Zuniga v. Community Medical Centers

30, 2024 and the May 17, 2022 Judgment Confirming Final Arbitration Award in Fresno Superior Court Case Number 16CECG00071, but only for their existence.

Merits

Burden on Summary Judgment/Adjudication

A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c).) In determining a motion for summary judgment, the court views the evidence “in the light most favorable to the plaintiff”, liberally construing plaintiff’s evidence and strictly scrutinizing the defendant’s evidence. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.) The court does not weigh evidence or inferences (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856), nevertheless, the court shall consider all inferences reasonably deducible from the evidence unless it is controverted by other inferences or evidence. (Code Civ. Proc., § 437c, subd. (c).) Doubts as to whether there is a triable issue of fact are resolved in favor of the opposing party. (Ingham v. Luxor Cab Co., supra, 93 Cal.App.4th 1045, 1049.)

Summary adjudication is the proper mechanism for challenging a particular, “cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 242.) However, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1); see also Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97 [piecemeal adjudication prohibited].)

Pleadings Define the Scope

Defendant notes that plaintiff attempts to expand what is alleged in his complaint by way of his opposition to this motion. On summary judgment, the pleadings define the scope of the issues to be resolved. (Hutton v. Fidelity National Title Co., (2013) 213 Cal.App.4th 486, 493; Miller v. Department of Corrections & Rehabilitation (2024) 105 Cal.App.5th 261, 286.) To the extent the pleadings did not state sufficient facts to state a cause of action, but were not the subject of a demurrer, the court will consider evidence where such cause of action appeared in the complaint.

Burden Shifting in Employment Discrimination Cases

Special rules govern allocation of the burden of proof on motions for summary judgment in employment discrimination cases, under both federal and state law, and state courts follow the approach taken by federal courts in these cases. The test uses a system of shifting burdens. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-355.) It is intended to sharpen the inquiry into the factual question of intentional discrimination. When the employer seeks summary judgment, the initial burden rests with the employer to show that no unlawful discrimination or retaliation occurred. (Guz v. Bechtel Nat. Inc., supra, 24 Cal.4th at p. 354-355.) It does this first by showing that the employee's action has no merit. (Ibid.) It may do so by evidence that either: 1) negates an essential element of the employee's claim; or 2) shows some “legitimate, nondiscriminatory reason” for the 12

action taken against the employee. (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 (internal quotes omitted); University of So. Calif. v. Sup.Ct. (Miller) (1990) 222 Cal.App.3d 1028, 1036.) In determining whether these burdens were met, the court must view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing his evidence while strictly scrutinizing defendant's evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)

Discrimination

The Fair Employment and Housing Act (“FEHA”) makes it an unlawful employment practice to discriminate against a person because of a physical or mental disability. (Code Civ. Proc., § 12940, subd. (a); Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) In order to show a prima facie case of disability discrimination under FEHA, an employee must show 1) she suffered from a disability, 2) she could perform the essential job duties with or without reasonable accommodations, and 3) that she was subjected to adverse employment action because of the disability. (Faust v. California Portland Cement Co., supra, 150 Cal.App.4th at p. 886.) Defendant argues that plaintiff’s disability claim fails because he cannot establish a causal nexus and because there was a legitimate, non-discriminatory reason for his termination.

In order to avoid summary judgment, a plaintiff must produce substantial evidence of a pretext. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.) Speculative evidence is insufficient. (Id. at p. 808.) Neither are “uncorroborated and self-serving declarations.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) The ultimate question is whether the motivation for the termination was discriminatory. (Guz v. Bechtel Nat. Inc., (2000) 24 Cal.4th 317, 358.)

An employee must show “weaknesses, implausibilities, 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’.” (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 75, quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) Where an employee presents that the employer had mixed motives, both legitimate and discriminatory, the employee must show that a disability was a substantial motivating factor in the termination decision. (Lin v.

Kaiser Foundation Hospitals (2023) 88 Cal.App.5th 712, 722.)

Defendant asserts that there is no causal nexus between plaintiff’s injury in 2015 and his termination in 2021. Here, it is undisputed that plaintiff was electrocuted in October 2015 while he was at work. (UMF No. 2.) It is also undisputed that plaintiff was terminated on June 16, 2021. (UMF No. 28.) Defendant argues that there is no causal nexus where plaintiff’s injury occurred six years prior to his termination. Plaintiff counters that his injury resulted in permanent disabilities. (PSS No. 2.) He further contends that he made requests for modified work consistent with his medical restrictions. (PSS No. 8.) Plaintiff asserts that just days prior to being placed on leave, he spoke with a supervisor 13

about his medical restrictions. (PSS. No. 9.) Thus, plaintiff has connected issues with modified work consistent with his medical restrictions and his termination, despite the length of time between the initial injury and the termination.

Defendant asserts that plaintiff was terminated because of misconduct. In May 2021, defendant received complaints that plaintiff was shouting, cursing, and exhibiting hostility toward his team leader. (UMF No. 20.) Sara White investigated the complaints. (UMF No. 24.) Defendant asserts the investigation substantiated the complaints. (UMF No. 25.) As a result, Human Resources recommended termination. (UMF No. 26.) Based on this recommendation, Stan Zulewski and Dru Walker decided to terminate plaintiff’s employment. (UMF No. 27.)

Plaintiff does not dispute getting into an argument with a coworker in May 2021. However, plaintiff asserts that this behavior was not one-sided and that his co-worker was an active participant. (UMF No. 21.) Plaintiff challenges the validity of the investigation and its findings. (UMF No. 25.) He argues that he was never provided an opportunity to review video footage of the incident. (UMF No. 25.) Defendant had asserted that this video footage no longer existed, but it was found after the opposition here was filed.

