memorandum of points and authorities in support of defendant dignity h

Cal. Super. - 1st Dist.October 28, 2021

MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 ATKINSON, ANDELSON, LOYA, RUUD & ROMO A Professional Law Corporation Rex Darrell Berry, State Bar No. 110219 Rex.Berry@aalrr.com Catherine M. Lee, State Bar No. 197197 Catherine.Lee@aalrr.com K. Moji Majekodunmi, State Bar No. 323724 KMajekodunmi@aalrr.com 1050 Northgate Drive, Suite 520 San Rafael, California 94903-2542 Telephone: (628) 234-6200 Fax: (628) 234-6899 Attorneys for Defendant DIGNITY HEALTH dba ST. MARY’S MEDICAL CENTER SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO DAWNLEA BUCEY, Plaintiff, v. DIGNITY HEALTH and DOES 1-10, inclusive, Defendant. Case No. CGC-20-585748 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DIGNITY HEALTH DBA ST. MARY’S MEDICAL CENTER’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION [REDACTED FOR FILING] Judge: Hon. Ethan P. Schulman Date: January 14, 2022 Time: 9:30 a.m. Dept.: 302 Complaint Filed: July 24, 2020 Trial Date: February 14, 2022 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 10/28/2021 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk TABLE OF CONTENTS Page - 2 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 I. INTRODUCTION. ............................................................................................................. 6 II. SUMMARY OF UNDISPUTED FACTS. ......................................................................... 7 III. LEGAL ANALYSIS. ........................................................................................................ 11 A. Legal Standard On Summary Judgment. .............................................................. 11 B. Plaintiff’s First And Second Causes Of Action For Hostile Environment Sexual Harassment Fail Because Plaintiff Cannot Establish The Elements Of The Claim. ....................................................................................................... 12 1. Applicable Law. ........................................................................................ 12 2. Plaintiff Cannot Establish The Existence Of “Severe Or Pervasive” Harassment That Altered The Terms And Conditions Of Her Employment. ............................................................................................. 12 C. Plaintiff’s Third Cause Of Action For Assault And Battery And Sixth Cause Of Action For Negligent Infliction Of Emotional Distress Are Barred By Workers’ Compensation Exclusivity. ................................................................... 15 1. Applicable Law. ........................................................................................ 15 2. Plaintiff’s Allegations Of Assault, Battery, and Negligent Infliction Of Emotional Distress Occurring Within The Scope Of Her Employment Are Barred By The Exclusivity Of The Workers’ Compensation Statutes. ............................................................................. 16 D. Plaintiff’s Fifth Cause Of Action For Failure To Engage In The Interactive Process Fails Because Plaintiff Does Not Claim To Be Disabled And Failed To Exhaust The Required Administrative Remedies Under FEHA. .................... 17 1. Applicable Law. ........................................................................................ 17 2. Plaintiff Cannot Establish That She Was “Disabled” Under FEHA. ........ 17 3. Plaintiff Failed To Exhaust The Required Administrative Remedies Under FEHA. ............................................................................................ 18 E. Plaintiff’s Fourth Cause Of Action For Failure To Prevent Harassment and Seventh Cause Of Action For Unfair Business Practices Fail Because They Are Not Supported By Proof Of Any Unlawful Conduct. .................................... 18 IV. CONCLUSION ................................................................................................................. 19 - 3 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 FEDERAL CASES Ellison v. Brady (9th Cir.1991) 924 F.2d 872 ....................................................................................................... 12 Hyams v. CVS Health Corp. (N.D. Cal. Dec. 12, 2019) No. 18-CV-06271-PJH, 2019 WL 6827292 .................................... 14 Maurey v. Univ. of So. Cal. (C.D. Cal. 1999) 87 F.Supp.2d 1021 ......................................................................................... 13 Rabidue v. Osceola Refining Co. (6th Cir. 1986) 805 F.2d 611 ...................................................................................................... 14 Saxton v. American Tel. & Tel. Co. (7th Cir. 1993) 10 F.3d 526 ........................................................................................................ 14 Scott v. Sears, Roebuck & Co. (7th Cir. 1986) 798 F.2d 210 ...................................................................................................... 14 Steiner v. Showboat Operating Co. (1994) 25 F.3d 1459 ................................................................................................................... 