Case Number: KC067624??? Hearing Date: May 31, 2016??? Dept: O
Mays v. United Nurses Associations of California/Union of Health Care Professionals (KC067624)
Defendants United Nurses Associations of California/Union of Health Care Professionals and Deden-Castillo?s MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Respondent: Plaintiff Mays
TENTATIVE RULING
Defendant United Nurses Associations of California/Union of Health Care Professionals and Deden-Castillo?s motion for summary judgment, or in the alternative, summary adjudication is GRANTED.
STANDARD:
A defendant moving for summary judgment/adjudication has met his burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff?s cause of action cannot be established. (CCP 437c(p)(2).)
MERITS:
Defendant moves for summary judgment/adjudication of the following issues:
ISSUES 1-2:
WRONGFUL TERMINATION and DISABILITY DISCRIMINATION:
DISCRIMINATION:
FEHA prohibits an employer from taking any adverse action against a protected individual based on his or her race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age (if 40 or over), or pregnancy, childbirth, breastfeeding or related medical conditions of any female employee. (Gov.C. ?? 12926(q)(1), 12940(a)-(b),(k), 12944(a), 12945; see also 2 Cal.C.Regs. ? 7287.9 et seq.)
The following actions, if taken because of a protected characteristic, will constitute an unlawful employment practice: refusing to hire or employ; refusing to select for a training program leading to employment; discharging from employment or from a training program leading to employment; and discriminating in compensation or terms, conditions or privileges of employment. (Gov.C. ? 12940(a).) The prohibition against discrimination in ?terms, conditions, or privileges of employment? (Gov.C. ? 12940(a)) is commonly referred to as a prohibition on ?adverse employment action.? (See Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 373.) To be actionable under ? 12940 (a), the adverse treatment must be ?reasonably likely to impair a reasonable employee’s job performance or prospects for advancement? … as distinguished from minor or relatively trivial actions that are likely to do no more than displease. (Id. at 373.)
WRONGFUL TERMINATION:
The elements for wrongful termination are: 1) Plaintiff?s employment was terminated; 2) in violation of a policy that is: delineated in either constitutional or statutory provisions; public in the sense that it inures to the benefit of the public; well established at the time of the discharge; and substantial and fundamental. (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.)
BURDENS OF PROOF IN EMPLOYMENT MOTION FOR SUMMARY JUDGMENT:
When an employer seeks summary judgment the initial burden rests with the employer to show that no unlawful discrimination occurred. (CCP ? 437c(p)(2); see Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 354?355.) It may do so by evidence either negating an essential element of the employee’s claim, or showing some ?legitimate, nondiscriminatory reason? for the action taken against the employee. (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202?203.) If the employer meets this initial burden, to avoid summary judgment the employee must produce ?substantial responsive evidence that the employer’s showing was untrue or pretextual? thereby raising at least an inference of discrimination. (Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004?1005?employee must offer substantial evidence that employer’s stated reasons were pretextual or evidence that employer acted with discriminatory intent, or a combination thereof.)
A plaintiff’s ?suspicions of improper motives… based primarily on conjecture and speculation? are clearly not sufficient to raise a triable issue of fact to withstand summary judgment. (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.) Summary judgment for the employer should be granted where, ?given the strength of the employer’s showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred.? (Guz v. Bechtel Nat’l, Inc., supra, 24 Cal.4th at 362.)
However, evidence showing facts inconsistent with the employer’s claimed reasons tends to prove the employer’s discriminatory intent. (E.g., where the employer claims lay-offs were for economic reasons, evidence that only persons over a certain age were laid off raises an inference of age discrimination.) (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) ?Pretext? does not require proof that discrimination was the only reason for the employer?s action. It is enough that it was a determinative factor?i.e., that the action would not have been taken ?but for? the discriminatory intent. (See Ewing v. Gill Industries, Inc. (1992) 3 Cal.App.4th 601, 612.) An employee may also avoid summary judgment by attacking the credibility of the employer’s declarations; i.e., by demonstrating ?such weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence? and hence infer discriminatory intent. (Hersant v. California Dept. of Social Services, supra, 57 Cal.App.4th at 1005.)
