Carolyn Medina v. Southern California Permanente Medical Group et al

NOTICE OF MOTION AND MOTION for Summary Judgment as to First Amended Complaint Docket 13

C.D. Cal.May 30, 2017

4851-8619-7577.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT MICHAEL LINDSAY (SBN 110845) mlindsay@nixonpeabody.com ALICIA C. ANDERSON (SBN 260937) aanderson@nixonpeabody.com IRENE SCHOLL-TATEVOSYAN (SBN 301568) itatevosyan@nixonpeabody.com NIXON PEABODY LLP 300 S. Grand Avenue, Suite 4100 Los Angeles, CA 90071-3151 Tel: 213-629-6000 Fax: 213-629-6001 Attorneys for Defendants KAISER FOUNDATION HEALTH PLAN, INC., KAISER FOUNDATION HOSPITALS AND SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CAROLYN MEDINA, an individual, Plaintiff, vs. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, a partnership; KAISER FOUNDATION HOSPITALS, a corporation; KAISER FOUNDATION HEALTH PLAN, INC., a corporation; and DOES 1 through 10 inclusive, Defendants. Case No.: 2:16-CV-03109-PSG (JCx) DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION Date: July 24, 2017 Time: 1:30 p.m. Ctrm: 6A Date Action Filed: March 15, 2016 Trial Date: August 22, 2017 [Filed concurrently with Memorandum of Points and Authorities in support of Motion; Statement of Uncontroverted Facts, Declarations and Exhibits, and [Proposed] Order] TO PLAINTIFF CAROLYN MEDINA AND HER ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on July 24, 2017, at 1:30 p.m., or as soon as the matter may be heard by the Honorable Philip S. Gutierrez in Courtroom 6A of Case 2:16-cv-03109-PSG-JC Document 31 Filed 05/30/17 Page 1 of 5 Page ID #:747 4851-8619-7577.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT the above-entitled court, located at the First Street Courthouse, 350 West 1 st Street, 6 th Floor, Los Angeles, CA 90012, defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals and Southern California Permanente Medical Group (collectively, “Defendants”) will and hereby do move the Court for summary judgment or in the alternative, summary adjudication in their favor and against Plaintiff Carolyn Medina (“Plaintiff”). Defendants bring this Motion pursuant to Rule 56 of the Federal Rule of Civil Procedure on the ground that there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law on all Causes of Action in Plaintiff’s First Amended Complaint. This Motion is made following the conference of counsel pursuant to Local Rule 7-3. Counsel have been engaged in discussions regarding motions for summary judgment as early as March 30, 2017, and continuing through May 30, 2017. ISSUES TO BE DETERMINED Defendants motion for summary judgment or, alternatively, for partial summary judgment is made on the following grounds: Issue No. 1: Defendants are entitled to summary judgment and/or adjudication on Plaintiff’s First Cause of Action for wrongful termination following complaints of illegal activity, to the extent that the claim is for alleged retaliation following complaints regarding improper pay, because Plaintiff’s claim is Garmon preempted. Issue No. 2: Defendants are entitled to summary judgment and/or adjudication on Plaintiff’s First Cause of Action for wrongful termination following alleged complaints of illegal activity, to the extent that the claim is for retaliation following alleged complaints about plaintiff’s feeling that she was being discriminated against based on disability or age, because Plaintiff cannot establish a prima facie case for wrongful termination for complaining about illegal activity. Case 2:16-cv-03109-PSG-JC Document 31 Filed 05/30/17 Page 2 of 5 Page ID #:748 4851-8619-7577.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Issue No. 3: Defendants are entitled to summary judgment and/or adjudication on Plaintiff’s First Cause of Action for wrongful termination following alleged complaints of illegal activity, because Plaintiff’s employment was terminated for a legitimate, non-retaliatory, and non-pretextual reason. Issue No. 4: Defendants are entitled to summary judgment and/or adjudication on Plaintiff’s Second Cause of Action for discrimination based on age because Plaintiff’s claim is preempted by ERISA. Issue No. 5: Defendants are entitled to summary judgment and/or adjudication on Plaintiff’s Second Cause of Action for discrimination based on age because Plaintiff cannot establish a prima facie case of pure age discrimination. Issue No. 6: Defendants are entitled to summary judgment and/or adjudication on Plaintiff’s Second Cause of Action for discrimination based on age because Plaintiff’s employment was terminated for a legitimate, non-discriminatory, and non-pretextual reason. Issue No. 7: Defendants are entitled to summary judgment and/or adjudication on Plaintiff’s Third Cause of Action for discrimination based on disability because Plaintiff cannot establish a prima facie case of disability discrimination. Issue No. 8: Defendants are entitled to summary judgment and/or adjudication on Plaintiff’s Third Cause of Action for discrimination based on disability because Plaintiff’s employment was terminated for a legitimate, non- discriminatory, and non-pretextual reason. Issue No. 9: Defendants are entitled to summary judgment and/or adjudication on Plaintiff’s Fourth Cause of Action for violation of 29 U.S.C. § 1140 (ERISA) and Plaintiff’s Second Cause of Action for discrimination based on age (to the extent that this claim is preempted by ERISA) because Plaintiff cannot establish a prima facie case of violation of the Act; specifically, Plaintiff cannot establish that (1) Defendants interfered with her attainment of ERISA benefits and (2) her Case 2:16-cv-03109-PSG-JC Document 31 Filed 05/30/17 Page 3 of 5 Page ID #:749 4851-8619-7577.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT employment was terminated with the specific intent to interfere with her ERISA rights. Issue No. 10: To the extent that any of Plaintiff’s causes of action are premised on a claim of discrimination or retaliation on account of her suffering a workplace injury or filing a workers compensation claim, Defendants are entitled to summary judgment and/or adjudication on these claims because this activity is exclusively protected by California Labor Code § 132a and Plaintiff’s claim must be brought before the California Workers Compensation Appeals Board. Issue No. 11: Defendants are entitled to summary judgment and/or adjudication on Plaintiff’s Fifth Cause of Action for violation of California Labor Code §§ 201 and 203 (failure to pay all wages owed upon termination), because Plaintiff’s claim is Garmon preempted. Issue No. 12: Defendants are entitled to summary judgment and/or adjudication on Plaintiff’s Sixth Cause of Action for violation of California Labor Code § 1198.5 (failure to provide personnel file) because there is no evidence that Plaintiff was not provided with a copy of her personnel file. Issue No. 13: Defendants are entitled to summary judgment and/or adjudication on Plaintiff’s claim for punitive damages because there is no evidence that an officer, director or managing agent of Defendants personally engaged in oppressive, fraudulent or malicious conduct towards the plaintiff, /// /// /// /// /// /// /// Case 2:16-cv-03109-PSG-JC Document 31 Filed 05/30/17 Page 4 of 5 Page ID #:750 4851-8619-7577.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Dated: May 30, 2017 NIXON PEABODY LLP By:____/s/ Alicia Anderson__________ Michael Lindsay Alicia Anderson Irene Scholl-Tatevosyan Attorneys for Defendants KAISER FOUNDATION HEALTH PLAN, INC., KAISER FOUNDATION HOSPITALS AND SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP Case 2:16-cv-03109-PSG-JC Document 31 Filed 05/30/17 Page 5 of 5 Page ID #:751 MICHAEL R. LINDSAY (SBN: 110845) mlindsay@nixonpeabody.com ALICIA C. ANDERSON (SBN: 260937) acanderson@nixonpeabody.corn IRENE TATEVOSYAN (SBN: 301568) itatevosyan@nixoppeabody.com NIXON PEABODY LLP 300 S. GRAND AVE., SUITE 4100 Los ANGELES, CA 90071-3151 Tel: 213-629-6000 Fax: 213-629-6001 CAROLYN MEDINA, an individual, Plaintiff, vs. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, a partnership; KAISER FOUNDATION HOSPITALS, a corporation; KAISER FOUNDATION HEALTH PLAN, INC., a corporation; and DOES 1 through 10 inclusive, Defendants. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 2:16-CV-03109-PSG (JCx) DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Date: July 24, 2017 Time: 1:30 PM Ctrm: 6A Date Action Filed: March 15, 2016 Trial Date: August 22, 2017 Filed concurrently with Notice of Motion and Motion; Separate Statement of Uncontroverted Facts; Declarations and Exhibits] Attorneys for Defendants KAISER FOUNDATION HEALTH PLAN, INC., KAISER FOUNDATION HOSPITALS AND SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 1 of 34 Page ID #:752 TABLE OF CONTENTS I. INTRODUCTION 1 II. STATEMENT OF FACTS 3 A. Background And CBA Terms Governing Plaintiff's Evening Differential Pay And Retiree Medical Benefits 3 B. Plaintiff's Claims to Evening Differential Pay 4 C. Timecard Fraud Investigation Begins 4 D. Plaintiff's Suffers An Industrial Injury on January 21, 2015 5 E. Plaintiff Takes Stress Leave and SCPMG Delays Her Termination Until Her FMLA Leave Is Exhausted 7 F. Purported Ageist Comments At November 2014 Meeting 8 G. Personnel File Request 9 III. LEGAL ARGUMENT 9 A. Standard for Summary Judgment 9 B. Defendants are entitled to Summary Judgment of Plaintiff's First and Fifth Causes of Action Because Plaintiff's Claims are Preempted by the National Labor Relations Act 10 1. Under the Doctrine of Preemption set forth in San Diego Building & Trades Council v 10 a) Plaintiff's Fifth Cause of Action for Violations of Labor Code § 201 and 203 Are Preempted Because SCPMG's Alleged Failure to Pay Plaintiff the Evening Shift Differential Owed to Plaintiff Under the terms of a Predecessor CBA is an Unfair Labor Practice in Violation of the NLRA 11 b) Plaintiff's First Cause of Action for Wrongful Termination in Violation of Public Policy is Preempted to the Extent that it is premised on plaintiff's allegation that her employment was terminated in retaliation for complaining that she was not paid evening shift differential 13 C. Defendants Are Entitled to Summary