This case was last updated from Los Angeles County Superior Courts on 05/03/2020 at 11:54:05 (UTC).

ANGELA JERNIGAN VS SOUTHERN CALIFORNIA PERMANENTE MEDICAL GR

Case Summary

On 04/25/2018 ANGELA JERNIGAN filed a Labor - Other Labor lawsuit against SOUTHERN CALIFORNIA PERMANENTE MEDICAL GR. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MICHAEL L. STERN, SAMANTHA P. JESSNER and YOLANDA OROZCO. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3698

  • Filing Date:

    04/25/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MICHAEL L. STERN

SAMANTHA P. JESSNER

YOLANDA OROZCO

 

Party Details

Plaintiff and Petitioner

JERNIGAN ANGELA

Defendants and Respondents

SOUTHERN CALIFORNIA PERMANENTE MEDICAL

DOES 1-50

KAISER FOUNDATION HOSPITALS A

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

ROTHMAN JAY S. ESQ.

ROTHMAN JAY STUART ESQ.

Defendant and Respondent Attorneys

MILLER MICHELE BALLARD

CARRIGAN JOHN RICHARD

CARRIGAN JOHN RICHARD JR.

 

Court Documents

Order - ORDER [PROPOSED] JUDGMENT IN FAVOR OF DEFENDANT KAISER FOUNDATION HOSPITALS

12/6/2019: Order - ORDER [PROPOSED] JUDGMENT IN FAVOR OF DEFENDANT KAISER FOUNDATION HOSPITALS

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

11/14/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Declaration - DECLARATION OF CAROL FISKIO IN SUPPORT OF DEFENDANT KAISER FOUNDATION HOSPITALS' MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

8/26/2019: Declaration - DECLARATION OF CAROL FISKIO IN SUPPORT OF DEFENDANT KAISER FOUNDATION HOSPITALS' MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Declaration - DECLARATION OF SWETLANA "TAWNY" FLORES IN SUPPORT OF DEFENDANT KAISER FOUNDATION HOSPITALS' MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

8/26/2019: Declaration - DECLARATION OF SWETLANA "TAWNY" FLORES IN SUPPORT OF DEFENDANT KAISER FOUNDATION HOSPITALS' MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Separate Statement

8/26/2019: Separate Statement

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 08/28/2019

8/28/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 08/28/2019

Notice - NOTICE OF PLAINTIFFS NON OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

8/8/2019: Notice - NOTICE OF PLAINTIFFS NON OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Substitution of Attorney

8/8/2019: Substitution of Attorney

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME ...)

4/22/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME ...)

Order Granting Attorney's Motion to Be Relieved as Counsel-Civil

5/2/2019: Order Granting Attorney's Motion to Be Relieved as Counsel-Civil

Minute Order - Minute Order (Non-Appearance Case Review)

12/13/2018: Minute Order - Minute Order (Non-Appearance Case Review)

REQUEST FOR DISMISSAL -

6/28/2018: REQUEST FOR DISMISSAL -

ORDER TO SHOW CAUSE HEARING -

7/23/2018: ORDER TO SHOW CAUSE HEARING -

DECLARATION OF SERVICE

7/6/2018: DECLARATION OF SERVICE

Minute Order -

7/13/2018: Minute Order -

ORDER TO SHOW CAUSE HEARING

4/26/2018: ORDER TO SHOW CAUSE HEARING

SUMMONS -

4/25/2018: SUMMONS -

60 More Documents Available

 

Docket Entries

  • 12/09/2019
  • Docketat 09:30 AM in Department 31, Yolanda Orozco, Presiding; Trial - Not Held - Vacated by Court

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  • 12/09/2019
  • DocketNotice of Entry of Judgment / Dismissal / Other Order; Filed by Clerk

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  • 12/09/2019
  • DocketNotice (OF ENTRY OF JUDGMENT OR ORDER); Filed by Southern California Permanente Medical (Defendant)

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  • 12/06/2019
  • DocketOrder ([PROPOSED] JUDGMENT IN FAVOR OF DEFENDANT KAISER FOUNDATION HOSPITALS); Filed by KAISER FOUNDATION HOSPITALS, A (Defendant)

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  • 12/03/2019
  • Docketat 08:30 AM in Department 31, Yolanda Orozco, Presiding; Final Status Conference - Not Held - Vacated by Court

