N.D. Cal. 2002) 186 F.Supp.2d 1047.) Plaintiff has to show that they gave light duty to other employees, and the same opportunity was denied to her. Plaintiff has heard that from 2014-2018, West Hills Hospital has given light duty to the following employees (same department), but it has not been verified: 1) Cheri Van; 2) George Ramirez; 3) Vahid Hakkakzadeh; and 4) Neta Patel. HOSPITAL'S OPPOSITION TO PLAINTIFF'S POSITION: Plaintiff seeks information pertaining to accommodations that were allegedly provided to another employee in the Imaging Department at Hospital from 2014-2018. However, Plaintiff previously served the same interrogatories as part of Plaintiff’s Special Interrogatories, Set Two. In that set, Plaintiff’s Special Interrogatories Nos. 5-9, Plaintiff asked for “all accommodations provided at WEST HILLS HOSPITAL from 2014-2018” and information about accommodations provided to this individual. (Choi Decl. {5, Ex. 2.) (Id.) Hospital served its responses on August 16, 2019. Hospital served its responses to Set Two on August 16, 2019. (/d.) Plaintiff cannot circumvent the procedural mechanisms set forth in the Discovery Act by propounding the same question again. Professional Career Colleges v. Superior Court (1989) 207 Cal. App.3d 490, 494. WSACTIVELLP: 11567549.1 = 13= /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES On December 19, 2019, Plaintiff filed a motion to compel with respect to Hospital's responses to Special Interrogatories, Set Two. The hearing on this motion is set for December 9, 2020. It is unclear why Plaintiff filed this Motion before the hearing regarding Set Two, however the timing of this Motion does not negate that Plaintiff has filed the same motion twice and that Hospital's properly asserted objections to this duplicative discovery. As such, this continuous request 1s an abuse of the discovery process and Plaintiff has waived her right to seek a further response. Additionally, Plaintiff’s time frame is overbroad as Mr. Crouch did not become Director of the department until November 2015. Accommodations that may have been provided during a different Director’s tenure are not probative to the issue of whether Mr. Crouch provided accommodations. Further, whether an accommodation is granted depends on that particular employee’s individual restrictions, the essential functions of his or her position, as well as other factors including whether the Hospital had the ability to reasonably accommodate the employee at that time. Therefore, documents pertaining to another employee’s accommodations, in order to have any meaning, would require the employee to be performing the same position as Plaintiff and require the same type of accommodations at the same time. Absent these conditions, disclosure of other employees’ confidential medical information results in nothing more than an unnecessary invasion of their constitutional privacy rights. This request is also overbroad as it seeks information that goes beyond the relevant time frame related to Plaintiff. Specifically, Plaintiff was subject to restrictions starting on August 29, 2017 and was terminated in February 2018. Even if other employees were provided a reasonable accommodation at other time periods, this does not mean that any such accommodations were available during the time that Plaintiff was under restrictions. At the IDC, this Court provided guidance that Plaintiff’s requested time frame was overbroad and that the scope of these requests to Plaintiff’s unit should be limited to a one year time frame (i.e. March 2017 to February 2018). However, Plaintiff has refused to narrow the time period and continues to seek information within a four year time frame (2014-2018). This time frame is further inappropriate as it seeks information WSACTIVELLP: 11567549.1 -14 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES that predates the time that James Crouch (Plaintiff’s decisionmaker) became Director of the department (November 2015). Additionally, in arguing that such information is discoverable, Plaintiff improperly conflates light duty assignments with reasonable accommodations. A reasonable accommodation means “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” Cuiellette v. City of Los Angeles, 194 Cal. App.4th 757, 766 (2011). As applied to Plaintiff, it would mean a modification or adjustment that would permit her to resume her duties as a Radiologic Technologist (“Rad Tech”). A light duty assignment is a temporary task assigned to an employee injured at work that may or may not be in their own department and does not include performance of the employee’s essential functions. There is no legal requirement for an employer to provide light duty assignments. Nealy v. City of Santa Monica, 234 Cal.App.4th 359, 375 (holding that “FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions.”) Therefore, whether or not another employee was provided a light duty assignment is not probative as to the issue of whether Hospital reasonably accommodated Plaintiff and disclosure of other employees’ confidential medical information results in nothing more than an unnecessary invasion of their constitutional privacy rights. For all of these reasons, Hospital stands by its objections and respectfully requests that the Court deny Plaintiff’s Motion as to this request. To the extent that this Court is inclined to grant Plaintiff’s Motion, Hospital requests that the scope of the discovery be limited in time and scope for the reasons set forth above. SPECIAL INTERROGATORY NO. 7: What is the rate of pay for the employee who replaced Plaintiff? DEFENDANT'S RESPONSE TO SPECIAL INTERROGATORY NO. 7: Objection. Responding Party objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time so as to make responding unduly burdensome and harassing. Responding Party objects to this interrogatory on the basis that it is neither relevant to the subject lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party WSACTIVELLP: 11567549. 1 -15 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not parties to this litigation (California Constitution Article I, Section 1). DEFENDANT'S SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 7: Objection. Responding Party objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time so as to make responding unduly burdensome and harassing. Responding Party objects to this interrogatory on the basis that it is neither relevant to the subject lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not parties to this litigation (California Constitution Article I, Section I). Subject to and without waiving said objections, Responding Party answers as follows: Responding Party will produce a copy of the wage scales for Radiology Technologists. Pursuant to Code of Civil Procedure section 2030.230, Responding Party refers to the document produced hereto as WHH- DENARDO-002115. PLAINTIFF'S REASON FOR FURTHER RESPONSE: This information has not been provided. After Mr. Crouch took over the Department of Imaging, from 2017-2018, he terminated three long-term Radiology Technologists, in very small department of less than ten Technologists: 1. Linda Sands worked for 46 years, and was fired at the age of 70. 