Plaintiff asserts that while he yelled and used profanity, he did not get in his co-worker’s face during the argument. (PSS No. 83.) Plaintiff also asserts that yelling and profanity were commonplace at work. (PSS Nos. 103-106.)

Ultimately, plaintiff’s evidence is speculative with regard to his assertions of pretext in the context of disability discrimination. Summary adjudication is granted as to the first cause of action.

FEHA Retaliation

Plaintiff’s second cause of action is for retaliation pursuant to Government Code section 12940, subdivision (m). Government Code section 12940, subdivision (m) prohibits employers from retaliating where an employee seeks accommodation. FEHA prohibits an employer from terminating an employee based on that employee’s opposition to prohibited practices under FEHA. (Vines v. O’Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174, 185.) To show such retaliation, a plaintiff must show 1) he engaged in a protected activity, 2) that he suffered an adverse employment action, and 3) a causal link between the protected activity and the adverse employment action. (Ibid.)

There is no requirement that the conduct actually be discriminatory, only that the employee has complained of something the employee believes to be discriminatory. (Ibid.) Once the employee has made a prima facie showing, then the burden shifts to the employer to show a legitimate, nondiscriminatory reason for the adverse action. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.) Where the employer does this, the employee must then show either pretext or that the “evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.” (Light v.

Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94.)

Here, as discussed above, plaintiff has presented only speculative evidence of pretext in the context of disability discrimination. Summary adjudication is granted as to the second cause of action.

Failure to Prevent 14

Defendant argues that the cause of action for failure to prevent discrimination fails because it cannot survive the lack of a successful disability claim. Government Code section 12940, subdivision (k), makes it an unlawful employment practice to fail to take reasonable steps to prevent discrimination. As discussed above, plaintiff has not sufficiently demonstrated his discrimination claims. Summary adjudication is granted as to the third cause of action.

Labor Code section 1102.5 Retaliation

Labor Code section 1102.5 prohibits retaliation by employers for engaging in a protected activity. The California Supreme Court in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712 has clarified that Labor Code section 1102.6, not McDonnell Douglas, “supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims.” First, there must be a showing by a preponderance of the evidence that an employee’s protected activity was a contributing factor to an adverse employment action. (Ibid.)

Then, the employer must show by clear and convincing evidence that the adverse employment action would have occurred for legitimate and independent reasons even if the employee had not engaged in the protected activity. (Ibid.) Plaintiffs may satisfy their burden even when legitimate reasons contribute to an adverse employment action. (Id. at pp. 713-714.) Plaintiff also need not show the employer’s reason was pretextual. (Id. at p. 716.)

Relevant here is a subpoena plaintiff received regarding testifying in a discrimination case brought by another employee against defendant. (UMF No. 38.) Defendant asserts that this is not protected activity because plaintiff ultimately did not testify. However, Labor Code section 1102.5, subdivision (b) notes that a belief the employee will disclose information is sufficient. Thus, the fact that plaintiff did not end up providing testimony against defendant does not alter the applicability of the code section here.

Here, defendant argues that decisionmakers were unaware of the subpoena or plaintiff’s plans to testify. However, plaintiff notes that defendant included Walker, a named defendant in the matter in which plaintiff’s testimony was anticipated, as a decisionmaker. (UMF Nos. 52-53.) It is undisputed that plaintiff provided the subpoena to Harry Boe and Butch Garrison in order to request the time off work. (UMF No. 41.) While defendant asserts that no one at the hospital know of plaintiff’s plans, plaintiff asserts that he informed Boe and Garrison of his intent to testify. (UMF No. 43.)

Additionally, defendant concedes that White knew of the request for time off to testify. (UMF No. 46.) Plaintiff asserts that three of the four people involved in the decision to terminate him were aware that he requested time off to testify. (UMF Nos. 46-47, 49-50, 52-53.) One of those decisionmakers was a named defendant in the action. (UMF Nos. 52-53.) Thus, plaintiff has met his burden.

Defendant has not met its burden in showing clear and convincing evidence that the termination would have occurred even if plaintiff had not been subpoenaed to testify. This is particularly evident where defendant’s own evidence appears to contradict itself with regards to the knowledge possessed by each decisionmaker.

Summary adjudication is denied as to the fourth cause of action.

Wrongful Termination

Defendant argues that the wrongful termination claim fails because plaintiff cannot show his termination was motivated by an unlawful reason. Plaintiff has presented triable issues of fact with regard to the Labor Code section 1102.5 claim. As such, summary adjudication is denied as to the fifth cause of action.

Punitive Damages

A party may move for summary adjudication as to a claim for punitive damages. (Code Civ. Proc., § 437c, subd. (f)(1).) A grant of summary adjudication on the issue of punitive damages must go to the entire claim. (Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97.)

Defendant argues that plaintiff cannot recover punitive damages because Walker and Zulewski are not officers, directors, or managing agents for defendant and no one at the hospital acted with oppression, fraud, or malice. A managing agent is one who exercises “substantial independent authority and judgment” over “significant aspects of a corporation’s business.” (Davis v. Kiewit (2013) 220 Cal.App.4th 358, 366.) Here, plaintiff presents triable issues on the question of whether Walker and Zulewski were managing agents. Both had the authority to accept or reject the recommendation made by Human Resources. (UMF Nos. 56-60.) With regard to the question of acting with oppression, fraud, or malice, in light of the denial of adjudication on the Labor Code claims, the court denies adjudication here.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 05/13/26. (Judge’s initials) (Date)

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