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  • 12/03/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 12/03/2019
  • DocketCertificate of Mailing for ((Final Status Conference) of 12/03/2019); Filed by Clerk

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  • 11/22/2019
  • DocketNotice of Ruling (RE: DEFENDANT?S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF PLAINTIFF?S CLAIMS); Filed by KAISER FOUNDATION HOSPITALS, A (Defendant)

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  • 11/14/2019
  • Docketat 08:30 AM in Department 31, Yolanda Orozco, Presiding; Hearing on Motion for Summary Judgment - Held - Motion Granted

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  • 11/14/2019
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment)); Filed by Clerk

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94 More Docket Entries
  • 05/10/2018
  • DocketFirst Amended Complaint; Filed by Angela Jernigan (Plaintiff)

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  • 05/10/2018
  • DocketFIRST AMENDED COMPLAINT FOR DAMAGES; ETC.

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  • 05/01/2018
  • DocketAMENDMENT TO COMPLAINT

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  • 04/26/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/26/2018
  • DocketORDER TO SHOW CAUSE HEARING

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  • 04/26/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/26/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 04/25/2018
  • DocketCOMPLAINT FOR DAMAGES 1. SEXUAL HARASSMENT/HOSTILE WORK ENVIRONMENT (GOVERNMENT CODE 12940, ET SEQ.); ETC

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  • 04/25/2018
  • DocketComplaint; Filed by Angela Jernigan (Plaintiff)

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  • 04/25/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC703698    Hearing Date: November 14, 2019    Dept: 31

MOTION FOR SUMMARY JUDGMENT GRANTED.

Background

On April 25, 2019 Plaintiff Angela Jernigan filed the instant action against Defendant Southern California Permanente Medical Group, Inc. and Does 1 though 40. On May 10, 2018, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for: 

  1. Sexual Harassment/Hostile Work Environment (Government Code § 12940, et seq.);

  2. Discrimination Based upon Sex/Gender (Government Code § 12940, et seq.);

  3. Discrimination Based upon Disability (Government Code § 12940, et seq.);

  4. Failure to Accommodate (Government Code § 12940(k) and (m));

  5. Failure to Engage in the Interactive Process (Government Code § 12926.1(e));

  6. Retaliation (Government Code § 12940, et seq.);

  7. Failure to Take All Reasonable Steps to Prevent Harassment, Discrimination, and Retaliation (Government Code § 12940, et seq.);

  8. Intentional Infliction of Emotional Distress; and

  9. Wrongful Termination in Violation of Public Policy (Government Code § 12940, et seq.). 

On May 16, 2018, Plaintiff filed an Amendment to Complaint (Fictitious/Incorrect Name), substituting Kaiser Foundation Hospitals for Doe 1. On June 28, 2019, Plaintiff dismissed with prejudice Defendant Southern California Permanente Medical Group, leaving Defendant Kaiser Foundation Hospitals (hereinafter “Defendant”) as the only remaining defendant.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.(

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (CCP § 437c(p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App 4th at 467; CCP §437c(c).) 

Discussion

Summary Judgment/Adjudication in Employment Cases

When deciding issues of adverse employment actions, such as retaliation, discrimination, and wrongful termination, the court applies the McDonnell Douglas shifting burdens test. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203; Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1108–09.) Under this test, “if the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing.” (Caldwell, supra at 203.) “Thus, the burdens of proof for purposes of a defendant's motion for summary judgment are precisely the same as those mandated by McDonnell Douglas.” (Id.) Therefore, the initial burden rests with the Defendant. “Once the employer makes a sufficient showing of a legitimate reason for discharge, i.e., that it had a lawful, nondiscriminatory reason for the termination then the discharged employee seeking to avert summary judgment must demonstrate either (by additional facts or legal argument) that the defendant's showing was in fact insufficient or (by competent evidentiary materials) that there was a triable issue of fact material to the defendant's showing. With respect to the latter choice, the employee must produce substantial responsive evidence that the employer's showing was untrue or pretextual. For this purpose, speculation cannot be regarded as substantial responsive evidence.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225.)

“[T]he great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.) “It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436.)

First Cause of Action for Sexual Harassment/Hostile Work Environment (Government Code § 12940, et seq.)