Judgment on Plaintiff's ERISA Claims (Fourth and Second Cause of Action [Age]) Because Plaintiff Cannot Establish a Prima Facie Violation of ERISA 14 D. Defendants Are Entitled To Summary Judgment On Plaintiff's Termination Claims (First Cause of Action for Wrongful Termination in Violation of Public Policy, Second Cause of Action for Age Discrimination, and Third Cause of Action for Disability Discrimination) 16 1. Legal Analysis and Order of Proof in Discrimination, Retaliation and Wrongful Termination Cases 16 - i - DEFENDANTS'MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 2 of 34 Page ID #:753 2. Defendants Are Entitled to Summary Judgment on Plaintiff's Disability Claims Because Plaintiff Cannot Establish Disability Discrimination 17 3. Defendants Are Entitled to Summary Judgment on Plaintiff's Age Claims Because Plaintiff Cannot Establish a Prima Facie Case of Pure Age Discrimination 18 4. Defendants Are Entitled to Summary Judgment on Plaintiff's Wrongful Termination Claim Because Plaintiff Cannot Establish a Prima Facie Case of Retaliation 20 5. Even if Plaintiff Could Establish a Prima Facie Case for Any of Her Termination Claims, Plaintiff's Claims Fail Because Plaintiff's Employment Was Terminated for a Legitimate, Non-Discriminatory Reason: Timecard Fraud 21 6. Plaintiff's Termination Claims Fail Because Plaintiff Does Not Have "Specific, Substantial" Evidence That Her Termination Was Pretext For Discrimination 22 E. Defendants Are Entitled to Summary Judgment of Plaintiff's Disability Discrimination/Retaliation Claims to the Extent that Such Claims are Preempted by the California Workers Compensation Act 23 F. Defendants Are Entitled to Summary Judgment of Plaintiff's Sixth Cause of Action For Failure to Provide Personnel File Because There Is No Evidence Plaintiff Was Denied A Copy of Her Personnel File 24 G. Defendants Are Entitled to Summary Judgment of Plaintiff's Punitive Damages Claim 24 IV. CONCLUSION 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - - DEFENDANT SCPMG's MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 3 of 34 Page ID #:754 TABLE OF AUTHORITIES Page(s) FEDERAL CASES 520 S. Mich. Ave. Assocs. v. Shannon, 2008 U.S. App. LEXIS 25852 (7th Cir. Dec. 15, 2008) 11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 9 Belknap v. Hale, 463 U.S. 491 (1983) 11 Burnside v. Kiewit Pac. Corp., 491 F.3d 1053 (9th Cir. 2007) 12 Cefalu v. Holder, 2013 WL 5315079 (N.D. Cal. Sept. 23, 2013) 19 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 9, 10 Cement Masons Health & Welfare Trust Fund for N. Cal. v. Kirkwood-Bly, Inc., 520 F. Supp. 942 (N.D. Cal. 1981) 12 DFEH v. Lucent Tech., Inc., 642 F.3d 728 (9th Cir. 2011) 22 Dytrt v. Mountain State Tel. & Tel. Co., 921 F.2d 889 (9th Cir. 1990) 15 Graphic Arts Engraving Co., Inc., 197 NLRB No. 96 (1972) 13 Guyton v. Novo Nordisk, Inc., 151 F. Supp. 3d 1057, 1073 (C.D. Cal. 2015) 20 Hall v. Blue Cross/Blue Shield of Alabama, 134 F.3d 1063 (11th Cir. 1998) 14 - - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 4 of 34 Page ID #:755 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lab. Health & Welfare Trust Fund for N. Cal. v. Advanced Lightweight Concrete Co., Inc., 779 F.2d 497 (9th Cir. 1985) 12 Levy v. Verizon Info. Servs., Inc., 498 F. Supp. 2d 486 (E.D.N.Y. 2007) 13 Livadas v. Bradshaw, 512 U.S. 107 (1994) 11 Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) 9 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 15, 16 McKinney v. Am. Airlines, Inc., 641 F.Supp.2d 962 (C.D. Cal. 2009) 25 Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192 (S.D. Cal. 1998) 9 Newberry v. Pac. Racing Ass 'n, 854 F.2d 1142 (9th Cir. 1988) 12 Ngo v. Reno Hilton Resort Corp., 140 F.3d 1299 (9th Cir. 1998) 26 NLRB v. Katz, 369 U.S. 736 (1962) 12 Northfork Energy, Inc., 310 NLRB No. 44 (1993) 14 O.B. Williams Co., 252 NLRB No. 146 (1990) 14 Pattern Makers ' Pension Trust Fund v. Badger Pattern Works, Inc., 615 F. Supp. 792 (N.D. Ill. 1985) 13 Ritter v. Hughes Aircraft Co., 68 F.3d 454 (9th Cir. 1995) 15 San Diego Bldg. Trades Council v. Garmon ("Garmon"), 359 U.S. 236 (1959) passim - iv - DEFENDANT SCPMG's MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 5 of 34 Page ID #:756 1 2 3 4 5 6 7 Shane v. Greyhound Lines, Inc., 868 F.2d 1057 (9th Cir. 1989) 10 Tingey v. Pixley-Richards West, Inc., 953 F.2d 1124 (9th Cir. 1992) 14 U.S. Postal Serv., 256 NLRB No. 121 (1981) 14 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) 22 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Wis. Dep't of Indus., Labor & Human Relations v. Gould, Inc., 475 U.S. 282 (1986) 11 STATE CASES Arteaga v. Brink's, Inc., 163 Cal. App. 4th 327 (2008) 17, 18, 22 Avila v. Cont'l Airlines, Inc., 165 Cal. App. 4th 1237 (2008) 21 Brundage v. Hahn, 57 Cal. App. 4th 228 (1997) 17 College Hosp., Inc. v. Sup. Ct., 8 Ca1.4th 704 (1994) 25 Dutra v. Mercy Med. Ctr. Mt. Shasta, 209 Cal.App.4th 750 (2012) 23, 24 Green v. Ralee Eng'g Co. (1998) 19 Ca1.4th 66 20 Guz v. Bechtel Nat'l, Inc., 24 Ca1.4th 317 (2000) 16, 19 Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013) 19 Hersant v. Cal. Dept. of So. Serv., 57 Cal.App.4th 997 (1997) 17, 18, 22 28 - v - DEFENDANT SCPMG's MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 6 of 34 Page ID #:757 Hicks v. KNTV Television Inc., 160 Ca1.App.4th 994 (2008) 22, 23 Ibarbia v. Regents of the Univer. of Cal. (1987) 191 Ca1.App.3d 1318 19 Kelly—Zurian v. Wohl Shoe Co. (1994) 22 Ca1.App.4th 397 25 Levy v. Skywalker Sound, 108 Cal. App. 4th 753 (2003) 12 Loggins v. Kaiser Permanente Int I, 151 Cal. App. 4th 1102 (2007) 17 Luke v. Collotype Labels USA, Inc., 159 Cal. App. 4th 1463 (2008) 11, 14 Martin v. Lockheed Missiles & Space Co., 29 Ca1.App.4th 1718 (1994) 17, 22 McGrory v. Applied Signal Tech., Inc., 212 Cal. App. 4th 1510 (2013) 17 Mixon v. FEHC, 192 Cal. App. 3d 1306 (1987) 16 Morgan v. Regents, 88 Cal. App. 4th 52 (2000) 17, 21 Roby v. McKesson Corp. (2009) 47 Cal. 4th 686 25 Rodriquez v. Yellow Cab Cooperative, Inc., 206 Cal.App.3d 668 (1988) 11 Ruscigno v. Am. Nat'l Can Co., Inc., 84 Cal. App. 4th 112 (2000) 11 Scott v. Phoenix Sch., 175 Cal.App.4th 702 (2009) 26 Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128 (1998) 25 - vi - DEFENDANT SCPMG's MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 7 of 34 Page ID #:758 Yanowitz v. L'Oreal USA, Inc., 36 Ca1.4th 1028 (2005) 17, 20, 21 FEDERAL STATUTES 29 U.S.C. § 157 10 29 U.S.C. § 158(a)(1), (3) 11 Employee Retirement Income Security Act ("ERISA") 1 ERISA 2, 14, 15, 16 FMLA 7, 8 § 7 of the National Labor Relations Act ("NLRA") 10, 11, 13 § 7 and 8 of the National Labor Relations Act ("NLRA") 1, 10, 11 §§ 8(a)(1), 8(a)(5) and 8(d) of the National Labor Relations Act. 12 NLRA passim NLRA Preempts All State Law Claims Actually or Arguably Prohibited or Protected by the NLRA 10 § 8 of the NLRA 10, 14 § 8(a)(5) of the NLRA 12, 13 NLRA § 301 13, 12 § 510 of ERISA, 29 U.S.C. § 1140 15 STATE STATUTES Cal. Labor Code § 1198.5(b) 24 California Labor Code § 132a 23, 24 Civil Code § 3294(b) 25 Labor Code § 1198.5 24 RULES Fed. R. Civ. P. 56(a) 9, 10 - vii - DEFENDANT SCPMG's MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 8 of 34 Page ID #:759 I. INTRODUCTION Plaintiff Carolyn Medina ("Plaintiff') was employed as a Health Educator by defendant Southern California Permanente Medical Group ("SCPMG") at the Kaiser Permanente Baldwin Park Medical Center ("BPMC").1 SCPMG terminated Plaintiff's employment on May 15, 2015, because Plaintiff committed timecard fraud—an offense that SCPMG takes very seriously and that results in automatic termination upon substantiation. Specifically, SCPMG discovered that Plaintiff was leaving early on days that she had requested extra pay for an evening shift differential. SCPMG discovered five discrepancies between Plaintiff's reported time and the time that she left the facility over a period of just three months — discrepancies that ranged from forty minutes to one hour and forty-seven minutes. Plaintiff now alleges that her employment was wrongfully terminated under a number of different theories. Plaintiff has no viable legal theory supporting any cause of action. The undisputed evidence demonstrates that Plaintiff's causes of action tied to her request for evening differential pay — i.e. her claim that she was wrongfully terminated for making complaints about not being paid all wages due and that she was not paid all wages owed to her upon termination — fall squarely within the parameters of section 7 and 8 of the National Labor Relations Act ("NLRA") and are barred by the exclusive jurisdiction of the National Labor Relations Board ("NLRB") under the federal preemption doctrine set forth in San Diego Bldg. Trades Council v. Garmon ("Garmon"), 359 U.S. 236 (1959). Plaintiff additionally alleges that her termination was pretext for interference with attainment of her retiree medical benefits, an Employee Retirement Income 'Plaintiff also ppleads all of her causes of action against Kaiser Foundation Health Plan, Inc. ("KFHP") and Kaiser Foundation Hospitals ("KFH") based on a joint em foyer or single enterprise theory. (First Amended Compl. ("FAC").