2 Susan Denardo worked for 41 years, and was fired at the age of 63. 3. Cherie Van worked for 19 years, and was fired at the age of 54. Special Interrogatory No. 7 asks for the "rate of pay for the employee who replaced Plaintiff." We have heard, but not verified, that this employee was Iyana Villa, in her 20's. The pay of Plaintiff's replacement is directly relevant to proving age discrimination. (Govt. Code, & 12941.1 [pay discrepancies can be use [sic] to show bias in termination and is prohibited]; McCaskey v. California State Auto. Ass 'n (2010) 189 Cal.App.4th 947, 986.) WSACTIVELLP:11567549.1 -16 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Replacement by a younger worker is circumstantial evidence of age discrimination. (Hearsant v. Department of Soc. Servs. (1997) 57 Cal.App.4th 997, 1005; Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 368; See, e.g., Koster v. Trans World Airlines, Inc. (1st Cir.1999) 181 F .3 d 24, 31 [prima facie case is established where duties of 49- and 48-year-olds were partially assumed by 25-year-old]; Barber v. CSX Distribution Services (3d Cir.1995) 68 F.3d 694, 699 [eight-year difference between plaintiff and successful applicant is significant]; Healy v. New York Life Ins. Co. (3d Cir.1988) 860 F.2d 1209, 1214 [replacement of 56-year-old senior manager by person nine years younger is significant]; Douglas v. Anderson (9th Cir.1981) 656 F.2d 528, 533 [replacement of 54-year-old bookstore manager by person five years younger is significant].) HOSPITAL'S OPPOSITION TO PLAINTIFF'S POSITION: Plaintiff’s reliance on McCaskey v. California State Auto Ass’n, 189 Cal.App.4th 947, 986 (2010) is misguided. McCaskey involved changes to a commission-based compensation plan. Specifically, Plaintiffs claimed that elimination of a reduced sales goal for senior agents resulted in a disparate impact to older sales representatives. It does not stand for the proposition that discovery into a specific individual's employment is justified. Similarly, all of the other cases cited by Plaintiff pertain to the age of the subsequently hired employee, not the rate of pay. Notwithstanding this, Plaintiff’s employment was subject to a Collective Bargaining Agreement (“CBA”). The CBA governs certain terms of employment, including rates of pay. Hospital produced a copy of the wage scale (WHH-DENARDO-002115), thereby providing Plaintiff with responsive information. Because Hospital has provided sufficient responsive information, and there is no justification for seeking further discovery, this request should be denied. SPECIAL INTERROGATORY NO. 8: What is the name, date of hire, and date of birth of the employee who replaced Linda Sands? DEFENDANT'S RESPONSE TO SPECIAL INTERROGATORY NO. 8: Objection. Responding Party objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time so as to make responding unduly burdensome and harassing. Responding Party objects to this interrogatory on the basis that it is neither relevant to the subject WSACTIVELLP: 11567549. 1 “17 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Patty objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not parties to this litigation (California Constitution Article 1, Section 1). Responding Party objects to this interrogatory on the basis that it exceeds the limit in violation of Code of Civil Procedure section 2030.030. PLAINTIFF'S REASON FOR FURTHER RESPONSE: After Mr. Crouch took over the Department of Imaging, from 2017-2018, he terminated three long-term Radiology Technologists, in very small department of less than ten Technologists: 1. Linda Sands worked for 46 years, and was fired at the age of 70. 2 Susan Denardo worked for 41 years, and was fired at the age of 63. 3. Cherie Van worked for 19 years, and was fired at the age of 54. Special Interrogatory Nos. 8-10 seek Ms. Sands rate of pay and the name, date of hire, date of birth, and pay of her replacement. (Govt. Code, & 12941.1 [pay discrepancies can be use [sic] to show bias in termination and is prohibited]; McCaskey v. California State Auto. Ass'n (2010) 189 Cal.App.4th 947, 986.) Mr. Crouch testified that he thinks that Ms. Sands (70's) was replaced by Ray Caldone in his 30's. The relevance of pay was discussed above, and replacement by a younger worker is circumstantial evidence of age discrimination. (Hearsant v. Department of Soc. Servs. (1997) 57 Cal. App.4th 997, 1005; Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 368; See, e.g., Koster v. Trans World Airlines, Inc. (1st Cir.1999) 181 F.3d 24, 31 [prima facie case is established where duties of 49- and 48-year-olds were partially assumed by 25-year-old]; Barber v. CSX Distribution Services (3d Cir.1995) 68 F.3d 694, 699 [eight-year difference between plaintiff and successful applicant is significant]; Healy v. New York Life Ins. Co. (3d Cir.1988) 860 F.2d 1209, 1214 [replacement of 56-year-old senior manager by person nine years younger is significant]; Douglas v. Anderson (9th Cir.1981) 656 F.2d 528, 533 [replacement of 54-year-old bookstore manager by person five years younger is significant].) WSACTIVELLP:11567549.1 -18 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Linda Sands is a crucial witnesses to establish an intent to discriminate on the basis of age. This testimony is per se admissible under California law, which would make it readily discoverable. In Johnson v. United Cerebral Palsy, et al. (2009) 173 Cal.App.4th 740, 759-767, the California Court of Appeals upheld the admission of discriminatory experiences with the same employer, at the same facility, but with different supervisors. In that case, Plaintiff was directly supervised by Raquel Jimenez, who fired her after learning she was pregnant. The Court upheld the use of others discriminatory experiences with other supervisors at the facility including, Linda Jones, Loraine Sandgren, and plaintiff's supervisor, Jimenez. (Id. at 761-762.) As the Court stated, "[C]ourts have routinely sanctioned the use of this type of 'me too' evidence." (Id. at 760.) Clearly, discovery and admissibility are different standards. Here, Johnson holds that the evidence submitted was per se admissible. Logically, the discovery plaintiff requests would be per se discoverable if they are per se admissible. Moreover, Johnson's incorporation of specific federal cases suggests that discriminatory experiences with the same employer may be admissible irrespective of the supervisor. At page 763, in a section entitled, "Caselaw governing the declarations," the Court cited the following cases. (DH) In Obrey v. Johnson (9th Cir. 2005) 400 F.3d 691, the Court found that the following evidence was relevant and admissible evidence in establishing defendant's pattern or practice of discriminating on the basis of race: 1) a statistical report showing a correlation between race and promotion; 2) testimony of plaintiff's co-worker regarding discriminatory comments made by defendant officials; and 3) anecdotal evidence from three other co-workers who believed they had been victims of race discrimination. 