The Fair Employment and Housing Act (“FEHA”) makes it unlawful for an employer to “harass an employee because of the employee’s ‘sex, gender, gender identity, gender expression, . . . [or] sexual orientation.’” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1235-36 (quoting Govt. Code, § 12940(j)(1)).) “A hostile work environment sexual harassment claim requires a plaintiff employee to show: (1) he or she was subjected to unwelcome sexual advances, conduct or comments; (2) the harassment was based on sex; and (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1524; see also Taylor, supra, 222 Cal.App.4th at 1236.) “There is no recovery ‘for harassment that is occasional, isolated, sporadic, or trivial.’” (Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th 1221, 1226 (quoting Hughes v. Pair (2009) 46 Cal.4th 1035, 1043).) Whether or not the alleged conduct is sufficient to amount to harassment depends on the totality of the circumstances. (See Fuentes, supra, 200 Cal.App.4th at 1227.)

Defendant seeks summary adjudication of the first cause of action on the grounds that Plaintiff has no evidence that any purported conduct was motivated by a “discriminatory intent or motivation based on gender,” as is required to establish sexual harassment under the FEHA. Defendant presents evidence that Plaintiff has repeatedly expressed that she does not understand the alleged whistling to have been a “cat call,” or to have carried with it any sexual component. (Undisputed Material Fact (“UMF”) 14, 21.) Defendant asserts that instead, Plaintiff has described it as reflecting some efforts by others to communicate some message of which she was not aware. (UMF 14.) Defendant contends that while Plaintiff has alleged the whistling and related laughing and smirking upset her, annoying or irritating conduct is insufficient to establish a fact issue on a hostile work environment claim where there is no evidence it was motived by a plaintiff’s gender. (Guthrey v. States of Cal. (1998) 63 Cal.App.4th 1108, 1124.)

Given that Plaintiff has failed to oppose the instant motion, the Court finds that Plaintiff has failed to carry her burden to show that a triable issue of one or more material facts exists as to whether any purported conduct was motivated by a discriminatory intent or motivation based on gender.

Based on the foregoing, Defendant’s motion for summary adjudication of the first cause of action is GRANTED.

Second Cause of Action for Discrimination Based upon Sex/Gender (Government Code § 12940, et seq.) and Third Cause of Action for Discrimination Based upon Disability (Government Code § 12940, et seq.)

 

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

Defendant moves for summary adjudication of the second and third causes of action on the ground that Plaintiff cannot establish a prima facie case of discrimination as none of the circumstances surrounding any adverse employment action she suffered suggest any discriminatory motive. Defendant presents evidence that when asked at deposition whether she believed she had ever been treated unfairly, differently, or more harshly than anyone else because she was a woman, Plaintiff did not testify that she believed any disciplinary action or her termination was motivated by her sex or gender, and Flores (Plaintiff’s supervisor), Fiskio (Flores’ supervisor), and Paul (Human Resources Consultant) (each of whom are women) have testified that Plaintiff’s sex was not a factor in any employment decision. (UMF 122.) Defendant presents further evidence that with respect to her disability discrimination claim, Plaintiff conceded that she had never even told anyone in Defendant’s management about any alleged disability status, and she never requested that any disability be accommodated. (UMF 129-130.) Defendant argues that the undisputed evidence is that neither Flores, Fiskio, nor Paul ever knew or perceived Plaintiff to have been disabled. (UMF 129.)

As Plaintiff has failed to oppose the instant motion, the Court finds that Plaintiff has failed to carry her burden to show that a triable issue of one or more material facts exists as to whether any adverse employment action was motivated by discriminatory animus.

Based on the foregoing, Defendant’s motion for summary adjudication of the second and third causes of action is GRANTED.

Fourth Cause of Action for Failure to Accommodate (Government Code § 12940(k) and (m)) and Fifth Cause of Action for Failure to Engage in the Interactive Process (Government Code § 12926.1(e))

“The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009–1010.) If an employee is disabled, “the employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that (1) reasonable accommodation was offered and refused; (2) there simply was no vacant position within the employer's organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 442–443.) “[T]he reasonableness of an accommodation is an issue for the jury.” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.)