12 STATE CASES Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 ................................................................................................................ 12 Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176 .................................................................................................... 19 Alvarez v. Lifetouch Portrait Studios, Inc., No. B286910, 2020 WL 61989 (Cal. Ct. App. Jan. 6, 2020) ..................................................... 14 Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148 ................................................................................................................. 16 Doe v. Dept. of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721 ........................................................................................................ 13 Ellis v. U.S. Security Associates (2014) 224 Cal.App.4th 1213 .................................................................................................... 18 Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457 ........................................................................................................ 15 Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590 ........................................................................................................ 13 Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594 ...................................................................................................... 19 Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361 ...................................................................................................... 11 - 4 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78 ........................................................................................................ 17 Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282 ...................................................................................................... 12 Ingels v. Westwood One Broadcasting Service, Inc. (2005) 129 Cal.App.4th 1050 .................................................................................................... 19 Jones v. Dept of Corrections (2007) 152 Cal.App.4th 1367 .............................................................................................. 16, 17 Kelly v. Conco Co. (2011) 196 Cal.App.4th 191 ...................................................................................................... 13 Kim v. Konad USA Distribution Inc. (2014) 226 Cal.App.4th 1336 .................................................................................................... 18 Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342 .................................................................................................... 19 Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472 ........................................................................................................ 11 Lopez v. Baca (2002) 98 Cal.App.4th 1008 ...................................................................................................... 11 Lyle v. Warner Brothers Television Production (2006) 38 Cal.4th 264 .......................................................................................................... 13, 15 Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607 ..................................................................................................... 18 Ortiz v. Dameron Hosp. Assn., 37 Cal.App.5th 568 (2019) ........................................................................................................ 14 Potter v. Ariz. So. Coach Lines (1988) 202 Cal.App.3d 126 ........................................................................................................ 15 Reno v. Baird (1998) 18 Cal.4th 640 ................................................................................................................ 13 Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 ................................................................................................................ 11 Scotch v. Art Institute of Cal. (2009) 173 Cal.App.4th 986 ...................................................................................................... 17 Serri v. Santa Clara Univ. (2014) 226 Cal.App.4th 830 ................................................................................................ 13, 15 Shivley v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620 ...................................................................................................... 11 - 5 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860 ...................................................................................................... 13 Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995 .......................................................................................................... 16, 17 Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280 ........................................................................................................ 19 Viana v. KQED, Inc., No. A151171, 2019 WL 4201086 (Cal. Ct. App. Sept. 5, 2019) ............................................... 