(Dkt. 13) ¶ 12.) Determination of whether KFHP or KFH are properly considered joint employers or whether the entities are a single enterprise is immaterial for the purposes of this Motion, as liability for KFHP or KFH rises or falls based on the finding of — or absolvin of — liability for SCPMG. KFHP and KFH join in this motion. SCPMG, KFHP, and KFH are collectively referred to as "Defendants." - 1 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 9 of 34 Page ID #:760 Security Act ("ERISA") violation, because she was terminated just 3.5 months shy of receiving these benefits. However, the undisputed facts show that this claim fails, inter alia, because there is no evidence of the specific intent necessary for proving this claim. Plaintiff further alleges that her termination was pretext for discrimination based on her age2 (disparate treatment and disparate impact), her alleged disability, and for making complaints to her employer about discrimination based on age or disability.3 But even accepting Plaintiff's version of events as true, there is no evidence supporting a prima facie case for discrimination or retaliation under any theory. There is simply no evidence supporting a pure age discrimination claim, and the undisputed facts show no evidence of disparate impact. Plaintiff's disability discrimination claim fails because the only evidence Plaintiff has to support this claim is the temporal proximity between her alleged disabilities and her termination, but her alleged disabilities occurred at least one month after the investigation into her timecard fraud had commenced. Plaintiff's claims for wrongful termination after complaining about discrimination on account of her age or disability fail because Plaintiff admits that she never made any complaints of discrimination to her employer. Additionally, Plaintiff's termination claims fail because SCPMG based its decision to terminate her employment on a legitimate, non-discriminatory, and non- retaliatory reason — timecard fraud. While Plaintiff undoubtedly argues with employer's conclusion that Plaintiff engaged in timecard fraud, there is simply no evidence of an improper motive for Plaintiff's termination. 2 To the extent that Plaintiff's age-based discrimination claim is based on ERISA violations (i.e., the employer's alleged intent to deprive her of retiree medical benefits), these state law claims are ERISA preempted. 'Plaintiff s claims for disability discrimination and wrongful termination based on complaining about disability discrimination also fail to the extent that they are based on Plaintiff's suffering an industrial injury or filing a workers compensation claim, because such claims are preempted by the California Workers Compensation Act. - 2 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 10 of 34 Page ID #:761 Accordingly, Plaintiff has no viable legal theory to which she may append her allegations.4 Defendants therefore respectfully request that the Court dismiss Plaintiff's claims and grant summary judgment and/or adjudication on all claims. II. STATEMENT OF FACTS A. Background And CBA Terms Governing Plaintiff's Evening Differential Pay And Retiree Medical Benefits Plaintiff was employed by SCPMG as a Health Educator ("Educator") at the BPMC from September 2000 to her termination on May 15, 2015. (UMFs 1-2.) She was an exempt employee paid on a salary basis. (UMF 5.) Her duties as an Educator included teaching classes for KP members regarding issues related to improved health such as nutrition, diabetes, and weight management, etc. (UMF 3.) She taught classes in English and in Spanish. (UMF 4.) Educators are unionized and belong to the Healthcare Professionals bargaining unit. (UMF 6.) The United Healthcare Workers — West, Service Employees International Union (hereinafter "SEIU") formerly represented the Healthcare Professionals bargaining unit. (UMF 7.) The collective bargaining agreement ("CBA") between SCPMG, KFH and SEIU, effective October 1, 2005, to January 31, 2012 (the "SEIU CBA"), provided that Educators were to receive a shift differential of $0.95 cents per hour for hours worked after 6:00 p.m. and before 12:00 a.m. (UMF 8-9.) The SEIU CBA also provided that eligible retirees would receive KFHP medical coverage upon retirement, which effectively amounted to full lifetime medical insurance for eligible retirees and their dependents. (UMF 11.) In or around November 2010, the Healthcare Professionals unit participated in a union decertification election, at which the National Union of Healthcare Workers ("NUHW") was elected as bargaining representative, displacing SEIU. (UMF 12.) After the NUHW election, under controlling law, the terms of the SEIU 4 Plaintiffs final cause of action for failure to provide her personnel file upon request fails because there is no evidence that SCPMG failed to provide this file. - 3 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 11 of 34 Page ID #:762 CBA remained in effect as part of the status quo until August 1, 2014, when SCPMG and KFH unilaterally implemented certain changes to the status quo as set forth in an earlier last, best, and final offer. (UMF 15.) The unilateral implementation did not alter the status quo as to the evening shift differential, but it did change retiree medical benefits. (UMF 16-17.) Under the unilateral implementation, the retiree medical benefit plan for eligible retirees who retired on or after January 1, 2016, was changed to a Kaiser Permanente Senior Advantage Plan ("KPSAP"). (UMF 18.) KPSAP is a Medicare supplement plan that is available to the public. (UMF 19.) Eventually, Kaiser and NUHW agreed to a full and comprehensive CBA in late 2015 ("NUHW CBA"). (UMF 20.) The NUHW CBA continued the change in retiree medical benefits to a KPSAP, but extended the change by one year for employees who retired on or after January 1, 2017. (UMF 21.) To be eligible for retiree medical benefits under the SEIU CBA, the NUHW unilateral implementation, or the NUHW CBA, Plaintiff needed 15 or more years of service. (UMF 22.) Under any benefit plan, a year of service was defined as 1,000 compensated hours. (UMF 23.) B. Plaintiff's Claims to Evening Differential Pay In July 2014, Plaintiff contacted her immediate supervisor, Wendy Sasser ("Sasser"), the Manager of Education Services, claiming that she had not been paid for all evening differential pay she had worked. (UMF 24-27.) After her request, Plaintiff received a paycheck for some amount of evening differential backpay. (UMF 28.) C. Timecard Fraud Investigation Begins Sheryl Sack ("Sack"), the Assistant Medical Group Administrator at the BPMC and Sasser's supervisor at the time, contacted Sasser and relayed that she had received information from an employee who used to carpool with Plaintiff that indicated Plaintiff would sometimes leave work early. (UMF 35-37.) Sack told - 4 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 12 of 34 Page ID #:763 Sasser that Sasser should look into whether Plaintiff was claiming an evening shift differential on any days that Plaintiff left work early. (UMF 38.) Sasser went on medical leave shortly after Sack asked her to investigate Plaintiff's evening differential pay, and therefore could not begin the investigation until she returned in December 2014. (UMF 39) After she returned from leave, Sasser contacted Arlene Zepeda ("Zepeda"), a Senior Human Resources Consultant for SCPMG, on December 17, 2014, and requested assistance with the investigation. (UMF 41.) Sasser requested parking garage swipe data to compare against the evening differential Plaintiff reported on her timecards, but was only able to obtain three months of swipe data because security only maintained three months of records. (UMF 42-43.) In comparing the garage badge swipe data to Plaintiff's time records, Sasser found over 5 discrepancies between when Plaintiff claimed she left work and her garage swipe exit time. (UMF 44.) Sasser also requested and obtained video footage of Plaintiff swiping out of the parking garage exit, which showed Plaintiff exiting the garage earlier than her reported evening differential time, and video footage of Plaintiff leaving the facility around the time indicated on her garage swipe, which showed Plaintiff exiting the facility with her belongings in 4 instances. (UMF 45-48.) Sasser and Zepeda believed that the individual in the garage and facility footage was Plaintiff. (UMF 49.) On January 8, 2015, Sasser informed Zepeda that she had verified Plaintiff's early departure on days she requested to be paid an evening differential and was ready to set up an investigation meeting with Plaintiff and her union representative. (UMF 51.) Zepeda recommended that they meet to develop a questionnaire for use at the investigation meeting. (UMF 55.) D. Plaintiff's Suffers An Industrial Injury on January 21, 2015 On January 21, 2015, Plaintiff suffered a workplace injury from a fall, for which she filed a workers' compensation claim. (UMF 56-57.) She was placed off - 5 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 13 of 34 Page ID #:764 work from January 21-22, and was thereafter placed on modified activity from January 23 to February 19, with sitting only, no lifting, pulling, or pushing restrictions. (UMF 58-59.) Her leave was granted and her restrictions were accommodated: she was allowed to teach classes sitting and various individuals, including Sasser, carried her belongings and materials for her. (UMF 60.) E. Timecard Investigation Meeting And Decision to Terminate On January 29, 2015, Sasser and Zepeda held a timecard investigation meeting with Plaintiff and Sylvia Delgado, her union representative. At the meeting, Plaintiff was presented with five instances of discrepancies found in her reported evening differential, with discrepancies ranging from 40 minutes to 107 minutes between the time she swiped out of the garage and her reported evening differential time.5 (UMF 64-65.) A sixth discrepancy on December 4, 2014, displaying a 17 minute difference, was noted by Sasser in advance of the meeting but was not considered or discussed because Sasser allowed her employees about a 15 minute window between their recorded time and the time they left the garage. (UMF 66-67.) To explain the discrepancies, Plaintiff responded that she either submitted her timecard early, moved her car out of the garage to be closer to the BPMC for personal safety reasons, or, in one instance, may have moved her car closer to unload materials. (UMF 68.) Neither Sasser nor Zepeda found Plaintiff's explanations to be credible, as they had seen Plaintiff leaving the facility on video in 4 of the 5 instances with personal belongings in hand. (UMF 69.) Sasser and Zepeda also did not find Plaintiff' statement that she would sometimes move her 5 The five instances of discrepancies found were as follows: (1) October 8, 2014, 107 minutes between when Plaintiff claimed to have left work at 7:30pm and the garage swipe and video which show her leaving the garage at 5:43pm; (2) October 15, 2014, 77 minute difference between her recorded time and when she left the garage (2 hours of evening differential and left garage at 6:49pm); (3) November 12, 2014, 40 minute