Government Code section 12940(n) makes it unlawful “[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”

“‘[T]he interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees' with the goal of ‘identify[ing] an accommodation that allows the employee to perform the job effectively. [Citations] [F]or the process to work ‘[b]oth sides must communicate directly, exchange essential information and neither side can delay or obstruct the process.’ [Citations] When a claim is brought for failure to reasonably accommodate the claimant's disability, the trial court's ultimate obligation is to ‘“isolate the cause of the breakdown . . . and then assign responsibility” so that “[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 984-985.) “However, the fact that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability under section 12940(n). If the employer is responsible for a later breakdown in the process, it may be held liable.” (Id. at 985.)

Defendant moves for summary adjudication of the fourth and fifth causes of action arguing that Plaintiff never actually requested or made known the need for an accommodation of her purported disability. Defendant presents evidence that Plaintiff admits that she never made a request. (UMF 128.) Defendant asserts that the fact that Plaintiff provided several doctor’s notes relating to days she took off as sick leave does not compel a different conclusion, as those notes contained no restrictions that would apply upon Plaintiff’s return to work. (UMF 95.) Defendant contends that in short, Plaintiff did not need and did not request an accommodation other than, at most, the sick days off that were granted. Defendant argues that given this, Plaintiff’s failure to accommodate claim fails.

Defendant asserts that similarly, Plaintiff’s claim for failure to engage in the interactive process fails for the same reason – because Plaintiff did not need any further accommodation beyond the sick leave provided, Defendant had no duty to engage in the interactive process upon her return. Defendant contends that the law does not require an employer to explore accommodations for a job the employee can already perform without any additional assistance. Defendant argues that moreover, assuming Defendant had any obligation to engage in the interactive process, Plaintiff would be unable to establish a claim, as she failed to participate in that process in good faith by failing to explain to Flores (even in response to Flores’ suggestion that she might apply for a medical leave) the need for any accommodation.

The Court finds that due to Plaintiff’s failure to oppose the instant motion, Plaintiff has failed to carry her burden showing that a triable issue of one or more material facts exists as to whether Plaintiff requested or made known the need for an accommodation of her purported disability.

Based on the foregoing, Defendant’s motion for summary adjudication of the fourth and fifth causes of action is GRANTED.

Sixth Cause of Action for Retaliation (Government Code § 12940, et seq.)

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation “drops out of the picture,” and the burden shifts back to the employee to prove intentional retaliation.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) 

“The FEHA makes it unlawful for an employer to retaliate against an employee who has opposed any discriminatory action (the “opposition” clause) or who has filed a complaint, testified, or assisted in a FEHA proceeding (the “participation” clause). [Citation.]” (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1489 (emphasis in original).) “It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA. [Citations.]” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043.)

Once an employer presents a nonretaliatory reason for the discharge, “[t]he central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus. The employer’s mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to a judgment in his favor. Thus, citing a legitimate reason for the challenged action will entitle the employer to summary judgment only when the employee’s showing, while sufficient to invoke the presumption, is too weak to sustain a reasoned inference in the employee’s favor.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.)

Defendant moves for summary adjudication of the sixth cause of action for retaliation first arguing that Plaintiff cannot meet her initial burden of proof because none of the conduct which precipitated any adverse employment action against her was protected, and her sixth cause of action for FEHA retaliation has no merit.

Defendant further asserts that even if Plaintiff could establish a prima facie case for FEHA retaliation, Defendant has provided a legitimate reason for the action. Defendant presents evidence that by her conduct between January 18 and April 1, including without limitation, taking unexcused absences on March 2 and 3, and failing to complete required training or make an appointment with the EAP counselor, Plaintiff failed to live up to the obligations in her Last Chance Agreement, which specifically provided that violations thereof could be grounds for termination, and violated Defendant’s Principles of Responsibility. (UMF 90, 112, 114-115, 119.)

Because Defendant has presented a nonretaliatory reason for the discharge, the burden shifts to Plaintiff to present evidence which as a whole would support a reasoned inference that her termination was the product of retaliatory animus. Given that Plaintiff has failed to oppose the instant motion, Plaintiff has failed to carry her burden showing that a triable issue of one or more material facts exists as to whether Defendant’s stated nonretaliatory reason for her discharge is pretext.

Based on the foregoing, Defendant’s motion for summary adjudication of the sixth cause of action is GRANTED.

Seventh Cause of Action for Failure to Take All Reasonable Steps to Prevent Harassment, Discrimination, and Retaliation (Government Code § 12940, et seq.)