14 STATE CODES/STATUTES California Business and Professions Code Section 17200 ............................................................................................................................. 19 California Code of Civil Procedure, Section 437c ............................................................................................................................... 11 Section 437c(p)(2) ...................................................................................................................... 11 California Fair Employment and Housing Act ......................................................................... passim California Government Code Section 12923 ....................................................................................................................... 12, 14 Section 12926 (j)(1)(c) ............................................................................................................... 17 Section 12940, subd. (k) ............................................................................................................ 18 Section 12960, subd. (c) ............................................................................................................. 18 Section 12960, subd. (e)(3) ........................................................................................................ 18 California Labor Code Section 3600 ............................................................................................................................... 15 California’s Workers’ Compensation Act ........................................................................................ 15 - 6 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 I. INTRODUCTION. Defendant Dignity Health dba St. Mary’s Medical Center (“SMMC”) (collectively “Dignity Health”), hereby moves for the dismissal of the lawsuit filed by Plaintiff Dawnlea Bucey (“Plaintiff”) via summary judgment, or in the alternative, summary adjudication. Plaintiff generally alleges that she was subjected to sexual harassment via a hostile work environment. However, Plaintiff cannot establish a triable issue of material fact in support of her claims. Plaintiff’s First and Second Causes of Action both allege the same claim of hostile environment sexual harassment in violation of the California Fair Employment and Housing Act (“FEHA”). This claim fails because the conduct of which Plaintiff complains, while falling below Dignity Health’s standards for acceptable behavior, does not remotely reach the required standard under FEHA of “severe or pervasive” misconduct that altered the terms of Plaintiff’s employment. Plaintiff’s Third Cause of Action for Assault And Battery and Sixth Cause of Action for Negligent Infliction of Emotional Distress also fail because both Causes of Action are barred by Workers’ Compensation Exclusivity. These tort claims are based solely on conduct alleged by Plaintiff to have occurred in the workplace and within course and scope of Plaintiff’s employment. As a result, these claims may be brought only under the California Workers’ Compensation statutes. Plaintiff’s Fifth Cause of Action for Failure to Engage in the Interactive Process also fails. This claim may be brought under FEHA only by qualified individuals who are “disabled,” and Plaintiff makes no such claim. Even if Plaintiff claimed to be disabled, she still failed to exhaust the administrative remedies required under FEHA prior to bringing this claim. Plaintiff’s Fourth Cause of Action for Failure to Prevent Harassment and Seventh Cause of Action for Unfair Business Practices both fail because they are not supported by evidence of any unlawful conduct on behalf of Dignity Health. Both claims require that Plaintiff establish some underlying unlawful conduct on behalf of a defendant to support each claim, and Plaintiff has no such evidence. For these reasons, Dignity Health respectfully requests that the Court grant this motion in its entirety. - 7 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 II. SUMMARY OF UNDISPUTED FACTS. A. The Parties. 1. Dignity Health is a national health care system consisting of more than 700 hospitals and care centers. SMMC is one of these facilities. (See Separate Statement of Undisputed Material Facts in Support of Defendant’s Motion for Summary Judgment and/or Summary Adjudication (“UMF”) 1.) 2. Plaintiff is a current employee of SMMC who works as a Nurse in the Adolescent Psychiatric Department. (UMF 2.) B. Dignity Health Maintains Extensive Anti-Discrimination Policies And Complaint Procedures. 1. Dignity Health maintains extensive policies and procedures prohibiting workplace discrimination, harassment, and retaliation. Among other things, Dignity Health policies state that "Employees who believe they are being, or have been, subjected to harassment, discrimination and/or retaliatory conduct by anyone, whether a supervisor, co-employee, client, or vendor, or who are witnesses to unlawful conduct, should immediately report the facts of the incident or incidents to their immediate Supervisor/Manager, or in the alternative, the Human Resources department. Supervisors and Managers will immediately report harassment complaints to Human Resources.” (UMF 3.) 