discrepancy (claimed 1 hour of evening differential but left garage at 6:20pm); (4) November 19, 2014, 51 minute discrepancy (claimed 1 hour of differential, left garage at 6:09pm); and (5) December 11, 2014,- 74 minute discrepancy (claimed 1 hour of differential, left garage at 5:46pm). (UMF 65.) - 6 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 14 of 34 Page ID #:765 car out of safety concerns believable, as it was inconsistent with their evaluation of the safety of parking in the secured employee parking garage rather than the street. (UMF 70.) Additionally, if Plaintiff had turned in her timecard to her supervisor early, she was responsible for submitting a correction if she knew that the submitted timecard contained incorrect information. (UMF 71.) Sasser and Zepeda therefore determined that Plaintiff had committed timecard fraud. (UMF 74.) SCPMG takes timecard fraud very seriously— a substantiated finding of timecard fraud results in immediate termination. (UMF 91- 92.) Because Plaintiff had engaged in timecard fraud, and because the timecard fraud had been substantiated, Zepeda recommended to Sasser and Sack that Plaintiff's employment be terminated. (UMF 79.) Sasser also compared the timecards and garage swipes for three other Health Educators whose garage swipe information was available.6 (UMF 76.) After reviewing the information, Sasser informed Zepeda and Sack that the three employees' discrepancies were either "small discrepancies" (e.g. approximately 15 minutes for each instance) or the discrepancies "tend[ed] to be not requesting enough evening differential pay." (UMF 76.) Sack and Zepeda did not review these employees' garage swipes and timecards. (UMF 77.) Sack was not involved in the investigation apart from Sasser reporting to Sack on her findings. (UMF 78.) On February 17, 2015, Sasser had begun the termination process. (UMF 79.) By noon on February 18, Zepeda had reviewed and revised the termination letter. (UMF 81.) On the morning of the February 18, Sasser emailed Plaintiff and Delgado to schedule what was intended to be the termination meeting. (UMF 80.) F. Plaintiff Takes Stress Leave and SCPMG Delays Her Termination Until Her FMLA Leave Is Exhausted On the afternoon of February 18, Sasser received a work status note from 6 In 2015, the three employees' ages were as follows: 57 years old, 38 years old, and 64 years old. One was hired in 2002 (13 years of service in 2015), another in 1997 (18 years of service in 2015), and another in 2005 (had 10 years of service in 2015.) (UMF 111-112.) - 7 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 15 of 34 Page ID #:766 Plaintiff putting her off work from February 18 to February 24. (UMF 82.) Plaintiff remained off work until her termination. (UMF 83.) She also filed for workers' compensation for this injury. (UMF 84.) Plaintiff's termination was delayed until her FMLA leave was exhausted on May 13, 2015; her employment was terminated on March 15, 2015. (UMF 85-87.) Because Zepeda was on medical leave, Cheryl Witt, the Director of Human Resources at the BPMC, processed Plaintiff's termination. (UMF 88.) No one involved in the termination decision knew or determined whether Plaintiff was or was not eligible for receiving retiree medical benefits prior to her termination. (UMF 93.) Neither Sack, Sasser, nor Zepeda—the only individuals involved in the decisional process to terminate Plaintiff—had authority to make or determine Kaiser's corporate-wide policies, nor did they participate in the national policy making process. (UMF 115-116.) Prior to her termination, Plaintiff did not complain to her employer or to HR that she felt she was discriminated against on the basis of disability, age or for refusing to retire. (UMF 101-102.) G. Purported A2eist Comments At November 2014 Meeting On approximately November 3, 2014, Plaintiff was called into a meeting with Sack and Tracy Hadfield ("Hadfield"), the Manager of Bariatric Classes and Acting Department Administrator in Sasser's absence. (UMF 94.) Sack and Hadfield met with Plaintiff because they were meeting with all Educators to discuss their productivity and the capacity for the department to offer more classes. (UMF 96.) Plaintiff alleges that, during this meeting, Sack asked Plaintiff more than once whether she was retirement age and whether she was getting ready for retirement. (UMF 97.) Plaintiff also alleges that Sack told her she could write her up for being tardy, which could be proven by pulling her garage swipes and comparing them to her timecards. (UMF 98.) - 8 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 16 of 34 Page ID #:767 Plaintiff was 66 years old at the time of termination. (UMF 99.) No one was hired to replace her position post-termination. (UMF 100.) In 2015, Sack was 60 years old, Sasser was 43, Zepeda was 63, and Witt was 49. (UMF 103.) In 2015, of the about 21 employees who reported to Sasser, 15 were over the age of 40, 12 were over 50, and 7 were over 60 years old. (UMF 104.) Four other employees who reported to Sasser (other than Plaintiff), had been working for SCPMG for between 13 and 15 years in 2015 remained employed. (UMF 105.) Further, of 218 employees terminated from the BPMC from January 1, 2014, to December 31, 3015, only 6 had between 13 and 15 years of employment, the majority were under 40 years old, and about 46 had over 15 years of service. (UMF 107-110.) Also, of the 8 employees terminated at the BPMC for timecard fraud from January 1, 2014, to December 31 2015, 5 were under 40 and the rest were 43, 56, and 56. (UMF 113-114.) H. Personnel File Request Plaintiffs first attorneys, Sessions Kimball, made a request to SCPMG for her personnel file. (UMF 117.) Plaintiff fired Sessions Kimball and hired the Azadian Law Group. (UMF 118.) However, during her deposition, Plaintiff stated that she did not recall whether SCPMG ever responded to Sessions Kimball's request for her personnel file. (UMF 119.) III. LEGAL ARGUMENT A. Standard for Summary Judgment A Court shall grant summary judgment when the moving party demonstrates that there are no genuine disputes as to any material facts and that it is entitled to judgment as a matter of law.' Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine dispute requires showing more than "some metaphysical doubt as to the material facts." Matsushita Electric Indus. Co. ' The standard that applies to a motion for summary adjudication is the same as that which applies to a motion for summary judgment. See Fed. R. Civ. P. 56(a); Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). - 9 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 17 of 34 Page ID #:768 v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court held that a defendant moving for summary judgment need not disprove each of the plaintiff's claims, but, rather, need only demonstrate the absence of any material issue of fact as to one of the elements essential to the plaintiff's claim. 477 U.S. at 325. If the court determines that there is no genuine issue as to any material fact and Defendants are entitled to judgment, then summary judgment is mandatory. Id. at 322. The Court may grant summary judgment on "each claim or defense — or the part of each claim or defense — on which summary judgment is sought." Fed. R. Civ. P. 56(a). Summary Judgment is also warranted if courts lack subject matter jurisdiction over causes of action that are preempted by federal law. See Shane v. Greyhound Lines, Inc., 868 F.2d 1057, 1061 (9th Cir. 1989) (affirming dismissal of wrongful discharge claim on summary judgment because it was based on union activity and, thereby, was preempted by NLRA §§ 7 and 8). B. Defendants are entitled to Summary Judgment of Plaintiff's First and Fifth Causes of Action Because Plaintiff's Claims are Preempted by the National Labor Relations Act i. Under the Doctrine of Preemption set forth in San Diego Building & Trades Council v. Garmon ("Garmon"), the NLRA Preempts All State Law Claims Actually or Arguably Prohibited or Protected by the NLRA Under the doctrine of preemption articulated in Garmon, the United States Supreme Court held that the NLRA preempts any state cause of action concerning conduct the NLRA actually or arguably prohibits or protects, even if such claims constitute a tort under state law. Garmon, 359 U.S. at 244. "When an activity is arguably subject to § 78 or § 89 of the [NLRA], the States as well as the federal 8 Section 7 of the National Labor Relations Act ("NLRA") guarantees employees "the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection ..." 29 U.S.C. § 157. 9 Section 8 makes it an unfair labor practice for an employer to "interfere with, retrain, or coerce employees in the exercise of the rights guaranteed in" Section 7 (Footnote continued on next page) - 10 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 18 of 34 Page ID #:769 courts must defer to the exclusive competence of the [NLRB] if the danger of state interference with national policy is to be averted." Id. at 245; Belknap v. Hale, 463 U.S. 491, 498 (1983). This preemption, known as Garmon preemption, "seeks to prevent conflicts between state ... regulation and Congress's integrated scheme of regulation" under Sections 7 and 8 and to "protect the NLRB's primary jurisdiction." 520 S. Mich. Ave. Assocs. v. Shannon, 2008 U.S. App. LEXIS 25852 (7th Cir. Dec. 15, 2008) (citing Garmon, 359 U.S. at 244-45); Livadas v. Bradshaw, 512 U.S. 107, 117, n.11 (1994). "The Garmon rule prevents states not only from setting forth standards of conduct inconsistent with the substantive requirements of the NLRA, but also from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act." Wis. Dep't of Indus., Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 286 (1986). California courts have uniformly applied the Garmon preemption doctrine and concluded that state courts have no jurisdiction to determine any claims related to activities regulated by Section 7 or 8 of the NLRA, even if such claims constitute a tort under state law. See Luke v. Collotype Labels USA, Inc., 159 Cal. App. 4th 1463, 1473 (2008); Ruscigno v. Am. Nat'l Can Co., Inc., 84 Cal. App. 4th 112, 119-120 (2000); Rodriquez v. Yellow Cab Cooperative, Inc., 206 Cal.App.3d 668, 681 (1988). ii. Plaintiff's Fifth Cause of Action for Violations of Labor Code §. 