Several matters insufficient by themselves to constitute substantial evidence of pretext (or discriminatory intent) may, when taken together, constitute sufficient evidence to support a finding of pretext. (Johnson v. United Cerebral Palsy/Spastic Children’s Found. of Los Angeles & Ventura Counties (2009) 173 Cal.App.4th 740, 758.)
MATERIAL FACTS RAISED BY DEFENDANT?S EVIDENCE IN THIS CASE.
Defendants bear the initial burden of establishing some ?legitimate, nondiscriminatory reason? for the action taken against the employee. Defendants here contend that Plaintiff was terminated pursuant to the disciplinary procedure set forth in the CBA between UNAC and the Staff Union, which provides that, following the issuance of a Level 4 discipline the employee ?will be required? to sign a last chance agreement. (Defense Separate Statement (DSS) 20, 339.) Refusal to do so automatically leads to termination. (DSS 376.) The only reason for Plaintiff?s discharge was her refusal to sign a last chance agreement, as required by the CBA. This was made clear to Plaintiff at the time of her termination, by both UNAC management and her own Staff Union representative. (DSS 368-374, 382-383.) The court finds Defendants have met their initial burden.
PLAINTIFF FAILS TO RAISE TRIABLE ISSUES OF ANY DISPUTED FACTS:
The burden now shifts to plaintiff to produce ?substantial responsive evidence that the employer’s showing was untrue or pretextual? thereby raising at least an inference of discrimination. Here, Plaintiff FAILS to produce any evidence. In response to Defendants? separate statement, Plaintiff merely inserted ?disputed? next to Defendants? statement of material facts, but failed to state ?the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers? (CRC 3.1350(f)(2)). None is cited. The court finds Plaintiff failed to produce evidence that would create any triable issues.
Further, by its nature, Plaintiff?s claim is preempted by Section 301 of the Labor Management Relations Act, 29 USC 185, which preempts any state-law cause of action whose resolution is ?substantially dependent? on the interpretation of a labor agreement. (Allis-Chalmers Corp. v. Lueck (1985) 471 US 202, 220; Haney v. Aramark Servs., Inc. (2004) 121 Cal.App.4th 623, 639.) Here, Plaintiff?s termination was the result of her refusal to sign a last chance agreement after receiving a Level 4 discipline, as required by the disciplinary procedure contained in Article 10 of the CBA. (DSS 14-23.) Because Defendant?s defense cannot be evaluated without interpreting the CBA, Plaintiff?s claims are preempted. Plaintiff?s opposition failed to address preemption pursuant to Sec. 301 of the Labor Management Relations Act.
Summary adjudication of Issues 1-2 is GRANTED.
ISSUES 3-4:
FAILURE TO ACCOMMODATE and FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS:
Defendant presents evidence that it fully accommodated Plaintiff?s back injury and initiated the interactive process for the alleged wrist injury. (DSS 422-436, 478, 480-481, 489-535.) Defendants have met their burden.
In opposition, despite ?arguing? that she was not accommodated, Plaintiff failed to support her contention with any evidence. Again, Plaintiff merely inserted ?disputed? next to Defendants? statement of material facts, but failed to state ?the nature of the dispute and describe the evidence that supports the position that the fact is controverted. In fact, by doing so plaintiff even disputes the basic elements of her claim by disputing her own injury and disability and employment. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers? (CRC 3.1350(f)(2)). The court finds Plaintiff failed to produce evidence that would create any triable issues.
Summary adjudication of Issues 3-4 is GRANTED.