2. Plaintiff was trained during her employment on Dignity Health's anti-harassment and anti-discrimination policies, and was instructed that she should complain to a supervisor or Human Resources if she felt that she was being discriminated against, harassed or subjected to retaliation. (UMF 4.) C. Plaintiff Alleges That She Was Sexually Harassed By A Co-Worker. 1. Plaintiff claims that while employed by Dignity Health, , . Plaintiff claims that this alleged harassment took place between February 2018 and October 2019. (UMF 5.) Request for Judicial Notice (“RJN”), Ex. 1. 2. Plaintiff claims that harassing conduct included the following REDACTED REDACTED REDACTED REDACTED REDACTED - 8 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 incidents: a. Plaintiff claims that on one occasion, (UMF 6.) b. Plaintiff claims that on one occasion, (UMF 7.) c. Plaintiff claims that on another occasion, (UMF 8.) d. Plaintiff claims that (UMF 9.) e. Plaintiff claims that (UMF 10.) f. Plaintiff claims that she heard about, but did not witness, . Plaintiff did not report this alleged incident to Dignity Health when she learned of it; does not know if her coworker ever reported the purported incident to Dignity Health; and Dignity Health has no record of any report of this supposed incident. (UMF 11.) 3. On or about July 21, 2019, Plaintiff made an online complaint to Dignity Health about the conduct , stating that (UMF 12.) 4 On or about July 26, 2019, Plaintiff’s supervisor, Marie Gagnon, was informed by SMMC’s Head of Security of Plaintiff’s complaint. That same day, Ms. Gagnon spoke to Plaintiff about her complaint. Plaintiff responded to Ms. Gagnon with an email that said, in relevant part: R REDACTED REDACTED R REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED R - 9 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 “Thank you for your support in the issue. I have spoken with two of my coworkers and they said they were on board with getting the info to you that you need.” (UMF 13.) 5. On or about July 28, 2019, two other co-workers submitted online complaints about . A report on behalf of one employee complained that The other employee complained Plaintiff did not witness these incidents. (UMF 14.) 6. On or about August 22, 2019, a third co-worker submitted an online complaint about , Plaintiff did not witness this incident. (UMF 15.) 7. Plaintiff claims that a co-worker told her that Plaintiff believes her coworker reported the incident to Dignity Health, but Plaintiff does not know if the coworker actually did so. Dignity Health has no record of any report of this purported incident. Plaintiff did not witness this incident. (UMF 16.) D. Dignity Health Investigated The Complaints. 1. Dignity Health investigated the online complaints made about . Upon receipt of Plaintiff’s online complaint, . As part of its investigation, Dignity Health spoke with , each of the individuals who were allegedly harassed by , and all other persons identified as having information. (UMF 17.) E. Dignity Health Disciplined . 1. At the conclusion of the investigation, Dignity Health determined that . Dignity Health issued R REDACTED REDACTED R R REDACTED R REDACTED REDACTED R REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED R REDACTED REDACTED REDACTED - 10 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 (UMF 18.) 2. Upon , Plaintiff questioned whether her and her co- workers’ complaints were thoroughly investigated. SMMC’s Human Resources Director, Chris Clark, reviewed the investigation, and confirmed the validity of the investigation. Mr. Clark called Plaintiff and offered to meet with her to discuss his findings, but Plaintiff did not return his call. (UMF 19.) F. Plaintiff Complained Again About . 1. Approximately two months later, on or about September 29, 2019, Plaintiff claimed that she saw . At the request of Dignity Health, the SMMC Nursing Supervisor immediately went to the nurse’s station where Plaintiff and and spoke with both of them. (UMF 20.) 2. Dignity Health conducted an investigation of Plaintiff’s new complaint. denied Plaintiff’s allegations, and Dignity Health was unable to find any third party who could corroborate Plaintiff’s complaint. (UMF 21.) 3. On or about October 2, 2019, Dignity Health called a meeting with Plaintiff, Plaintiff’s Manager, the HR Manager who investigated the complaint, Dignity Health’s HR Director, and a Union Representative for Plaintiff. Plaintiff was asked whether she felt she could work with going forward. Plaintiff replied that while she did not want to work with , she could work with him going forward, and could do so professionally. (UMF 22.) 4. Plaintiff claims that in or about October 2020, s (UMF 23.) 5. To date, Plaintiff and continue to work in the same Department. Dignity Health has not received any further complaint of sexually harassing conduct by from Plaintiff. (UMF 24.) REDACTED REDACTED REDACTED REDACTED REDACTED R REDACTED REDACTED R R REDACTED REDACTED REDACTED REDACTED R R R REDACTED - 11 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 6. At no time did Plaintiff claim that as a result of conduct, she was subjected to any loss of any tangible job benefits by Dignity Health. (UMF 25.) 