2) Estes v. Dick Smith Ford, Inc. (8th Cir. 1988) 856 F.2d 1097, 1103 recognizing the importance of "me too" evidence in employment discrimination cases where, "A plaintiff's ability to prove discrimination indirectly, circumstantially, must not be crippled by evidentiary rulings that keep out probative evidence because of crabbed notions of relevance or excessive mistrust of juries." The court went on to explain WSACTIVELLP:11567549.1 -19 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES that "such background evidence may be critical for the jury's assessment of whether a given employer was more likely than not to have acted from an unlawful motive." 3) Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475, 1479 reversing trial court's exclusion of "me too" evidence in a quid pro quo sexual harassment case stating that, "It is clear that an employer's conduct tending to demonstrate hostility towards a certain group is both relevant and admissible where the employer's general hostility towards that group is the true reason behind firing an employee who is a member of that group." In Sprint/United Management Co. v. Mendelsohn (2008) 128 S.Ct. 1140, the Court framed the issue on appeal as follows: "[W]hether, in an employment discrimination action, the Federal Rules of Evidence require admission of testimony by nonparties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff." (/d. at p. 1144.) The Court held, "The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiffs circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context- specific inquiry. Rules 401 and 403 do not make such evidence per se admissible or per se inadmissible." (Id. at 1147.) Clearly, if discrimination by other supervisors towards nonparties is potentially admissible, it is discoverable. See also Pantoja v. Anton (2011) 198 Cal. App.4th 87. In Pantoja, the Court held, "Evidence that employer sexually harassed other employees outside former employee's presence and at times other than when she was employed was admissible to show that employer harbored a discriminatory intent or bias based on gender, to rebut employer's evidence, and to impeach employer's credibility, on Rimier employee's Fair Employment and Housing Act (FEHA) claims of sexual harassment and wrongful termination based on gender, where employer did not admit the issue of discriminatory intent or bias, and employer disputed it with evidence that his frequent use of profanity at a loud volume was always directed at situations rather than people, that it happened in the presence of WSACTIVELLP:11567549.1 -20 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES men as well as women, and that he never would have tolerated harassing behavior by anyone in his office." (Hn. 2.) The most recent case discussing the admissibility, and hence the discoverability, of me too evidence is Meeks v. Autozone, Inc. (2018) 24 Cal. App. 5th 855, hn. 12. This information needs to be produced and verified by the Defendant. HOSPITAL'S OPPOSITION TO PLAINTIFF'S POSITION: Under Code of Civil Procedure section 2030.050, any party that has propounded more than 35 specially prepared interrogatories must provide a declaration for additional discovery. On August 16, 2018, Plaintiff served Special Interrogatories, Set One to Hospital containing one specially prepared interrogatory. (Choi Decl. (4, Ex. 1.) On June 28, 2019, Plaintiff served Special Interrogatories, Set Two containing 15 specially prepared interrogatories. (Choi Decl. 5, Ex. 2.) On August 8, 2019, Plaintiff served Special Interrogatories, Set Three containing 12 specially prepared interrogatories. (Choi Decl. | 6, Ex. 3.) On August 21, 2019, Plaintiff served Special Interrogatories, Set Four containing 15 specially prepared interrogatories. (Choi Decl. 7, Ex. 4.) Code of Civil Procedure section 2030.030 provides “[u]nless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded.” (Code of Civ Proc. § 2030(c) [emphasis added].) As of No. 8 of Set Four, Plaintiff exceeded the allowable number, however she failed to provide the requisite declaration. Pursuant to the statute, Hospital asserted the appropriate objection and therefore is not required to respond. For these reasons, Plaintiff’s Motion as to this request must be denied. SPECIAL INTERROGATORY NO. 9: What was Linda Sands last rate of pay? DEFENDANT'S RESPONSE TO SPECIAL INTERROGATORY NO. 9: Objection. Responding Party objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time so as to make responding unduly burdensome and harassing. WSACTIVELLP: 11567549.1 221 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Responding Party objects to this interrogatory on the basis that it is neither relevant to the subject lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Patty objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not parties to this litigation (California Constitution Article 1, Section 1 ). Responding Patty objects to this interrogatory on the basis that it exceeds the limit in violation of Code of Civil Procedure section 2030.030. PLAINTIFF'S REASON FOR FURTHER RESPONSE: After Mr. Crouch took over the Department of Imaging, from 2017-2018, he terminated three long-term Radiology Technologists, in very small department of less than ten Technologists: 1. Linda Sands worked for 46 years, and was fired at the age of 70. 2, Susan Denardo worked for 41 years, and was fired at the age of 63. 3. Cherie Van worked for 19 years, and was fired at the age of 54. Special Interrogatory Nos. 8-10 seek Ms. Sands rate of pay and the name, date of hire, date of birth, and pay of her replacement. (Govt. Code, & 12941.1 [pay discrepancies can be use [sic] to show bias in termination and is prohibited]; McCaskey v. California State Auto. Ass'n (2010) 189 Cal. App.4th 947, 986.) Mr. Crouch testified that he thinks that Ms. Sands (70's) was replaced by Ray Caldone in his 30's. The relevance of pay was discussed above, and replacement by a younger worker is circumstantial evidence of age discrimination. (Hearsant v. Department of Soc. Servs. (1997) 57 Cal.App.4th 997, 1005; Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 368; See, e.g., Koster v. Trans World Airlines, Inc. (1st Cir.1999) 181 F.3d 24, 31 [prima facie case is established where duties of 49- and 48-year-olds were partially assumed by 25-year-old]; Barber v. CSX Distribution Services (3d Cir.1995) 68 F.3d 694, 699 [eight-year difference between plaintiff and successful applicant is significant]; Healy v. New York Life Ins. Co. (3d Cir.1988) 860 F.2d 1209, 1214 [replacement of 56-year-old senior manager by person nine years younger is significant]; Douglas v. Anderson (9th Cir.1981) 656 F.2d 528, 533 [replacement of 54-year-old bookstore manager by person five years younger is significant].) WSACTIVELLP:11567549.1 99. /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Linda Sands is a crucial witnesses to establish an intent to discriminate on the basis of age. This testimony is per se admissible under California law, which would make it readily discoverable. In Johnson v. United Cerebral Palsy, et al. (2009) 173 Cal.App.4th 740, 759-767, the California Court of Appeals upheld the admission of discriminatory experiences with the same employer, at the same facility, but with different supervisors. In that case, Plaintiff was directly supervised by Raquel Jimenez, who fired her after learning she was