201 and 203 Are Preempted Because SCPMG's Alleged Failure to Pay Plaintiff the Evening Shift Differential Owed to Plaintiff Under the terms of a Predecessor CBA is an Unfair Labor Practice in Violation of the NLRA Plaintiff's Fifth Cause of Action for Failure to Pay Wages (Labor Code §§ 201, 203) alleges that SCPMG intentionally and willfully failed to pay Plaintiff her evening differential pay. (FAC ¶ 93.) In this case, Plaintiff's claim for failure to pay the evening differential pay exists solely as a function of the SEIU CBA, as California law does not mandate an employer to provide evening differential pay. and to discriminate against employees to "encourage or discourage membership in any labor organization." 29 U.S.C. § 158(a)(1), (3). DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 19 of 34 Page ID #:770 Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007).10 However, during the relevant period, SEIU no longer represented Plaintiff's bargaining unit; as of November 2010, NUHW had been elected as the certified bargaining representative for Plaintiff's unit, and NUHW and SCPMG did not make an agreement as to a new CBA until December 2015 (after Plaintiff's termination). Section 8(a)(5) of the NLRA requires employers to maintain the "status quo" of wages, hours and working conditions following selection of a new bargaining representative until a new CBA is reached or until impasse is reached in the bargaining. See NLRB v. Katz, 369 U.S. 736, 747 (1962) Thus, SCPMG's obligation to pay employees — including Plaintiff — the evening shift differential provided for in the SEIU CBA only continued after NUHW's election in December 2010 pursuant to SCPMG's obligation to continue the status quo of wages, hours, and working conditions. Id. Any purported failure of SCPMG to unilaterally change or refuse to honor the terms of the expired SEIU CBA pending negotiations on a new agreement constitutes an unfair labor practice in breach of sections 8(a)(1), 8(a)(5) and 8(d) of the National Labor Relations Act. See Lab. Health & Welfare Trust Fund for N. Cal. v. Advanced Lightweight Concrete Co., Inc., 779 F.2d 497, 500 (9th Cir. 1985). Consequently, Plaintiff's claim for unpaid evening shift differential is Garmon preempted because it alleges an unfair labor practice in violation of the NLRA that must be heard before the NLRB. See id." Thus, under Garmon, the 10 See, e.g, Levy v. Skywalker Sound, 108 Cal. App. 4th 753, 768-770 (2003) (finding that plaintiff's claim for unpaid wages was preempted because it "rests entirely on his claim that the [side letters between the employer and the union] entitled him to wages at the level set by the CBA" and thus inherently requires the interpretation of a labor-management agreement"); Newberry v. Pac. Racing Ass 'n, 854 F.2d 1142, 1146 (9th Cir. 1988) ("A suit for breach of a collective bargaining agreement is governed exclusively by federal law under section 301."). The adjudication of Plaintiff spTeempted claim requiring the interpretation of a CBA is within the purview of the NLRB and "is exclusively a matter -for arbitration under federal law." Levy, 108 Cal. App. 4th at 762. 11 See e.g. Cement Masons Health & Welfare Trust Fund for N. Cal. v. Kirkwood- Bly, Inc., 520 F. Supp. 942, 943 (N.D. Cal. 1981) (finding that NLRB rather than (Footnote continued on next page) - 12 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 20 of 34 Page ID #:771 court has no jurisdiction to determine Plaintiff's claim for unpaid evening shift differential. Accordingly, Plaintiff's wage claims are entirely preempted by the NLRA and Defendants are entitled to Summary Adjudication of Plaintiff's Fifth Cause of Action. iii. Plaintiff's First Cause Of Action For Wrongful Termination In Violation Of Public Policy is Preempted To the Extent that it is premised on plaintiff's allegation that her employment was terminated in retaliation for complaining that she was not paid evening shift differential Plaintiff's First Cause of Action is pled as a common law claim for wrongful termination based on Plaintiff "complaining of illegal activity ... in that [she] felt she was being discriminated against . . . in retaliation for her complaints regarding improper pay." (FAC ¶ 58.) To the extent that Plaintiff alleges that Defendants retaliated against her for complaining about SCPMG's breach of the CBA, namely, its failure to pay her the evening differential owed under the SEIU CBA, this part of her claim is Garmon preempted.12 Plaintiff's alleged activities are well within the ambit of the NLRA. When an employee's objection to the employer's conduct is based upon the CBA, the objection is protected by Section 7 of the Act, even if not meritorious. Graphic Arts Engraving Co., Inc., 197 NLRB No. 96 (1972). An employer violates an employee's rights under Section 7 of the NLRA and commits an unfair labor the district court had jurisdiction over claim alleging that employer unilaterally changed the terms and conditions of employment following expiration of the CBA); see also Levy v. Verizon Info. Servs., Inc., 498 F. Supp. 2d 486, 600 (E.D.N.Y. 20Q7) ("a state law breach of contract claim that is premised on a party's maintenance of the status quo, following expiration of a CBA, must be considered preempted"); Pattern Makers' Pension Trust Fund v. Badger Pattern Works, Inc., 615 F. Supp. 792, 799 (N.D. Ill. 1985) ("this Court lacks jurisdiction under NLRA 301 to hear a claim arising from the status quo requirement embodied in NLRA § (a)(5)"). 12 The bases for Plaintiffs claim that are not Garmon preempted — that is, the part of her claim based on her allegation that Defendants terminated her employment for complaining about discrimination based on disability or age — fail as discussed further below in Section III.D.iv. Additionally, Plaintiff's claim for retaliation based on disability discrimination fails to the extent that it is preempted by the Calfornia Workers Compensation Act, as discussed further below in Section III.E. - 13 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 21 of 34 Page ID #:772 practice under Section 8 of the NLRA when it threatens reprisal against employees for filing grievances or otherwise seeking to enforce a CBA. Northfork Energy, Inc., 310 NLRB No. 44 (1993); O.B. Williams Co., 252 NLRB No. 146 (1990) (employer violated Section 8(a)(3) when it laid off an employee in retaliation for him filing a grievance); U.S. Postal Serv., 256 NLRB No. 121 (1981) (violation of Section 8(a)(1) by threatening employees with retaliation for filing grievances). Thus, under Garmon, the Court has no jurisdiction to determine any claims related to Plaintiff's objections to Defendants' alleged contract violations. See Luke, 159 Cal. App. 4th at 1473. C. Defendants Are Entitled to Summary Judgment on Plaintiff's ERISA Claims (Fourth and Second Cause of Action 1Ag,e1) Because Plaintiff Cannot Establish a Prima Facie Violation of ER1SA Plaintiff's Fourth Cause of Action is a direct claim for violation of ERISA. Plaintiff's Second Cause of Action purports to be a claim for discrimination based on age, but, in support of this claim, she alleges that her employer intended to deprive her of her retiree health benefits. To the extent that Plaintiff bases her age discrimination and disparate impact claim on ERISA violations (i.e. the employer's alleged intent to deprive her of retiree health benefits), then the state law claim for age discrimination drops out because it is ERISA preempted. In other words, if Plaintiff is claiming that she was terminated because older workers would be discharged to avoid a retiree medical benefit payout, the age discrimination and disparate impact claim is preempted by ERISA. Tingey v. Pixley-Richards West, Inc., 953 F.2d 1124, 1130-31 (9th Cir. 1992) (a wrongful termination state claim was preempted by ERISA when employee claims he was fired because his employer did not want to continue to pay his benefits)(citing Felton v. Unisource Corp., 940 F.2d 503 (9th Cir. 1991); Hall v. Blue Cross/Blue Shield of Alabama, 134 F.3d 1063, 1064-65 (11th Cir. 1998) (noting that "state law claims relate to an ERISA plan for preemption purposes whenever the alleged conduct at issue is - 14 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 22 of 34 Page ID #:773 intertwined with the refusal to pay benefits"). Under Section 510 of ERISA, 29 U.S.C. § 1140, an employer is prohibited from terminating an employee to prevent the vesting of pension rights. To establish a claim under Section 510, a plaintiff must establish a prima facie case of a violation of the Act—a burden-shifting analysis (McDonnell Douglas) showing she was qualified to do her job and the employment decision was based on an intent to interfere with vesting of ERISA benefits. See Ritter v. Hughes Aircraft Co., 68 F.3d 454, 457-58 (9th Cir. 1995). But, unlike McDonnell Douglas, this analysis requires a heightened standard—proving that the plaintiffs employment was terminated "because of a specific intent to interfere with ERISA rights." Id. (emphasis added).13 Proof of specific intent is critical in Section 510 cases; vague and attenuated allegations will not suffice. Ritter, 68 F.3d at 457. Plaintiff cannot establish specific discriminatory intent because, at best, her allegations are speculative and do not meet the threshold necessary to prove specific intent. No one involved in the termination decision knew or determined whether she was or was not eligible for receiving retiree medical benefits prior to her termination (i.e., no one involved in the termination calculated whether Plaintiff had 1,000 compensated hours for 15 years of covered service)—one cannot have intent to interfere with vesting of benefits when one is not even aware of the vesting or the benefits to which Plaintiff was entitled. There is also no circumstantial evidence that SCPMG was targeting any employees who were close to receiving retiree medical benefits. Moreover, there is no evidence that Plaintiff did not attain the 1,000 compensated hours in her 15 