7. Plaintiff filed her only DFEH charge against Dignity Health on April 8, 2020. That charge makes no reference to Plaintiff having any disability, nor does it claim that Dignity Health failed to engage in any interactive process or failed to accommodate Plaintiff. (UMF 26.) 8. Plaintiff alleges in her Complaint that “each of the …defendants was the...employee… and/or alter ego of each of his, her, or its co-defendants, [and] was acting within the course and scope of said employment.” (UMF 27.) III. LEGAL ANALYSIS. A. Legal Standard On Summary Judgment. A motion for summary judgment must be granted if all the papers submitted show there is no triable issue of material fact, and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c.) On a motion for summary judgment, a defendant can meet its burden by establishing a prima facie showing there exists no triable issue of material fact as to a required element of a plaintiff's claim. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1369.) California law also recognizes the appropriateness of summary judgment “even if there are disputed factual issues, when the defendant’s showing negates an essential element of the plaintiff’s case…. [N]o amount of factual conflict upon other aspects of the case will preclude summary judgment.” (Shivley v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627.) Once a defendant has met this burden, the plaintiff must come forward with evidence necessary to prove the existence of a triable issue of material fact. (Cal. Code Civ. Proc., § 437c(p)(2).) However, the burden a plaintiff must satisfy is stringent. A plaintiff must set forth specific facts, supported by evidence, to prove the existence of a triable issue of material fact. (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Simply raising an issue of fact is not enough; a plaintiff must produce evidence which is legally sufficient to satisfy the applicable evidentiary standard of proof she must ultimately bear at trial. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487.) If the plaintiff's proffered "evidence is 'merely colorable' or is 'not significantly probative,' summary REDACTED - 12 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 judgment shall be granted." (Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1286, disapproved of on other grounds by Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) B. Plaintiff’s First And Second Causes Of Action For Hostile Environment Sexual Harassment Fail Because Plaintiff Cannot Establish The Elements Of The Claim. 1. Applicable Law. Plaintiff first two causes of action repeat the same claim; an allegation of “hostile work environment” sexual harassment under FEHA. (Request for Judicial Notice (“RJN”), Ex. 1 (Complaint), ¶¶ 30-48.) In order to establish a claim of sexual harassment based on a hostile work environment, Plaintiff must establish that: (1) a reasonable person would find a co-workers' conduct to be sufficiently severe or pervasive to alter the terms and conditions of her employment and create an abusive working environment; and (2) the employer, once apprised of the harassment, failed to take effective remedial action. (See Steiner v. Showboat Operating Co. (1994) 25 F.3d 1459, 1462-63; Ellison v. Brady (9th Cir.1991) 924 F.2d 872, 879, 881-88.)1 2. Plaintiff Cannot Establish The Existence Of “Severe Or Pervasive” Harassment That Altered The Terms And Conditions Of Her Employment. Plaintiff's claims of "hostile work environment" harassment against are based on several alleged incidents occurring in the 20 month period between February 2018 and October 2019. Those allegations are that Plaintiff also claims that she was informed by coworkers that 1Effective January 1, 2019, California Government Code section 12923 “declare[s]” the California legislature’s “intent” on how courts should review harassment claims under FEHA. (See Cal. Gov. Code § 12923.) Section 12923 is not binding on courts, but provides guidance encouraging courts to ensure that the “severe or pervasive” standard is “fairly applied.” (Id.; see also, SB 1300 (Jackson), Assembly Committee on Judiciary, Mark Stone, Chair, p. 6 (June 26, 2018 [Legislature repeatedly refers to Section 12923 as “non-binding findings and declarations.”].) R REDACTED REDACTED REDACTED REDACTED R REDACTED REDACTED - 13 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 (UMFs 6-16.) These allegations describe conduct that, if true, would be inappropriate in the workplace and unacceptable to Dignity Health. However, these allegations, even if true, do not support a claim of sexual harassment under FEHA. Plaintiff’s duty under FEHA is to establish the existence of conduct that is so sufficiently "severe or pervasive” that it “[alters] the conditions of the victim's employment and create[s] an abusive working environment." (Serri v. Santa Clara Univ. (2014) 226 Cal.App.4th 830, 869 citing Reno v. Baird (1998) 18 Cal.4th 640, 646.) To determine whether this standard is met, the Court may consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." (Id. at 870 [internal citations omitted].) In addition, in cases like this, “when a plaintiff cannot point to a loss of tangible job benefits, she must make a ‘commensurately higher showing that the sexually harassing conduct was pervasive and destructive of the working environment.’” (Lyle v. Warner Brothers Television Production (2006) 38 Cal.4th 264, 284 [quoting Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 610].) Courts routinely reject harassment claims in cases where the conduct alleged is not sufficiently “severe or pervasive,” but instead is only “occasional, sporadic or trivial.” (See, e.g., Doe v. Dept. of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 737 [holding that the following actions were “not so severe as ‘to alter the conditions of [his] employment’ or create an ‘abusive working environment’”: the supervisor criticized the plaintiff’s work during an “uncomfortable meeting,” suspected him of bringing a cell phone into work, ordered a wellness check on him, “pil[ed] work on him when he was supposed to attend a union conference,” and withheld permission to leave early to make a doctor’s appointment]; Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 878-80 [affirming dismissal via summary judgment of harassment claims where plaintiff alleged three incidents of harassing conduct]; Kelly v. Conco Co. (2011) 196 Cal.App.4th 191, 207-08 [dismissing harassment claims based on workplace hostility and aggressive and threatening comments by coworkers]; Maurey v. Univ. of So. Cal. REDACTED - 14 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 (C.D. Cal. 1999) 87 F.Supp.2d 1021, 1035-36 [two explicit comments are not sufficiently pervasive to be actionable as harassment]; Hyams v. CVS Health Corp. (N.D. Cal. Dec. 12, 2019) No. 18-CV-06271-PJH, 2019 WL 6827292, at *5 [applying FEHA section 12923 and finding that accusations that an alleged harasser came across “too aggressively” were insufficiently “severe or pervasive to alter the conditions of his employment and create an abusive work environment”]; Alvarez v. Lifetouch Portrait Studios, Inc., No. B286910, 2020 WL 61989, at *16 (Cal. Ct. App. Jan. 6, 2020) [“There is no dispute Marino’s conduct caused Alvarez emotional distress, but the evidence does not show behavior that a reasonable person working under the same conditions ‘would [have found] severely hostile or abusive.’”]; Viana v. KQED, Inc., No. A151171, 2019 WL 4201086, at *8 (Cal. Ct. App. Sept. 5, 2019) [“Harassment should not be confused with discourtesy or rudeness. . . . [T]he FEHA is not a civility code and [is] not designed to rid the workplace of vulgarity. [T]he law does not exhibit zero tolerance for offensive words and conduct. . . . courts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.”]; Ortiz v. Dameron Hosp. Assn., 37 Cal.App.5th 568, 582 (2019) [citing Section 12923 alongside established precedent on severe or pervasive standard, including that “the plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that [she] was actually offended”]; Rabidue v. Osceola Refining Co. (6th Cir. 1986) 805 F.2d 611, 615, 622 [co-workers’ vulgar and crude behavior and confrontation with plaintiff did not disrupt the workplace atmosphere][abrogated on other grounds by Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 20]; Scott v. Sears, Roebuck & Co. (7th Cir. 1986) 798 F.2d 210, 214 [isolated winks, suggestive remarks and a co-worker's request for a date with plaintiff did not constitute actionable harassment][overruled on other grounds by Saxton v. American Tel. & Tel. Co. (7th Cir. 1993) 10 F.3d 526, 533.) Here, Plaintiff does not allege that she ever was subjected to any tangible loss of job benefits by Dignity Health. (UMF 25.) Thus, Plaintiff must make a “commensurately higher showing that the sexually harassing conduct was pervasive and destructive of the working - 15 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 environment.” (Lyle, supra, 38 Cal.4th at 284 [citations omitted].) Plaintiff can make no such showing. Plaintiff instead complains about a number of incidents of alleged misbehavior occurring over approximately 20 months. While behavior did not meet the standards required by Dignity Health these interactions in no way altered the terms and conditions of Plaintiff’s employment. (See Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 463-464 [trivial or occasional, sporadic, or isolated incidents will not qualify as actionable harassment].) This is especially true because following , Plaintiff and have continued to work together occasionally without further complaints by Plaintiff . (UMFs 22, 24.) These facts do not remotely support any finding that the conduct of which Plaintiff complains was so "severe or pervasive” that it “[altered] the conditions of the victim's employment and [created] an abusive working environment." (Serri v. Santa Clara Univ., supra, 326 Cal.App.4th at 869.) As a result, Plaintiff's First and Second Causes of Action should be dismissed in their entirety. C. Plaintiff’s Third Cause Of Action For Assault And Battery And Sixth Cause Of Action For Negligent Infliction Of Emotional Distress Are Barred By Workers’ Compensation Exclusivity. 