pregnant. The Court upheld the use of others discriminatory experiences with other supervisors at the facility including, Linda Jones, Loraine Sandgren, and plaintiff's supervisor, Jimenez. (Id. at 761-762.) As the Court stated, "[C]ourts have routinely sanctioned the use of this type of 'me too' evidence." (Id. at 760.) Clearly, discovery and admissibility are different standards. Here, Johnson holds that the evidence submitted was per se admissible. Logically, the discovery plaintiff requests would be per se discoverable if they are per se admissible. Moreover, Johnson's incorporation of specific federal cases suggests that discriminatory experiences with the same employer may be admissible irrespective of the supervisor. At page 763, in a section entitled, "Caselaw governing the declarations," the Court cited the following cases. (DH) In Obrey v. Johnson (9th Cir. 2005) 400 F.3d 691, the Court found that the following evidence was relevant and admissible evidence in establishing defendant's pattern or practice of discriminating on the basis of race: 1) a statistical report showing a correlation between race and promotion; 2) testimony of plaintiff's co-worker regarding discriminatory comments made by defendant officials; and 3) anecdotal evidence from three other co-workers who believed they had been victims of race discrimination. 2) Estes v. Dick Smith Ford, Inc. (8th Cir. 1988) 856 F.2d 1097, 1103 recognizing the importance of "me too" evidence in employment discrimination cases where, "A plaintiff's ability to prove discrimination indirectly, circumstantially, must not be crippled by evidentiary rulings that keep out probative evidence because of crabbed notions of relevance or excessive mistrust of juries." The court went on to explain WSACTIVELLP:11567549.1 = 23 /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES that "such background evidence may be critical for the jury's assessment of whether a given employer was more likely than not to have acted from an unlawful motive." 3) Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475, 1479 reversing trial court's exclusion of "me too" evidence in a quid pro quo sexual harassment case stating that, "It is clear that an employer's conduct tending to demonstrate hostility towards a certain group is both relevant and admissible where the employer's general hostility towards that group is the true reason behind firing an employee who is a member of that group." In Sprint/United Management Co. v. Mendelsohn (2008) 128 S.Ct. 1140, the Court framed the issue on appeal as follows: "[W]hether, in an employment discrimination action, the Federal Rules of Evidence require admission of testimony by nonparties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff." (/d. at p. 1144.) The Court held, "The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiffs circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context- specific inquiry. Rules 401 and 403 do not make such evidence per se admissible or per se inadmissible." (Id. at 1147.) Clearly, if discrimination by other supervisors towards nonparties is potentially admissible, it is discoverable. See also Pantoja v. Anton (2011) 198 Cal. App.4th 87. In Pantoja, the Court held, "Evidence that employer sexually harassed other employees outside former employee's presence and at times other than when she was employed was admissible to show that employer harbored a discriminatory intent or bias based on gender, to rebut employer's evidence, and to impeach employer's credibility, on Rimier employee's Fair Employment and Housing Act (FEHA) claims of sexual harassment and wrongful termination based on gender, where employer did not admit the issue of discriminatory intent or bias, and employer disputed it with evidence that his frequent use of profanity at a loud volume was always directed at situations rather than people, that it happened in the presence of WSACTIVELLP:11567549.1 -24 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES men as well as women, and that he never would have tolerated harassing behavior by anyone in his office." (Hn. 2.) The most recent case discussing the admissibility, and hence the discoverability, of me too evidence is Meeks v. Autozone, Inc. (2018) 24 Cal. App. 5th 855, hn. 12. This information needs to be produced and verified by the Defendant. HOSPITAL'S OPPOSITION TO PLAINTIFF'S POSITION: Under Code of Civil Procedure section 2030.050, any party that has propounded more than 35 specially prepared interrogatories must provide a declaration for additional discovery. On August 16, 2018, Plaintiff served Special Interrogatories, Set One to Hospital containing one specially prepared interrogatory. (Choi Decl. (4, Ex. 1.) On June 28, 2019, Plaintiff served Special Interrogatories, Set Two containing 15 specially prepared interrogatories. (Choi Decl. 5, Ex. 2.) On August 8, 2019, Plaintiff served Special Interrogatories, Set Three containing 12 specially prepared interrogatories. (Choi Decl. | 6, Ex. 3.) On August 21, 2019, Plaintiff served Special Interrogatories, Set Four containing 15 specially prepared interrogatories. (Choi Decl. 7, Ex. 4.) Code of Civil Procedure section 2030.030 provides “[u]nless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded.” (Code of Civ Proc. § 2030(c) [emphasis added].) As of No. 8 of Set Four, Plaintiff exceeded the allowable number, however she failed to provide the requisite declaration. Pursuant to the statute, Hospital asserted the appropriate objection and therefore is not required to respond. Additionally, as noted above with respect to No. 7, Plaintiff’s reliance on McCaskey v. California State Auto Ass’n, 189 Cal.App.4th 947, 986 (2010) is misguided. McCaskey involved changes to a commission-based compensation plan. Specifically, Plaintiffs claimed that elimination of a reduced sales goal for senior agents resulted in a disparate impact to older sales representatives. It does not stand for the proposition that discovery into a specific individual's WSACTIVELLP:11567549.1 = 95 /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES employment is justified. Similarly, all of the other cases cited by Plaintiff pertain to the age of the subsequently hired employee, not the rate of pay. Notwithstanding this, Plaintiff’s employment was subject to a Collective Bargaining Agreement (“CBA”). The CBA governs certain terms of employment, including rates of pay. Hospital produced a copy of the wage scale (WHH-DENARDO-002115), thereby providing Plaintiff with responsive information. For these reasons, Plaintiff’s Motion as to this request must be denied. SPECIAL INTERROGATORY NO. 10: What is the rate of pay for the employee who replaced Linda Sands? DEFENDANT'S RESPONSE TO SPECIAL INTERROGATORY NO. 10: Objection. Responding Patty objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time so as to make responding unduly burdensome and harassing. Responding Patty objects to this interrogatory on the basis that it is neither relevant to the subject lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not parties to this litigation (California Constitution Article 1, Section 1). Responding Party objects to this interrogatory on the basis that it exceeds the limit in violation of Code of Civil Procedure section 2030.030. PLAINTIFF'S REASON FOR FURTHER RESPONSE: After Mr. Crouch took over the Department of Imaging, from 2017-2018, he terminated three long-term Radiology Technologists, in very small department of less than ten Technologists: 1. Linda Sands worked for 46 years, and was fired at the age of 70. 