ISSUE 5:
ASSAULT AND BATTERY:
The elements for a cause of action for ASSAULT are: 1) Defendant intentionally caused plaintiff?s immediate apprehension of a harmful or offensive contact with the plaintiff?s body; 2) plaintiff did not consent to the contact; and 3) the contact caused injury, damage, loss or harm to plaintiff, such as emotional distress. (Lowry v. Standard Oil Co. (1944) 63 Cal. App. 2d 1, 6; 5 Witkin, Cal. Pro. (4th ed. 1997) Pleading ?722.) BATTERY: The elements are: 1) Defendant intentionally committed an act resulting in a harmful or offensive contact with the plaintiff?s body; 2) plaintiff did not consent to the contact; and 3) the contact caused injury, damage, loss or harm to plaintiff. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526; Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497.) A battery is any intentional, unlawful and harmful contact by one person with the person of another. The intent necessary to constitute battery is not an intent to cause harm, but an intent to do the act which causes the harm. (Barouh v. Haberman (1994) 26 Cal. App. 4th 40, 45.)
Defendants present evidence that on 7/9/14, Deden-Castillo told Plaintiff to collect her personal belongings and instructed her not to touch her work computer on her way out of UNAC?s offices. (DSS 550-553.) Deden-Castillo then proceeded to log Plaintiff off her computer, but Plaintiff reached over Deden-Castillot and tried to log onto her computer. (DSS 567-568.) Deden-Castillo then gestured with her arms, expressing surprise that Plaintiff was trying to access the computer when she was instructed not to do so. (DSS 571-572.) In other words, Deden-Castillo shrugged her shoulders and moved her hands slightly away from her body with her palms facing upwards. (DSS 572.) Based on these facts, the court finds that Defendants have met their burden of establishing that Deden-Castillo did not have the intent to do the act that Plaintiff contends caused her harm.
In opposition, again Plaintiff merely inserted ?disputed? next to Defendants? statement of material facts, but failed to state ?the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must in clue reference to the exhibit, title, page, and line numbers? (CRC 3.1350(f)(2)). The court finds Plaintiff failed to produce evidence that would create any triable issues.
Further, the claim is barred by the exclusive remedy of worker?s compensation. (Lab. Code 3601(a).) Plaintiff failed to address the worker?s compensation exclusivity rule in her Opposition.
Accordingly, summary adjudication of Issue 5 is GRANTED.
ISSUE 6:
NEGLIGENT HIRING AND SUPERVISION:
The elements are: 1) employer’s hiring an employee; 2) who is incompetent or unfit; 3) employer had reason to believe undue risk of harm would exist because of the employment; and 4) the harm occurs. (Federico v. Superior Court (1997) 59 Cal. App. 4th 1207, 1213-14; Doe v. Capital Cities (1996) 50 Cal. App. 4th 1038, 1054; Evan F. v. Hughson United Methodist Church (1992) 8 Cal. App. 4th 828, 836.)
Defendants present evidence that it did not hire and retain Deden-Castillo. Deden-Castillo was elected Treasurer of UNAC at UNAC?s state conversion. (DSS 605.)
In opposition, Plaintiff presents no evidence in support of its ?disputed? contention.
Further, Plaintiff?s claim is preempted by Section 301 of the Labor Management Relations Act, 29 USC 185, which preempts any state-law cause of action whose resolution is ?substantially dependent? on the interpretation of a labor agreement. (Allis-Chalmers Corp. v. Lueck (1985) 471 US 202, 220; Haney v. Aramark Servs., Inc. (2004) 121 Cal.App.4th 623, 639.) Here, Plaintiff?s termination was the result of her refusal to sign a last chance agreement after receiving a Level 4 discipline, as required by the disciplinary procedure contained in Article 10 of the CBA. (DSS 14-23.) Because Defendant?s defense cannot be evaluated without interpreting the CBA, Plaintiff?s claims are preempted. Plaintiff?s opposition failed to address preemption pursuant to Sec. 301 of the Labor Management Relations Act.
Plaintiff?s claim is also barred by the exclusive remedy of worker?s compensation. (Lab. Code 3601(a).) Plaintiff failed to address the worker?s compensation exclusivity rule in her Opposition.
Accordingly, summary adjudication of Issue 6 is GRANTED.
As all issues adjudicated have disposed of all claims, Motion for Summary Judgment is GRANTED.