1. Applicable Law. Plaintiff next claims that Dignity Health is liable for the torts of “Assault and Battery” and “Negligent Infliction of Emotional Distress.” However, under California law these claims cannot be brought against Dignity Health in this lawsuit. Rather, where an employee claims to have suffered a workplace tort injury within the course and scope of her employment, that employee must pursue a remedy pursuant to the California's Workers' Compensation Act. (See Potter v. Ariz. So. Coach Lines (1988) 202 Cal.App.3d 126, 131.) This requirement extends to such torts as “Assault and Battery” and “Negligent Infliction of Emotional Distress.” (See e.g., Cal. Lab. Code § 3600; Potter, supra, 202 Cal.App.3d at 133 [“an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer’s decisions as intentionally outrageous, unfair, or harassing; the court will look behind the label to ascertain if the usual conditions of coverage within the exclusive remedy of workers’ REDACTED REDACTED RREDACTED REDACTED REDACTED - 16 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 compensation are satisfied”]; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 [negligent and intentional infliction of emotional distress which arises in the context of an employment relationship are absolutely barred by the exclusivity doctrine.]; Jones v. Dept of Corrections (2007) 152 Cal.App.4th 1367, 1384 [workers’ compensation exclusivity rule bars plaintiff’s claims for assault and battery and negligence occurring within the scope of the plaintiff's employment].) 2. Plaintiff’s Allegations Of Assault, Battery, and Negligent Infliction Of Emotional Distress Occurring Within The Scope Of Her Employment Are Barred By The Exclusivity Of The Workers’ Compensation Statutes. Plaintiff’s Complaint pleads claims for Assault and Battery and Negligent Infliction of Emotional Distress arising directly from workplace conduct. RJN, Ex. 1 (Complaint), ¶¶ 49-63, 81-88. The Complaint also expressly pleads that “each of the …defendants was the...employee… and/or alter ego of each of his, her, or its co-defendants, [and] was acting within the course and scope of said employment.” (UMF 27; RJN, Ex. 1 (Complaint), at ¶ 3.C. [emphasis added].) This fact is not changed by Plaintiff’s allegations that the tortious conduct was inflicted by . The California Supreme Court has observed that “the purpose of the exclusivity rule would be defeated if employees could bring actions against fellow employees acting in the scope of employment such that the fellow employee's negligence could be imputed to the employers.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1002 [internal citations omitted].) The Supreme Court also observed that “[w]e generally have held that employees' 'willful, malicious, and even criminal torts' may be committed within the scope of employment…;” (citations omitted.) For example, a demonstration of aggressive behavior in the workplace easily falls within the scope of employment: Flare-ups, frustrations, and disagreements among employees are commonplace in the workplace and may lead to “physical act[s] of aggression.” In bringing [people] together, work brings [personal] qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flareup. These expressions of human nature are incidents inseparable from working together. They involve risks of R - 17 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 injury and these risks are inherent in the working environment. (Id. at 1009; citations omitted.) As Plaintiff's tort claims all arose within the course and scope of the parties' employment, those claims may be pursued only through the Workers' Compensation system, and not through this lawsuit. (Jones, supra, 152 Cal.App.4th. at 1384.) D. Plaintiff’s Fifth Cause Of Action For Failure To Engage In The Interactive Process Fails Because Plaintiff Does Not Claim To Be Disabled And Failed To Exhaust The Required Administrative Remedies Under FEHA. 1. Applicable Law. Plaintiff’s Fifth Cause of Action alleges that Dignity Health violated FEHA by “failing to engage in the Interactive Process” with her. The problem with this claim is that Plaintiff first must establish that she was “disabled” under FEHA to prompt any obligation for Dignity Health to engage with her in any interactive process. (See Scotch v. Art Institute of Cal. (2009) 173 Cal.App.4th 986 [plaintiff must establish that she was disabled, the employer knew or should have known of a disability, and failed to engage in the interactive process].) Here, Plaintiff does not even allege in her Complaint that she was “disabled.” (RJN, Ex. 1 (Complaint).) 