2, Susan Denardo worked for 41 years, and was fired at the age of 63. 3. Cherie Van worked for 19 years, and was fired at the age of 54. Special Interrogatory Nos. 8-10 seek Ms. Sands rate of pay and the name, date of hire, date of birth, and pay of her replacement. (Govt. Code, & 12941.1 [pay discrepancies can be use [sic] WSACTIVELLP:11567549.1 -26 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES to show bias in termination and is prohibited]; McCaskey v. California State Auto. Ass'n (2010) 189 Cal.App.4th 947, 986.) Mr. Crouch testified that he thinks that Ms. Sands (70's) was replaced by Ray Caldone in his 30's. The relevance of pay was discussed above, and replacement by a younger worker is circumstantial evidence of age discrimination. (Hearsant v. Department of Soc. Servs. (1997) 57 Cal. App.4th 997, 1005; Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 368; See, e.g., Koster v. Trans World Airlines, Inc. (1st Cir.1999) 181 F.3 d 24, 31 [prima facie case is established where duties of 49- and 48-year-olds were partially assumed by 25-year-old]; Barber v. CSX Distribution Services (3d Cir.1995) 68 F.3d 694, 699 [eight-year difference between plaintiff and successful applicant is significant]; Healy v. New York Life Ins. Co. (3d Cir.1988) 860 F.2d 1209, 1214 [replacement of 56-year-old senior manager by person nine years younger is significant]; Douglas v. Anderson (9th Cir.1981) 656 F.2d 528, 533 [replacement of 54-year-old bookstore manager by person five years younger is significant].) Linda Sands is a crucial witnesses to establish an intent to discriminate on the basis of age. This testimony is per se admissible under California law, which would make it readily discoverable. In Johnson v. United Cerebral Palsy, et al. (2009) 173 Cal.App.4th 740, 759-767, the California Court of Appeals upheld the admission of discriminatory experiences with the same employer, at the same facility, but with different supervisors. In that case, Plaintiff was directly supervised by Raquel Jimenez, who fired her after learning she was pregnant. The Court upheld the use of others discriminatory experiences with other supervisors at the facility including, Linda Jones, Loraine Sandgren, and plaintiff's supervisor, Jimenez. (Id. at 761-762.) As the Court stated, "[C]ourts have routinely sanctioned the use of this type of 'me too' evidence." (/d. at 760.) Clearly, discovery and admissibility are different standards. Here, Johnson holds that the evidence submitted was per se admissible. Logically, the discovery plaintiff requests would be per se discoverable if they are per se admissible. Moreover, Johnson's incorporation of specific federal cases suggests that discriminatory experiences with the same employer may be admissible irrespective of the supervisor. At page 763, in a section entitled, "Caselaw governing the declarations," the Court cited the following cases. WSACTIVELLP: 11567549.1 =O /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES (1) In Obrey v. Johnson (9th Cir. 2005) 400 F.3d 691, the Court found that the following evidence was relevant and admissible evidence in establishing defendant's pattern or practice of discriminating on the basis of race: 1) a statistical report showing a correlation between race and promotion; 2) testimony of plaintiff's co-worker regarding discriminatory comments made by defendant officials; and 3) anecdotal evidence from three other co-workers who believed they had been victims of race discrimination. 2) Estes v. Dick Smith Ford, Inc. (8th Cir. 1988) 856 F.2d 1097, 1103 recognizing the importance of "me too" evidence in employment discrimination cases where, "A plaintiff's ability to prove discrimination indirectly, circumstantially, must not be crippled by evidentiary rulings that keep out probative evidence because of crabbed notions of relevance or excessive mistrust of juries." The court went on to explain that "such background evidence may be critical for the jury's assessment of whether a given employer was more likely than not to have acted from an unlawful motive." 3) Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475, 1479 reversing trial court's exclusion of "me too" evidence in a quid pro quo sexual harassment case stating that, "It is clear that an employer's conduct tending to demonstrate hostility towards a certain group is both relevant and admissible where the employer's general hostility towards that group is the true reason behind firing an employee who is a member of that group." In Sprint/United Management Co. v. Mendelsohn (2008) 128 S.Ct. 1140, the Court framed the issue on appeal as follows: "[W]hether, in an employment discrimination action, the Federal Rules of Evidence require admission of testimony by nonparties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff." (/d. at p. 1144.) The Court held, "The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiffs circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context- WSACTIVELLP: 11567549.1 - HR - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES specific inquiry. Rules 401 and 403 do not make such evidence per se admissible or per se inadmissible." (Id. at 1147.) Clearly, if discrimination by other supervisors towards nonparties is potentially admissible, it is discoverable. See also Pantoja v. Anton (2011) 198 Cal. App.4th 87. In Pantoja, the Court held, "Evidence that employer sexually harassed other employees outside former employee's presence and at times other than when she was employed was admissible to show that employer harbored a discriminatory intent or bias based on gender, to rebut employer's evidence, and to impeach employer's credibility, on Rimier employee's Fair Employment and Housing Act (FEHA) claims of sexual harassment and wrongful termination based on gender, where employer did not admit the issue of discriminatory intent or bias, and employer disputed it with evidence that his frequent use of profanity at a loud volume was always directed at situations rather than people, that it happened in the presence of men as well as women, and that he never would have tolerated harassing behavior by anyone in his office." (Hn. 2.) The most recent case discussing the admissibility, and hence the discoverability, of me too evidence is Meeks v. Autozone, Inc. (2018) 24 Cal. App. 5th 855, hn. 12. This information needs to be produced and verified by the Defendant. HOSPITAL'S OPPOSITION TO PLAINTIFF'S POSITION: Under Code of Civil Procedure section 2030.050, any party that has propounded more than 35 specially prepared interrogatories must provide a declaration for additional discovery. On August 16, 2018, Plaintiff served Special Interrogatories, Set One to Hospital containing one specially prepared interrogatory. (Choi Decl. 4, Ex. 1.) On June 28, 2019, Plaintiff served Special Interrogatories, Set Two containing 