Filed 8/12/21 Sakellis v. Cedars-Sinai Medical Center CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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8.1115(b). This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
HELENE SAKELLIS, B300417
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC653918)
v.
CEDARS-SINAI MEDICAL
CENTER,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Dennis Landin, Judge. Reversed and remanded
with directions.
Shegerian & Associates, Carney R. Shegerian and Mahru
Madjidi, for Plaintiff and Appellant.
Proskauer Rose, Anthony J. Oncidi, Pietro A. Deserio, and
Cole D. Lewis, for Defendant and Respondent.
Plaintiff Helene Sakellis (plaintiff) sued her former
employer, Cedars-Sinai Medical Center (Cedars), alleging her
termination was motivated by age discrimination and retaliation
for raising concerns about patient care and demanding a lunch
break. The trial court granted Cedars’ summary judgment
motion, finding plaintiff was terminated for failing to adhere to
policies concerning timekeeping and updating patient charts. We
consider whether plaintiff identifies issues of material fact
requiring resolution at trial.
I. BACKGROUND
A. 2010-2015: Plaintiff Is Regarded as a Highly Skilled
Clinician but Receives Some Negative Feedback
In 1992, plaintiff began working for Cedars as a clinical
nurse in the labor and delivery unit. Beginning in 2010, and at
all times relevant to this appeal, plaintiff worked in Cedars’
mother-baby unit (also referred to as the postpartum unit).
Plaintiff asked to be transferred to the postpartum unit because,
among other things, she wanted to work with the postpartum
unit’s manager, Anna Greif (Greif), and she believed the
postpartum unit would be less stressful than other assignments.1
Plaintiff’s performance evaluations for the fiscal years
ending 2010 through 2015 uniformly praised her skills as a
clinician. She was also commended for her bedside manner. One
evaluator emphasized plaintiff was “often one of the nurses [the
1
Plaintiff had been in remission from breast cancer since
2005 and it was important to her that she be able to take breaks
to drink water and for other purposes, which she was not always
able to do in her previous assignment.
2
evaluator] select[ed] for difficult patients or patients where
service recovery [was] needed.” Colleagues
“sometimes . . . criticized [plaintiff] for spending too much time in
the room” with patients, but patients rated her highly.
One area in which plaintiff did not always meet or exceed
expectations, however, was promptly documenting the care she
provided. In 2011 and 2012, plaintiff received four “performance
counseling” memoranda for instances in which she did not timely
update patient charts.2 Two of these memoranda indicated
plaintiff’s delay resulted in inaccurate reporting of the time at
which treatment was administered. Although plaintiff’s 2013
performance evaluation stated she demonstrated “much
improvement in documenting in real time,” her 2014 evaluation
indicated that “[a]n opportunity for [plaintiff] would be to always
chart in real time—preferably at the bedside and not wait to
chart at the end of the shift.”
Another recurring theme in plaintiff’s performance
evaluations between 2010 and 2015 was praise for her strong
advocacy for patient care, though tempered by suggestions that
she adopt a more diplomatic manner when interacting with
2
In her contemporaneous responses to these memoranda,
plaintiff blamed computer “access problems” in a patient’s room,
the relevant database locking her out while she was helping a
patient use the restroom, and management’s failure to bring an
oversight to her attention during a period in which she would
have been able to correct it. In later deposition testimony in this
case, plaintiff testified the remaining memorandum did not
account for the fact that she was physically unable to complete
the relevant documentation and was placed on medical leave for
carpal tunnel syndrome on the day in question.
3
colleagues. For example, in 2010, plaintiff’s performance
evaluation noted she “finds it difficult to deal with people that are
not motivated,” but emphasized she “has patient satisfaction on
the top of her priority list” and was “[n]o doubt . . . a big part of
why we are doing so well.” In 2011, plaintiff was described as a
“stickler about paying attention to detail and reminding nurses
when something falls short,” and the evaluator encouraged her to
find ways to “improv[e] her crucial conversations with the
ancillary staff while continuing to raise the bar for excellence
without resentment.” In 2012, plaintiff’s evaluator noted she was
“never afraid to report something up the chain of command” and
emphasized that interactions with colleagues “could go smoother”
and urged “tolerance[ ] and acceptance that everyone is not the
same and that it is hard to hear about the error of your
ways . . . .” In 2013, the evaluator indicated plaintiff has “a
strong voice which she sure knows how to use.” In 2014, the
evaluator noted “a couple instances” of “behaviors that were
unbecoming of a [Cedars] employee” and urged plaintiff to
“discuss any type of concerns . . . regarding patients or staff in a
private setting and not at the nursing station . . . .” In 2015, the
evaluator stated that although plaintiff’s “intentions and
rationale on an issue or safety concern is often justified, her
delivery is not well received . . . .”