2. Plaintiff Cannot Establish That She Was “Disabled” Under FEHA. To establish a “disability” under FEHA, Plaintiff must demonstrate the existence of a condition that “limits a major life activity” such as “working.” (Cal. Gov. Code, § 12926 (j)(1)(c).) As a preliminary matter, Plaintiff can make no such allegation because she continues to be employed and perform her job. (UMFs 2, 25, 26.) Moreover, having problems with a single co-worker does not qualify as a “disability.” (See Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 84-85 [plaintiff's claim that she could not work with a particular co- worker “does not constitute a mental disability under FEHA.”].) Here, Plaintiff claims that she subjectively believed she suffered “mental anguish and emotional distress,” but offers no evidence that this condition prevented her from working at Dignity Health (where she still works). As a result, Plaintiff’s FEHA-based “interactive process” claim cannot proceed, and should be dismissed in its entirety. - 18 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 3. Plaintiff Failed To Exhaust The Required Administrative Remedies Under FEHA. Before pursuing any FEHA claim in a lawsuit, an administrative complaint must be filed with the DFEH within one year of the alleged unlawful action. (Cal. Gov. Code, § 12960, subd. (e)(3).) A person claiming to be aggrieved under FEHA by an alleged unlawful practice must file with the DFEH “a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department.” (Cal. Gov. Code, § 12960, subd. (c).) This statutory requirement is a “jurisdictional prerequisite to resort to the courts” and failure to do so “is ground for dismissal.” (Ellis v. U.S. Security Associates (2014) 224 Cal.App.4th 1213, 1229; see also Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613.) Plaintiff has the burden to plead and prove the timely exhaustion of administrative remedies. (See Kim v. Konad USA Distribution Inc. (2014) 226 Cal.App.4th 1336, 1345.) To date, Plaintiff never has filed any DFEH administrative charge alleging that she was disabled, or denied any “interactive process.” (UMF 26.) Plaintiff filed her only DFEH charge against Dignity Health on April 8, 2020. That charge alleges sexual harassment and identifies a number of “protected classifications,” but says nothing about any alleged disability. Plaintiff’s failure to timely exhaust her administrative remedies before commencing suit is grounds for dismissal of this claim. (See Okoli, supra, 36 Cal.App.4th at 1613.) E. Plaintiff’s Fourth Cause Of Action For Failure To Prevent Harassment and Seventh Cause Of Action For Unfair Business Practices Fail Because They Are Not Supported By Proof Of Any Unlawful Conduct. Plaintiff’s Fourth and Seventh Causes of Action allege similar claims based on alleged violations of the FEHA and unfair business practices. These claims fail because they are derivative of Plaintiff’s other failed claims. Under FEHA, it is unlawful for an employer “to fail to take all reasonable steps necessary to prevent discrimination…from occurring.” (Cal. Gov. Code, § 12940, subd. (k).) However, to prove a “failure to prevent” harassment, discrimination, or retaliation, a plaintiff first must prove - 19 - MEMORANDUM OF POINTS & AUTHORITIES ISO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALT., 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 A TK IN SO N , A N D EL SO N , L O Y A , R U U D & R O M O A P RO FE SS IO N A L C O RP O RA TI O N A TT O RN EY S A T LA W 016139.00064 35009406.1 she was subjected to harassment, discrimination or retaliation. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286-289.) No cause of action for “failure to prevent” harassment can survive where no violation of FEHA has occurred. (Id.) Likewise, Plaintiff’s Seventh Cause of Action for “Unfair Business Practices” fails for the same reasons her other claims fail. Plaintiff offers no evidence that Defendants took any action that constitutes “unfair competition.” To prevail on a claim for unfair competition under Business and Professions Code section 17200, a plaintiff must establish an unlawful, unfair, or fraudulent business act or practice. (Cal. Bus. & Prof. Code, § 17200.) The “unlawful” prong “borrows violations of other laws . . . and makes those unlawful practices actionable under the UCL.” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383 [citations omitted].) Under the “unfair” prong, a plaintiff must “tether” the unfair practice or policy to a specific constitutional, statutory, or regulatory provision. (Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1192.) The “fraud” prong may be shown if members of the public are “likely to be deceived.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 613.) Where, as here, a plaintiff cannot establish the underlying conduct on which an “unfair competition” claim is based, the Section 17200 claim also fails. (Ingels v. Westwood One Broadcasting Service, Inc. (2005) 129 Cal.App.4th 1050, 1068 [“Because the unfair competition claim utilizes the [underlying claim] as its triggering statute, if no violation of the [underlying claim] has been demonstrated, the entire action must be stricken”].) As a result, Plaintiff’s Fourth and Seventh Causes of Action should be dismissed in their entirety. IV. CONCLUSION For the reasons set forth herein, Dignity Health respectfully grants this motion for summary judgment and dismisses Plaintiff’s lawsuit in its entirety. Dated: October 27, 2021 ATKINSON, ANDELSON, LOYA, RUUD & ROMO By: Rex Darrell Berry Catherine M. Lee K. Moji Majekodunmi Attorneys for Defendant DIGNITY HEALTH dba ST. MARY’S MEDICAL CENTER