15 specially prepared interrogatories. (Choi Decl. 5, Ex. 2.) On August 8, 2019, Plaintiff served Special Interrogatories, Set Three containing 12 specially prepared interrogatories. (Choi Decl. | 6, Ex. 3.) On August 21, 2019, Plaintiff served Special Interrogatories, Set Four containing 15 specially prepared interrogatories. (Choi Decl. 7, Ex. 4.) Code of Civil Procedure section 2030.030 provides “[u]nless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared WSACTIVELLP:11567549.1 -207 /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded.” (Code of Civ Proc. § 2030(c) [emphasis added].) As of No. 8 of Set Four, Plaintiff exceeded the allowable number, however she failed to provide the requisite declaration. Pursuant to the statute, Hospital asserted the appropriate objection and therefore is not required to respond. Additionally, as noted above with respect to No. 7, Plaintiff’s reliance on McCaskey v. California State Auto Ass’n, 189 Cal.App.4th 947, 986 (2010) is misguided. McCaskey involved changes to a commission-based compensation plan. Specifically, Plaintiffs claimed that elimination of a reduced sales goal for senior agents resulted in a disparate impact to older sales representatives. It does not stand for the proposition that discovery into a specific individual's employment is justified. Similarly, all of the other cases cited by Plaintiff pertain to the age of the subsequently hired employee, not the rate of pay. Notwithstanding this, Plaintiff’s employment was subject to a Collective Bargaining Agreement (“CBA”). The CBA governs certain terms of employment, including rates of pay. Hospital produced a copy of the wage scale (WHH-DENARDO-002115), thereby providing Plaintiff with responsive information. For these reasons, Plaintiff’s Motion as to this request must be denied. SPECIAL INTERROGATORY NO. 11: What is the name, date of hire, and date of birth of the employee who replaced Cherie Van? DEFENDANT'S RESPONSE TO SPECIAL INTERROGATORY NO. 11: Objection. Responding Party objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time so as to make responding unduly burdensome and harassing. Responding Party objects to this interrogatory on the basis that it is neither relevant to the subject lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not parties to this litigation (California Constitution Article 1, Section 1). Responding Party objects to this interrogatory on the basis that it exceeds the limit in violation of Code of Civil Procedure section 2030.030. WSACTIVELLP:11567549.1 - 30 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES PLAINTIFF'S REASON FOR FURTHER RESPONSE: Special Interrogatories Nos. 11-13 ask the same questions pertaining to Cheri Van. Mr. Plummer testified that he thinks she was replaced by "Manuk V." in his mid-30's. Again, we are seeking to verify this information. There is no legitimate excuse to withhold this crucial information. HOSPITAL'S OPPOSITION TO PLAINTIFF'S POSITION: Under Code of Civil Procedure section 2030.050, any party that has propounded more than 35 specially prepared interrogatories must provide a declaration for additional discovery. On August 16, 2018, Plaintiff served Special Interrogatories, Set One to Hospital containing one specially prepared interrogatory. (Choi Decl. (4, Ex. 1.) On June 28, 2019, Plaintiff served Special Interrogatories, Set Two containing 15 specially prepared interrogatories. (Choi Decl. 5, Ex. 2.) On August 8, 2019, Plaintiff served Special Interrogatories, Set Three containing 12 specially prepared interrogatories. (Choi Decl. | 6, Ex. 3.) On August 21, 2019, Plaintiff served Special Interrogatories, Set Four containing 15 specially prepared interrogatories. (Choi Decl. 7, Ex. 4.) Code of Civil Procedure section 2030.030 provides “[u]nless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded.” (Code of Civ Proc. § 2030(c) [emphasis added].) As of No. 8 of Set Four, Plaintiff exceeded the allowable number, however she failed to provide the requisite declaration. Pursuant to the statute, Hospital asserted the appropriate objection and therefore is not required to respond. For these reasons, Plaintiff’s Motion as to this request must be denied. SPECIAL INTERROGATORY NO. 12: What was Cherie Van's last rate of pay? DEFENDANT'S RESPONSE TO SPECIAL INTERROGATORY NO. 12: Objection. Responding Patty objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time so as to make responding unduly burdensome and harassing. WSACTIVELLP: 11567549.1 -31- /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Responding Party objects to this interrogatory on the basis that it is neither relevant to the subject lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Patty objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not parties to this litigation (California Constitution Article 1, Section 1 ). Responding Party objects to this interrogatory on the basis that it exceeds the limit in violation of Code of Civil Procedure section 2030.030. PLAINTIFF'S REASON FOR FURTHER RESPONSE: Special Interrogatories Nos. 11-13 ask the same questions pertaining to Cheri Van. Mr. Plummer testified that he thinks she was replaced by "Manuk V." in his mid-30's. Again, we are seeking to verify this information. There is no legitimate excuse to withhold this crucial information. HOSPITAL'S OPPOSITION TO PLAINTIFF'S POSITION: Under Code of Civil Procedure section 2030.050, any party that has propounded more than 35 specially prepared interrogatories must provide a declaration for additional discovery. On August 16, 2018, Plaintiff served Special Interrogatories, Set One to Hospital containing one specially prepared interrogatory. (Choi Decl. (4, Ex. 1.) On June 28, 2019, Plaintiff served Special Interrogatories, Set Two containing 15 specially prepared interrogatories. (Choi Decl. 5, Ex. 2.) On August 8, 2019, Plaintiff served Special Interrogatories, Set Three containing 12 specially prepared interrogatories. (Choi Decl. | 6, Ex. 3.) On August 21, 2019, Plaintiff served Special Interrogatories, Set Four containing 15 specially prepared interrogatories. (Choi Decl. 7, Ex. 4.) Code of Civil Procedure section 2030.030 provides “[u]nless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded.” (Code of Civ Proc. § 2030(c) [emphasis added].) As of No. 8 of Set Four, Plaintiff exceeded the allowable number, however she failed to provide the requisite declaration. Pursuant to the statute, Hospital asserted the appropriate objection and therefore is not required to respond. WSACTIVELLP: 11567549.1 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Additionally, as noted above with respect to No. 7, Plaintiff’s reliance on McCaskey v. California State Auto Ass’n, 189 Cal.App.4th 947, 986 (2010) is misguided. McCaskey involved changes to a commission-based compensation plan. Specifically, Plaintiffs claimed that elimination of a reduced sales goal for senior agents resulted in a disparate impact to older sales representatives. It does not stand for the proposition that discovery into a specific individual's employment is justified. Similarly, all of the other cases cited by Plaintiff pertain to the age of the subsequently hired employee, not the rate of