years of service that is necessary to qualify for retiree benefits. Plaintiff admits, in fact, that she never applied for retire health 13 Ritter v. Hughes Aircraft Co., 68 F.3d 454, 457-58 (9th Cir. 1995)(granting_ defendants' summary judgment due to plaintiffs failure to establish a prima facie case of specific discriminating intent); see also Dytrt v. Mountain State Tel. & Tel. Co. 921 F.2d 889, 896 (9th Cir. 199 (finding that incidental effects are not sufficient to show a specific discriminatory motive). - 15 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 23 of 34 Page ID #:774 benefits and that her belief that she is not qualified is based solely on the fact that she was terminated approximately three months shy of attaining a full 15 years of service. Thus, summary judgment is appropriate for Plaintiff's ERISA Defendants Are Entitled To Summary Judgment On Plaintiff's Termination Claims (First Cause of Action for Wrongful Termination in Violation of Public Policy, Second Cause of Action for Age Discrimination, and Third Cause of Action for Disability Discrimination) Plaintiff's "Termination Claims" include the non-Garmon preempted basis for her First Cause of Action for Wrongful Termination in Violation of Public Policy,15 her Second Cause of Action for Violation of FEHA based on Age (Disparate Treatment and Disparate Impact), and her Third Cause of Action for Violation of FEHA based on Disability. i. Legal Analysis and Order of Proof in Discrimination, Retaliation and Wrongful Termination Cases Discrimination, retaliation, and wrongful termination claims follow the same burden-shifting paradigm articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and confirmed under California law in Guz v. Bechtel Nat'l, Inc., 24 Ca1.4th 317, 353 (2000). Mixon v. FEHC, 192 Cal. App. 3d 1306, 1317 (1987). To establish a prima facie case of discrimination based on protected status or retaliation based on protected activity, Plaintiff must show that: (1) she has protected status or engaged in protected activity; (2) that she was subjected to an adverse employment action; and (3) that there is a causal nexus between her 14 Should the Court only dismiss Plaintiff's ERISA claim, the Court will be divested of federal court jurisdiction as Plaintiff's remaining claims are state court claims presenting no federal question. 15 As discussed further above, to the extent that Plaintiff's First Cause of Action is based on the allegation that her employment was terminated in retaliation for complaining to her employer about their failure to pay her an evening shift differential owed to her under the predecessor SEIU CBA, her claim is preempted by the NLRA under Garmon. To the extent that Plaintiff's First Cause of Action is based instead on the allegation that her employment was terminated in retaliation for complaining to her employer about discrimination on account of her age or disability, this claim fails on its merits for the reasons set forth below. - 16 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 24 of 34 Page ID #:775 protected status or activity and the adverse employment action. Brundage v. Hahn, 57 Cal. App. 4th 228, 236 (1997); Yanowitz v. L'Oreal USA, Inc., 36 Ca1.4th 1028, 1042 (2005); Morgan v. Regents, 88 Cal. App. 4th 52, 70 (2000). Under this analysis, if Plaintiff establishes the elements of a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory, or non-retaliatory reason for its adverse employment action. Loggins v. Kaiser Permanente Intl, 151 Cal. App. 4th 1102, 1109 (2007). Once the employer articulates such a reason, the burden then shifts back to Plaintiff to produce specific and substantial evidence showing that her employer's proffered reasons were untrue, arbitrary,or "pretext" for unlawful discrimination. Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718, 1730-32 (1994); Hersant v. Cal. Dept. of So. Serv., 57 Cal.App.4th 997, 1004 (1997).16 If Plaintiff fails to come forth with substantial responsive evidence to raise a triable issue of any material fact, the employer is entitled to summary judgment. Martin, 29 Cal. App. 4th at 1735. ii. Defendants Are Entitled to Summary Judgment on Plaintiff's Disability Claims Because Plaintiff Cannot Establish Disability Discrimination To establish a prima facie case of disability discrimination under FEHA, Plaintiff must show: (1) she suffers from a disability; (2) that she is a qualified individual, and (3) that her employment was terminated because of her disability. Brundage, 57 Cal. App. 4th at 236. While "the temporal proximity between an employee's disclosure of [her] symptoms and a subsequent termination may satisfy the causation requirement at the first step of the burden-shifting process," temporal proximity alone is not sufficient to establish pretext because it does not amount to "more than a scintilla of evidence of discrimination." Arteaga v. Brink's, Inc., 163 16 "It is not enough ... to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." McGrory v. Applied Signal -Tech., Inc., 212 Cal. App. 4th 1510, 1532 (2013). - 17 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 25 of 34 Page ID #:776 Cal. App. 4th 327, 353 (2008). This is especially so where the employer raised questions about issues with the employee before the disclosed symptoms, and the subsequent termination was based on those issues. Id. The investigation into Plaintiffs timecard fraud that led to her termination began over a month before Plaintiffs first alleged disability. As such, SCPMG had already discovered the discrepancies in Plaintiff's reported differential time (i.e., the timecard fraud—an offense that results in immediate termination upon substantiation) before SCPMG had notice of Plaintiff's first alleged disability. And Plaintiffs termination was already underway when SCPMG was notified of Plaintiff's second alleged disability. Also, the fact that the two individuals investigating her timecard fraud took extended medical leaves around the time of the investigation further undercuts any alleged discriminatory animus. iii. Defendants Are Entitled to Summary Judgment on Plaintiff's Age Claims Because Plaintiff Cannot Establish a Prima Facie Case of Pure Age Discrimination "[A] reasonable inference, that is, a prima facie case, of age discrimination arises when the employee shows (1) at the time of the adverse action he or she was 40 years of age or older, (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job and (4) the employee was replaced in his position by a significantly younger person" (except where a RIF is involved). Hersant, 57 Cal. App. 4th at 1003 (citing Caldwell v. Paramount Unified School Dist. (1995) 41 Cal. App. 4th 189, 195-200). Here, no one replaced Plaintiff's position, nor was she terminated in connection with a RIF. Either way, there are no circumstances that give rise to an inference of age discrimination. In 2015, of the about 21 employees who reported to Sasser, the majority were over 40,17 as were all the individuals involved in the termination. The age data provided herein simply does not support 17 15 were over 40, 12 were over 50, and 7 were over 60 years old. - 18 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 26 of 34 Page ID #:777 an age discrimination claim. To the extent Plaintiff intends to rely on direct evidence of alleged discrimination, her claim fails because her allegations fail to establish a "causal relationship" between any alleged discriminatory animus and her discharge. While Plaintiff alleges certain ageist remarks by Sack (i.e., that Sack asked her whether she was retirement age and whether she was ready for retirement), she fails to connect those remarks in any manner to her termination. See Harris v. City of Santa Monica, 56 Cal. 4th 203, 231 (2013).18 Here, Sack was not involved in the investigation that led to Plaintiff's termination, and there is no evidence that Sack's alleged discriminatory animus had any causal connection to Plaintiff's termination. Plaintiff has, at most, pled the existence of "discrimination in the air" in the form of "stray comments" by a supervisor.19 As Plaintiff has failed to plead any connection between the alleged discriminatory animus on the part of Sack and Plaintiff's discharge, her claim further fails as a matter of law. As for disparate impact, Plaintiff has no evidence that there was a neutral policy or practice, bearing no manifest relationship to job requirements, that had a disproportionately adverse effect on older workers. Guz, 24 Ca1.4th at 354, fn. 20, citing Griggs v. Duke Power Co. (1971) 401 U.S. 424, 431; Ibarbia v. Regents of the Univer. of Cal. (1987) 191 Cal.App.3d 1318, 1329-1330. There is no evidence that the employer's policy with respect to termination of employees for engaging in timecard fraud had any disproportionally adverse effect on older workers.2° Nor is 18 See also Cefalu v. Holder, 2013 WL 5315079, at *5 (N.D. Cal. Sept. 23, 2013) (allegations that plaintiffs supervisors made disparaging remarks about his age, including calling him the "old guy," were insufficient to defeat summary judgment where plaintiff failed to present any evidence linking the comments to an adverse employment action). 19 See, e.g., Smith v. Firestone Tire & Rubber Co., 875 F.2d 1325, 1330 (7th Cir. 989) (noting that stray "remarks,... when unrelated to the decisional .process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decisionmaker in issue"). 