“[T]he statutory language [of Section 12940 does not] support[] recovery on such a private right of action where there has been a specific factual finding that no such discrimination[, retaliation,] or harassment actually occurred at the plaintiffs’ workplace.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288-289.)

Defendant moves for summary adjudication of the seventh cause of action on the grounds that because Plaintiff cannot establish that she actually suffered any unlawful discrimination, harassment, or retaliation, her failure to prevent claim also fails. Defendant argues that moreover, the fact that Defendant maintains express policies that prohibit discrimination and harassment, and provides annual compliance training on these policies, also defeats this claim. (UMF 1-3; Barrett v. Applied Radian Energy Corp. (4th Cir. 2001) 240 F.3d 262, 266.)

Given the Court’s granting summary adjudication as to the first, second, third, and fifth causes of action for sexual harassment, discrimination based on sex/gender, discrimination based on disability, and retaliation, the Court finds that Defendant has carried its burden showing there are no triable issues of material fact as to this cause of action for failure to take all reasonable steps to prevent harassment, discrimination, and retaliation, as there can be no recovery where there has been a factual finding that no such harassment, discrimination, or retaliation actually occurred at Plaintiff’s workplace.

Based on the foregoing, Defendant’s motion for summary adjudication of the seventh cause of action is GRANTED.

Eighth Cause of Action for Intentional Infliction of Emotional Distress

“The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) “Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)

“‘An employee who suffers a disabling emotional injury caused by the employment is entitled, upon appropriate proof, to workers' compensation benefits, including any necessary disability compensation or medical or hospital benefits.’ [Citation.] “So long as the basic conditions of compensation are otherwise satisfied [citation], and the employer's conduct neither contravenes fundamental public policy [citation] nor exceeds the risks inherent in the employment relationship [citation], an employee's emotional distress injuries are subsumed under the exclusive remedy provisions of workers' compensation.” [Citations.]” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 97.)

The exclusivity rule stating that workers’ compensation is the exclusive remedy for any emotional distress suffered by a discharged employee does not bar a suit for emotional distress damages resulting from sexual harassment, unlawful discrimination, unlawful retaliation, or other misconduct that “exceed[s] the normal risks of the employment relationship.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 101.)

Defendant moves for summary adjudication of the eighth cause of action for intentional infliction of emotional distress (“IIED”) arguing that because Plaintiff’s statutory FEHA claims are meritless, Plaintiff’s IIED claim is subject to the exclusive remedy provision of the California Workers’ Compensation Act.

Given the Court’s granting summary adjudication of the first through seventh causes of action, the Court finds that Plaintiff’s cause of action for IIED is subject to the exclusivity rule stating that workers’ compensation is the exclusive remedy for any emotional distress suffered by a discharged employee, and is barred.

Based on the foregoing, Defendant’s motion for summary adjudication of the eighth cause of action is GRANTED.

Ninth Cause of Action for Wrongful Termination in Violation of Public Policy (Government Code § 12940, et seq.)

The elements of a claim for wrongful termination in violation of public policy are: (1) plaintiff's employment was actually terminated; (2) in violation of a policy that is: (a) delineated in either constitutional or statutory provisions; (b) public in the sense that it inures to the benefit of the public; (c) well established at the time of the discharge; and (d) substantial and fundamental; and (3) damages. Barbee v. Household Automotive Finance Corp. (2003) 113 Cal.App.4th 525, 533; Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426; Kelly v. Methodist Hospital (2000) 22 Cal. 4th 1108, 1112 (referencing damages from wrongful termination).

Plaintiff’s wrongful termination claim is predicated on her FEHA harassment, discrimination, and retaliation claims.

Defendant seeks summary adjudication of the ninth cause of action on the grounds that because Plaintiff cannot establish that her termination was due to her sex and/or gender or alleged disability, or in retaliation for her engaging in protected activity, or that it violated FEHA or any other constitutional provision, Plaintiff’s ninth cause of action must fail as well.

Given the Court’s granting summary adjudication of the first through eighth causes of action, the Court finds that Defendant has carried its burden showing there are no triable issues of material fact as to a violation of public policy and is entitled to judgment as a matter of law.

Based on the foregoing, Defendant’s motion for summary adjudication of the ninth cause of action is GRANTED. Defendant’s motion for summary judgment is GRANTED.

Conclusion

Defendant’s motion for summary judgment is GRANTED.