pay. Notwithstanding this, Plaintiff’s employment was subject to a Collective Bargaining Agreement (“CBA”). The CBA governs certain terms of employment, including rates of pay. Hospital produced a copy of the wage scale (WHH-DENARDO-002115), thereby providing Plaintiff with responsive information. For these reasons, Plaintiff’s Motion as to this request must be denied. SPECIAL INTERROGATORY NO. 13: What is the rate of pay for the employee who replaced Cherie Van? DEFENDANT'S RESPONSE TO SPECIAL INTERROGATORY NO. 13: Objection. Responding Party objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time so as to make responding unduly burdensome and harassing. Responding Party objects to this interrogatory on the basis that it is neither relevant to the subject lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not parties to this litigation (California Constitution Article 1, Section 1 ). Responding Party objects to this interrogatory on the basis that it exceeds the limit in violation of Code of Civil Procedure section 2030.030. PLAINTIFF'S REASON FOR FURTHER RESPONSE: Special Interrogatories Nos. 11-13 ask the same questions pertaining to Cheri Van. Mr. Plummer testified that he thinks she was replaced by "Manuk V." in his mid-30's. Again, we are seeking to verify this information. There is no legitimate excuse to withhold this crucial information. WSACTIVELLP: 11567549.1 -33 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES HOSPITAL'S OPPOSITION TO PLAINTIFF'S POSITION: Under Code of Civil Procedure section 2030.050, any party that has propounded more than 35 specially prepared interrogatories must provide a declaration for additional discovery. On August 16, 2018, Plaintiff served Special Interrogatories, Set One to Hospital containing one specially prepared interrogatory. (Choi Decl. 4, Ex. 1.) On June 28, 2019, Plaintiff served Special Interrogatories, Set Two containing 15 specially prepared interrogatories. (Choi Decl. 5, Ex. 2.) On August 8, 2019, Plaintiff served Special Interrogatories, Set Three containing 12 specially prepared interrogatories. (Choi Decl. | 6, Ex. 3.) On August 21, 2019, Plaintiff served Special Interrogatories, Set Four containing 15 specially prepared interrogatories. (Choi Decl. 7, Ex. 4.) Code of Civil Procedure section 2030.030 provides “[u]nless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded.” (Code of Civ Proc. § 2030(c) [emphasis added].) As of No. 8 of Set Four, Plaintiff exceeded the allowable number, however she failed to provide the requisite declaration. Pursuant to the statute, Hospital asserted the appropriate objection and therefore is not required to respond. Additionally, as noted above with respect to No. 7, Plaintiff’s reliance on McCaskey v. California State Auto Ass’n, 189 Cal.App.4th 947, 986 (2010) is misguided. McCaskey involved changes to a commission-based compensation plan. Specifically, Plaintiffs claimed that elimination of a reduced sales goal for senior agents resulted in a disparate impact to older sales representatives. It does not stand for the proposition that discovery into a specific individual's employment is justified. Similarly, all of the other cases cited by Plaintiff pertain to the age of the subsequently hired employee, not the rate of pay. Notwithstanding this, Plaintiff’s employment was subject to a Collective Bargaining Agreement (“CBA”). The CBA governs certain terms of employment, including rates of pay. Hospital produced a copy of the wage scale (WHH-DENARDO-002115), thereby providing Plaintiff with responsive information. WSACTIVELLP: 11567549.1 -34 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES For these reasons, Plaintiff’s Motion as to this request must be denied. SPECIAL INTERROGATORY NO. 14: State the name, date of hire, and date of birth of all employees hired as full-time radiology technicians from 2017 to the present. DEFENDANT'S RESPONSE TO SPECIAL INTERROGATORY NO. 14: Objection. Responding Party objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time so as to make responding unduly burdensome and harassing. Responding Party objects to this interrogatory on the basis that it is neither relevant to the subject lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not parties to this litigation (California Constitution Article 1, Section 1). Responding Party objects to this interrogatory on the basis that it exceeds the limit in violation of Code of Civil Procedure section 2030.030. PLAINTIFF'S REASON FOR FURTHER RESPONSE: Special Interrogatory No. 14 seeks to find out who was hired as Radiology Technicians from 2017-2018. This will bear on the identity of the replacements stated above. It will tell us who was hired, and who specifically replaced whom after their respective terminations. HOSPITAL'S OPPOSITION TO PLAINTIFF'S POSITION: Under Code of Civil Procedure section 2030.050, any party that has propounded more than 35 specially prepared interrogatories must provide a declaration for additional discovery. On August 16, 2018, Plaintiff served Special Interrogatories, Set One to Hospital containing one specially prepared interrogatory. (Choi Decl. (4, Ex. 1.) On June 28, 2019, Plaintiff served Special Interrogatories, Set Two containing 15 specially prepared interrogatories. (Choi Decl. 5, Ex. 2.) On August 8, 2019, Plaintiff served Special Interrogatories, Set Three containing 12 specially prepared interrogatories. (Choi Decl. | 6, Ex. 3.) On August 21, 2019, Plaintiff served Special Interrogatories, Set Four containing 15 specially prepared interrogatories. (Choi Decl. 7, Ex. 4.) WSACTIVELLP:11567549.1 -35- /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Code of Civil Procedure section 2030.030 provides “[u]nless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded.” (Code of Civ Proc. § 2030(c) [emphasis added].) As of No. 8 of Set Four, Plaintiff exceeded the allowable number, however she failed to provide the requisite declaration. Pursuant to the statute, Hospital asserted the appropriate objection and therefore is not required to respond. For these reasons, Plaintiff’s Motion as to this request must be denied. SPECIAL INTERROGATORY NO. 15: Please identify by name of employee, light duty job title, and duties all light duty jobs given to employees from 2014-2018 at West Hills Hospital. DEFENDANT'S RESPONSE TO SPECIAL INTERROGATORY NO. 15: Objection. Responding Party objects to this interrogatory on the basis it is vague, overbroad, and ambiguous as to scope and time, and the term "light duty" so as to make responding unduly burdensome and harassing. Responding Party objects to this interrogatory on the basis that it is neither relevant to the subject lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this interrogatory on the basis that it violates the constitutional right to privacy of third parties who are not parties to this litigation (California Constitution Article 1, Section 1). Responding Party objects to this interrogatory on the basis that it exceeds the limit in violation of Code of Civil Procedure section 2030.030. PLAINTIFF'S REASON FOR FURTHER RESPONSE: Special Interrogatory No. 15 seeks the titles and duties of light duty jobs given to employees at West Hills