20 Of the 8 employees terminated at the BPMC for timecard fraud from January 1, 2014, to December 31 2015, 5 were under 40 and the rest were 43, 56, and 56. - 19 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 27 of 34 Page ID #:778 there any evidence that older workers were disproportionately terminated, or that employees were disproportionately terminated because of their proximity to fifteen years of service.21 iv. Defendants Are Entitled to Summary Judgment on Plaintiff's Wrongful Termination Claim Because Plaintiff Cannot Establish a Prima Facie Case of Retaliation To the extent Plaintiff's First Cause of Action for wrongful termination in violation of public policy is based on the allegation that her employment was terminated in retaliation for complaining about age discrimination or disability discrimination (i.e., FEHA retaliation), Plaintiff's claims fail because she failed to make any protected complaints. In order to establish a prima facie case of wrongful termination in retaliation for making a FEHA-protected complaint, a plaintiff must show: (1) that she engaged in a protected activity, (2) that her employer subjected her to adverse employment action, and (3) that there is a causal link between the protected activity and the employer's action. Yanowitz v. L'Oreal USA, Inc. (2005) 36 Ca1.4th 1028, 1044. Plaintiff must show that she engaged in a "protected activity" tethered to a specific constitutional or statutory provision. Green v. Ralee Eng'g Co. (1998) 19 Ca1.4th 66, 76. To qualify as protected activity, complaints to an employer must "sufficiently communicate[] to [the employer] that [the employee] believe[d] that [the employer's conduct] was discriminatory. Id. at 1028. "Complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct." Guyton v. Novo Nordisk, Inc., 151 F. Supp. 3d 1057, 1073 (C.D. Cal. 2015) (citations omitted). An employee's unarticulated belief that the employer's conduct is unlawful does not establish the kind of opposition required to constitute protected activity 21 Of the 218 employees terminated from the BPMC in 2014 to 2015, only 8 had more than 13 years of employment and less than 15 years of employment, the majority were under 40, and about 46 had over 15 years of service. - 20 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 28 of 34 Page ID #:779 (i.e., employer must be put on notice as to what conduct it should investigate). Id. at 1068. Here, Plaintiff acknowledges that she did not complain to SCPMG that she felt discriminated against because of her age or for refusing to retire.22 She further admits that she did not complain to her employer that she felt discriminated against on the basis of her disability.23 v. Even if Plaintiff Could Establish a Prima Facie Case for Any of Her Termination Claims, Plaintiff's Claims Fail Because Plaintiff's Employment Was Terminated for a Legitimate, Non- Discriminatory Reason: Timecard Fraud Even if Plaintiff could present evidence necessary to state a prima facie case for discrimination under any theory, Plaintiff's employment was terminated for a legitimate, non-discriminatory reason—timecard fraud. The undisputed evidence proves: Plaintiff submitted timecards on at least five occasions in just three months requesting an evening differential where there was discrepancy with garage swipe data; Plaintiff was seen exiting the garage on video at the time of her garage swipes; and she was seen exiting the facility with her belongings in hand in 4 of the 5 instances. Sasser and Zepeda did not find Plaintiff's explanations of her discrepancies to be credible and believed she engaged in timecard fraud. At SCPMG, timecard fraud is a serious offense which warrants automatic termination, no matter how well liked or how senior the tenure of the employee and no matter 22 Plaintiff did complain to her non-supervisory coworkers and to David Mallon, who is not an SCPMG employee, but is instead a union employee. (Depo. Cite) Plaintiff did not complain to her supervisors, nor is there evidence that Plaintiff s non-supervisory coworkers or David Mallon relayed these complaints to Plaintiff's supervisors. See, e.g., Avila v. Cont 'l Airlines, Inc., 165 Cal. App. 4th 1237 , 1250 (2008) (holding that summary judgment was properly granted on a FEHA discrimination claim because there was no basis to impute actual knowledge of plaintiff's disability to those not involved in the decision to discharge plaintiff). 23 Even assuming that plaintiff's question to Zepeda after the investigatory meeting — about whether the timecard fraud investigation was happening because of her January 21 workplace injury — was enough to put SCPMG on notice that Plaintiff was making a_protected complaint, the timecard fraud investigation began well before Plaintiffs inquiry to Zepeda, thus, there is no causal nexus present to infer retaliation for her question to Zepeda. Morgan v. Regents of Univ. of Calif. (2000) 88 Cal. App. 4th 52, 69, 105. - 21 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 29 of 34 Page ID #:780 the dollar amount of the alleged fraud. Engaging in timecard fraud is a legitimate, non-discriminatory reason for terminating Plaintiff's employment. vi. Plaintiff's Termination Claims Fail Because Plaintiff Does Not Have "Specific, Substantial" Evidence That Her Termination Was Pretext For Discrimination Plaintiff has no "substantial, responsive" evidence to create a triable issue as to whether SCPMG's reasons for terminating her employment were pretext for unlawful discrimination. Mere assertions and conjecture that the employer acted with a discriminatory motive are not enough to meet this burden. Martin, 29 Cal. App. 4th at 1735 (speculation of unlawful motive cannot defeat employer's motion for summary adjudication). Nor can an employee in this situation simply show the employer's decision was wrong, mistaken, or unwise. DFEH v. Lucent Tech., Inc., 642 F.3d 728 (9th Cir. 2011). Rather, Plaintiff must proffer admissible evidence from which "a reasonable trier of fact could conclude the employer engaged in intentional discrimination." Hersant, 57 Cal. App. 4th at 1005. The circumstances of Plaintiff's termination create no triable issue of pretext. Whether Plaintiff was actually committed timecard fraud is immaterial. Arteaga v. Brink's, Inc., 163 Cal. App. 4th 327, 344 (2008)("The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.") 24 Based on the investigation into Plaintiff's timecard discrepancies, SCPMG believed that Plaintiff had engaged in timecard fraud. Plaintiff cannot simply argue SCPMG's reasons for her termination were false or wrong. She must offer admissible evidence that her termination was discriminatory.25 Plaintiff cannot meet this 24 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (in judging whether employer's proffered justifications were "false," question of whether employee terminated for dishonest), actually lied is "not important"); Hicks v. KNTV Television Inc., 160 Cal.App.4th 994, 1005 (2008)(a court does not "sit as super personnel department that reexamines an entity's business decisions.) The plaintiff must do more than raise the inference that the employer's asserted reason is false. A reason cannot be proved to be a 'pretext for discrimination' unless it is shown both that the reason was false and that discrimination was the real reason. If the plaintiff produces no evidence from which a reasonable fact (Footnote continued on next page) - 22 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 30 of 34 Page ID #:781 burden as to her Termination Claims. Although Plaintiff undoubtedly disagrees with SCPMG about the timecard fraud that resulted in her termination, that is not enough to defeat summary judgment. Plaintiff cannot provide any evidence to establish that Plaintiff's employment was terminated for any other reason. E. Defendants Are Entitled to Summary Judgment of Plaintiff's Disability Discrimination/Retaliation Claims to the Extent that Such Claims are Preempted by the California Workers Compensation Act Plaintiff's third cause of action alleges that her employment was terminated on account of her disability. (FAC ¶ 75-83.) However, Plaintiff's alleged "disabilities" were two workplace injuries (January 2015 fall or February 2015 stress leave). (FAC 11133-35; 48-49.) Plaintiff's first cause of action, in part, generically alleges that Plaintiffs employment was terminated in retaliation for making complaints about her purported disability. (FAC ¶ 58.) But, Plaintiff made no complaints about unfair treatment on account of any disability. (UMF 73.) Plaintiff did, however, file a workers' compensation claim in connection with her workplace injuries. (UMF 84.) To the extent that any of Plaintiffs causes of action are premised on a claim of discrimination or retaliation on account of (a) suffering a workplace injury or (b) filing a workers compensation claim, Defendants are entitled to summary judgment on these claims because this activity is exclusively protected by California Labor Code § 132a and Plaintiffs claim must be brought before the California Workers Compensation Appeals Board. Dutra v. Mercy Med. Ctr. Mt. Shasta, 209 Cal.App.4th 750, 755, 756 (2012). "Labor Code section 132a extends certain civil rights protections to employees who are injured in the course of their employment." Dutra, 209 Cal.App.4th 750, 754. But, the statute also grants to the Workers Compensation Appeals Board ("WCAB") the "jurisdiction to remedy violations." and "vests the WCAB 'with full power, authority, and jurisdiction to finder would infer the employer's true reason was discriminatory, the employer is entitled to summary judgment. Hicks, 160 Cal. App. 4th at1003 (emphasis added). - 23 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 31 of 34 Page ID #:782 try and determine finally all matters specified in this section subject only to judicial review, except ... [to] determine a misdemeanor charge.'"26 Id. at 755. Thus, a plaintiff cannot base a tort action for wrongful termination on the public policy embodied in Labor Code section 132a. Dutra, 209 Cal.App.4th at 755-56. "Section 132a includes limitations on its scope and remedy that prevent it from being the basis of a common law cause of action." Id. Accordingly, Plaintiff's disability discrimination and wrongful termination claims fail to the extent that it is based on activities protected exclusively under section 132a.. F. Defendants Are Entitled to Summary Judgment of Plaintiff's Sixth Cause of Action For Failure to Provide Personnel File Because There Is No Evidence Plaintiff Was Denied A Copy of Her Personnel File Labor Code § 1198.5 provides that, "[e]very employee has the right to inspect the personnel records that the employer maintains relating to the employee's performance or to any grievance concerning the employee." The employer "shall" make the contents of the personnel records available to the employee "at reasonable