Hospital. Again, the caselaw cited above evidences that Plaintiff has to prove the availability of such accommodations. HOSPITAL'S OPPOSITION TO PLAINTIFF'S POSITION: Under Code of Civil Procedure section 2030.050, any party that has propounded more than 35 specially prepared interrogatories must provide a declaration for additional discovery. On August 16, 2018, Plaintiff served Special Interrogatories, Set One to Hospital containing one WSACTIVELLP: 11567549.1 -36 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES specially prepared interrogatory. (Choi Decl. 4, Ex. 1.) On June 28, 2019, Plaintiff served Special Interrogatories, Set Two containing 15 specially prepared interrogatories. (Choi Decl. 5, Ex. 2.) On August 8, 2019, Plaintiff served Special Interrogatories, Set Three containing 12 specially prepared interrogatories. (Choi Decl. | 6, Ex. 3.) On August 21, 2019, Plaintiff served Special Interrogatories, Set Four containing 15 specially prepared interrogatories. (Choi Decl. 7, Ex. 4.) Code of Civil Procedure section 2030.030 provides “[u]nless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded.” (Code of Civ Proc. § 2030(c) [emphasis added].) As of No. 8 of Set Four, Plaintiff exceeded the allowable number, however she failed to provide the requisite declaration. Pursuant to the statute, Hospital asserted the appropriate objection and therefore is not required to respond. Additionally, this information is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff conflates light duty with reasonable accommodation, however they are distinct concepts. A reasonable accommodation means “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” Cuiellette v. City of Los Angeles, 194 Cal. App.4th 757,766 (2011). As applied to Plaintiff, it would mean a modification or adjustment that would permit her to resume her duties as a Radiologic Technologist (“Rad Tech”). However, this request seeks information pertaining to light duty assignments - temporary tasks assigned to an employee injured at work that may or may not be in their own department and do not include performance of the employee’s essential functions. There is no legal requirement for an employer to provide light duty assignments. Nealy v. City of Santa Monica, 234 Cal. App.4th 359, 375 (holding that “FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions.”) Therefore, whether or not another employee was provided light duty is not probative as to the issue of whether Hospital reasonably accommodated Plaintiff and disclosure of other employees’ WSACTIVELLP:11567549.1 -37 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES confidential medical information results in nothing more than an unnecessary invasion of their constitutional privacy rights. This request is also overbroad as it seeks documents that go beyond the relevant time frame. Specifically, Plaintiff was subject to restrictions starting on August 29, 2017 and was terminated in February 2018. Even if other employees were provided a light duty assignment at other time periods, this does not mean that any such assignments or accommodations were available during the time that Plaintiff was under restrictions. Further, this time frame is overbroad as James Crouch did not become Director of the department until November 2015. Light duty assignments that may have been provided during a different Director’s tenure are not probative to the issue of whether Mr. Crouch provided light duty assignments. At the IDC, this Court provided guidance that Plaintiff’s requested time frame was overbroad and that the scope of these requests to Plaintiff’s unit should be limited to a one year time frame (i.e. March 2017 to February 2018). However, Plaintiff has refused to narrow the time period and continues to seek documents within a four year time frame (2014-2018). This request also violates the right of privacy of third parties as it seeks confidential health information pertaining to third party employees. At the Informal Discovery Conference (“IDC”) held on November 25, 2019, this Court provided guidance that documents of third parties such as employee medical or personnel files would not be discoverable. (Choi Decl. 8.) For these reasons, Plaintiff’s Motion as to this request must be denied. Dated: July 1, 2020 Respectfully submitted, FORD & HARRISON LLP By: Allison V. Saunders Jenny S. Choi Angela S. Fontana Attorneys for Defendants WEST HILLS HOSPITAL and HCA HUMAN RESOURCES, LLC (DOE 1) WSACTIVELLP:11567549.1 -38 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES PROOF OF SERVICE I, Mary Garner, declare: I am a citizen of the United States and employed in Los Angeles County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 350 South Grand Avenue, Suite 2300, Los Angeles, California 90071. On July 1, 2020, I served a copy of the within document(s): DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORY (SET FOUR) [] by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. [] by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California addressed as set forth below. 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 U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. 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. [] by placing the document(s) listed above in a sealed FedEx Overnight envelope and affixing a pre-paid air bill, and causing the envelope to be delivered to a FedEx agent for delivery. [] by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. by e-mail or electronic transmission. Based on an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent on the date shown below to the e-mail addresses of the persons listed below. My email address is mgarner @fordharrison.com. I did not receive within a reasonable time after the transmission any electronic message or other indication that the transmission was unsuccessful. [x] [SEE ATTACHED SERVICE LIST] I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on July 1, 2020, at Los Angeles, California. ~~ £1 Fz =~ a Ae < Fees § Mary Garner WSACTIVELLP:11567549.1 /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORD & HARRISON LLP ATTORNEYS AT LAW LOS ANGELES Susan M. DeNardo v. West Hills Hospital, et al. LASC Case No. BC714017 SERVICE LIST Attorneys for Plaintiff: Jeffrey A. Rager James Y. Yoon Ashley Garay-Bowman The Rager Law Firm 2321 Rosecrans, Suite 4255 El Segundo, CA 90245 Telephone: ~~ 310-527-6994 Facsimile: 310-527-6800 Email: jeff @ragerlawoffices.com james @ragerlawoffices.com ashley @ragerlawoffices.com alana@ragerlawoffices.com Melanie Savarese Savarese Law Firm 37 W. Sierra Madre Blvd. Sierra Madre, CA 91024 Telephone: 626-355-3264 Facsimile: 626-355-3491 Email: melanie @savareselawfirm.com Counsel Pro Hac Vice for Defendant HCA Healthcare, Inc.: George A. Shannon, Jr. Megan D. Richardson Carlos A. Mattioli Shannon, Martin, Finkelstein, Alvarado & Dunne, P.C. 1001 McKinney Street, Suite 1100 Houston, TX 77002 Telephone: 713-646-5500 Facsimile: 713-752-0337 Email: gshannon@smfadlaw.com mrichardson @smfadlaw.com cmattioli @smfadlaw.com WSACTIVELLP:11567549.1 -40 - /CASE No. BC714017 DEFENDANT WEST HILLS HOSPITAL'S RESPONSE TO SEPARATE STATEMENT ISO PLAINTIFF'S MOTION TO COMPEL RE: SPECIAL INTERROGATORY, SET FOUR