intervals and at reasonable times, but not later than 30 calendar days from the date the employer receives a written request." Cal. Labor Code § 1198.5(b). Here, there is no evidence that SCPMG did not provide Plaintiff's personnel file to her former attorneys or otherwise respond to her former attorney's request. While Plaintiff may not have received her personnel file prior to filing this suit, there is no evidence that it was not provided to her former attorneys. This claim thus fails. G. Defendants Are Entitled to Summary Judgment of Plaintiffs Punitive Damages Claim For an employer to be liable for punitive damages, an officer, director or managing agent must have personally engaged in oppressive, fraudulent or malicious conduct towards the plaintiff, and a plaintiff must establish such conduct by clear and convincing evidence. McKinney v. Am. Airlines, Inc., 641 F.Supp.2d 26 I.e. "A trial court has no jurisdiction to hear a civil cause of action for an employer's breach of ... section 132a." Id. - 24 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 32 of 34 Page ID #:783 962, 983 (C.D. Cal. 2009) citing White v. Ultramar, Inc., 21 Ca1.4th 563, 577 (1999). Plaintiff is unable to meet that burden here. Civil Code section 3294(b) requires plaintiffs to prove that a corporate officer, director, or "managing agent" either committed, approved, or ratified malicious, despicable conduct. The California Supreme Court defines such an "officer, director, or managing agent to be someone who `exercise[s] substantial discretionary authority over decisions that ultimately determine corporate policy."' Roby v. McKesson Corp. (2009) 47 Cal. 4th 686, 714. The critical inquiry is the degree of discretion the employees possess in making decisions." Kelly—Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 421. To demonstrate that an employee is a managing agent, a plaintiff must show "that the employee exercised substantial discretionary authority over significant aspects of a corporations business." Id. at 577. Here, Plaintiff cannot establish that any person involved in the decisional processes regarding her termination was an officer, director or managing agent. She has no substantial evidence demonstrating that Sasser or Sack were involved in shaping corporate policy or in the national policy making process. Nor is there any evidence that any HR personnel involved in the investigation qualify as managing agents. As Zepeda testified, BR's role is to advise as to existing company policy; they are not involved in shaping policy.27 IV. CONCLUSION For all of the foregoing reasons, Defendants respectfully move for summary judgment or, alternatively, for partial summary judgment. 27 Moreover, Plaintiff has no competent evidence, let alone the "clear and convincing evidence," that any person involved in the decisional process regarding her termination had any intent to maliciously injure her. Plaintiff-has no evidence that anyone involved in her termination harbored any personal hatred or ill will toward her, or ever intended to cause her harm or derived any personal benefit from a personnel action taken toward her. Indeed, apart from Plaintiff's speculation, there is no competent evidence supporting a conclusion that anyone involved in Plaintiff's termination disliked her or wanted to cause her injury or harm. Thus, Plaintiffs claim for punitive damages fails. - 25 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 33 of 34 Page ID #:784 Dated: May 30, 2017 NIXON PEABODY LLP By: /s/ Alicia C. Anderson Michael Lindsay Alicia C. Anderson Irene Tatevosyan Attorneys for Defendants KAISER FOUNDATION HEALTH PLAN, INC., KAISER FOUNDATION HOSPITALS AND SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP - 26 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 34 of 34 Page ID #:785 4830-5370-0681.1 - 1 - [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 MICHAEL LINDSAY (SBN 110845) mlindsay@nixonpeabody.com ALICIA C. ANDERSON (SBN 260937) acanderson@nixonpeabody.com IRENE SCHOLL-TATEVOSYAN (SBN 301568) itatevosyan@nixonpeabody.com NIXON PEABODY LLP 300 S. Grand Ave., Suite 4100 Los Angeles, California 90071-3151 Telephone: (213) 629-6000 Facsimile: (213) 629-6001 Attorneys for Defendants KAISER FOUNDATION HEALTH PLAN, INC., KAISER FOUNDATION HOSPITALS AND SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CAROLYN MEDINA, an individual, Plaintiff, vs. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, a partnership; KAISER FOUNDATION HOSPITALS, a corporation; KAISER FOUNDATION HEALTH PLAN, INC., a corporation; and DOES 1 through 10 inclusive, Defendants. Case No. 2:16-CV-03109-PSG (JCx) [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Date: July 24, 2017 Time: 1:30 p.m. Ctrm: 6A Date Action Filed: March 15, 2016 Trial Date: August 22, 2017 [Filed concurrently with Memorandum of Points and Authorities in support of Motion; Statement of Uncontroverted Facts, Declarations, Exhibits and [Proposed] Order] Case 2:16-cv-03109-PSG-JC Document 31-2 Filed 05/30/17 Page 1 of 4 Page ID #:786 4830-5370-0681.1 - 2 - [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 On January 24, 2016 at 1:30 p.m. in Department 6A of the above captioned court, defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals and Southern California Permanente Medical Group (collectively, “Defendants”) brought for hearing their Motion for Summary Judgment or, in the alternative, Summary Adjudication. Based upon this hearing, as well as upon the Memorandums of Points and Authorities and supporting evidence, and good cause appearing, the Court hereby GRANTS Defendants’ Motion for Summary Judgment. After full consideration of the papers, the evidence, and the arguments of the parties, this Court finds there is no genuine issue of material fact in this action and that Defendants are entitled to summary judgment pursuant to Federal Rules of Civil Procedure 56, as follows: 1. Plaintiff’s First Cause of Action for wrongful termination following complaints of illegal activity, to the extent that the claim is for alleged retaliation following complaints regarding improper pay, fails as a matter of law because Plaintiff’s claim is Garmon preempted. 2. Plaintiff’s First Cause of Action for wrongful termination following complaints of illegal activity, to the extent that the claim is for retaliation following alleged complaints about plaintiff’s feeling that she was being discriminated against based on disability or age, fails as a matter of law because Plaintiff cannot establish a prima facie case for wrongful termination for complaining about illegal activity. 3. Plaintiff’s First Cause of Action for wrongful termination following complaints of illegal activity fails as a matter of law because Plaintiff’s employment was terminated for a legitimate, non-retaliatory, and non- pretextual reason. 4. Plaintiff’s Second Cause of Action for discrimination based on age fails as a matter of law because Plaintiff’s claim is preempted by ERISA. Case 2:16-cv-03109-PSG-JC Document 31-2 Filed 05/30/17 Page 2 of 4 Page ID #:787 4830-5370-0681.1 - 3 - [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 5. Plaintiff’s Second Cause of Action for discrimination based on age fails as a matter of law because Plaintiff cannot establish a prima facie case for pure age discrimination. 6. Plaintiff’s Second Cause of Action for discrimination based on age fails as a matter of law because Plaintiff’s employment was terminated for a legitimate, non-discriminatory, and non-pretextual reason. 7. Plaintiff’s Third Cause of Action for discrimination based on disability fails as a matter of law because Plaintiff cannot establish a prima facie case for wrongful termination of disability discrimination. 8. Plaintiff’s Third Cause of Action for discrimination based on disability fails as a matter of law because Plaintiff’s employment was terminated for a legitimate, non-discriminatory, and non-pretextual reason. 9. Plaintiff’s Fourth Cause of Action for violation of 29 U.S.C. § 1140 (ERISA) and Plaintiff’s Second Cause of Action for discrimination based on age (to the extent that this claim is preempted by ERISA), fail as a matter of law because Plaintiff cannot establish a prima facie case of violation of ERISA; specifically, Plaintiff cannot establish that (1) Defendants interfered with her attainment of ERISA benefits or (2) her employment was terminated with the specific intent to interfere with her ERISA rights. 10. Plaintiff’s Fifth Cause of Action for violation of California Labor Code §§ 201 and 203 (failure to pay all wages owed upon termination), fails as a matter of law because Plaintiff’s claim is Garmon preempted. 11. Plaintiff’s Sixth Cause of Action for violation of California Labor Code § 1198.5 (failure to provide personnel file), fails as a matter of law because there is no evidence that Plaintiff was not provided with a copy of her personnel file. Case 2:16-cv-03109-PSG-JC Document 31-2 Filed 05/30/17 Page 3 of 4 Page ID #:788 4830-5370-0681.1 - 4 - [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 12. Because Plaintiff’s [First Cause of Action] [and] [Third Cause of Action] appear[s] to be premised on a claim of discrimination or retaliation on account of her suffering a workplace injury or filing a workers compensation claim, Plaintiff’s claims fail as a matter of law because this activity is exclusively protected by California Labor Code § 132a and Plaintiff’s claim must be brought before the California Workers Compensation Appeals Board. 13. Plaintiff’s claim for punitive damages fails as a matter of law because there is no evidence that an officer, director or managing agent of Defendants personally engaged in oppressive, fraudulent or malicious conduct towards the plaintiff IT IS FURTHER ORDERED AND ADJUDGED THAT Plaintiff takes nothing from Defendants and that Plaintiff’s claims are dismissed on the merits and with prejudice. Judgment shall be entered forthwith in favor of Defendants and against Plaintiff. SO ORDERED. DATED: ___________, 2017 By: Hon. Philip S. Gutierrez Judge, United States District Court Case 2:16-cv-03109-PSG-JC Document 31-2 Filed 05/30/17 Page 4 of 4 Page ID #:789