Plaintiff reported medical errors in May 2011, June 2011,
May 2012, July 2012, and October 2015, as well as violations of
patient privacy in November 2010 and September 2015.3
3
Other issues plaintiff raised during her time in the
postpartum unit include colleagues moonlighting as private
nurses in July 2010; unauthorized changes to nursing
assignments in August 2010; concerns about procedures for
4
Responses to plaintiff’s concerns fell along a spectrum including
silence, Greif telling plaintiff to communicate only with her
regarding an alleged medical error, plaintiff being urged to
present her concerns to a committee, and receiving a “Safety
Star” award.
B. 2016: Cedars Terminates Plaintiff
Plaintiff was placed on administrative leave in late May
2016 and terminated about a week later. As we shall discuss, the
stated reason for plaintiff’s termination was a claimed failure on
May 22, 2016, to comply with Cedars’ time records policy and
previous warnings regarding timely completion of patient charts.
Events occurring the previous day (May 21), however, provide
important context for plaintiff’s lawsuit.
1. May 21, 2016: Patient complaint and meal
break dispute
On May 21, 2016, plaintiff was assigned to handle the
discharge of three newborns, including “difficult” parents of a
newborn who had already “fired” (i.e., requested they no longer
be attended by) a different nurse. When the child’s father
tracking infants’ measurements in September 2011; concerns
about a colleague’s efficiency in October 2011; harassment by
another nurse in August 2012; an unelaborated “upsetting
situation” in February 2014; a question regarding Cedars’ policy
as to instructing new parents on car seat use in March 2015;
concerns about a policy allowing premature infants to be
transferred to the postpartum unit in January 2016; and
concerns about waste and proper storage of dirty linens in
February 2016.
5
complained the discharge process was taking too long, the charge
nurse took over and completed the discharge around 1:30 p.m.4
After the three discharges were complete, the charge nurse
asked plaintiff to handle another patient’s admission to the
postpartum unit. Plaintiff said she had been working without a
break for six hours and requested coverage while she took her
lunch. The charge nurse told plaintiff she was “here to work and
if [she did not] want to work she should go home.”
Plaintiff responded by calling Wayne Millican (Millican),
the hospital administrator on duty, and asked about her right to
a meal break under the Labor Code. Millican told plaintiff he
would contact the charge nurse. Plaintiff also called the labor
and delivery unit and learned the new patient’s transfer to the
postpartum unit would not proceed until a labor and delivery
nurse returned from her lunch break. After plaintiff discussed
these two conversations with the charge nurse, she was given
permission to take her lunch break.
Millican spoke to the charge nurse and several other
postpartum nurses during plaintiff’s break. The nurses told
Millican plaintiff consistently left for breaks when it was her turn
to admit a new patient. The charge nurse reiterated this
complaint in an email to Millican.
4
A few days after the newborn was discharged, Cedars
followed up with the child’s mother by telephone. Among other
things, the mother described plaintiff as “disengaged,” stated
plaintiff was not listening to her concerns, and said plaintiff was
rude to the patient’s brother-in-law who sat at plaintiff’s work
station.
6
2. May 22, 2016: Plaintiff documents patient care
after signing out of her shift
The following day, plaintiff completed a 12-hour shift and
clocked out of Cedars’ timekeeping system at 7:57 p.m. The
nurse who was taking over the care of plaintiff’s patients
reminded plaintiff that a patient had a cupcake for her, and
plaintiff sat with the patient to eat the cupcake and watch
television after she clocked out. Around 10:00 p.m., the nurse
who took over for plaintiff noticed that no feedings had been
recorded since the morning for the patient with whom plaintiff
was sitting. Plaintiff told the nurse she had not yet finished her
charting and then—between 10:14 p.m. and 10:29 p.m.—
completed the chart entries for care provided earlier in the day.
Plaintiff did not clock back in to the timekeeping system when
she finished her chart entries for the day.
Cedars’ time recording policy states that inaccurate time
recording may result in termination. Nonetheless, plaintiff and a
former colleague believed it is “common practice” for Cedars
nurses to complete patient charts after clocking out. According to
plaintiff, every one of the more than 100 nurses she knows
completed charts after clocking out because overtime was
discouraged. Plaintiff was not aware of anyone else having been
disciplined for this practice.
3. Administrative leave and termination
At a meeting on May 26, 2016, Greif notified plaintiff she
was being placed on administrative leave pending an
investigation of the patient complaint from May 21, 2016. Greif
also remarked that, thanks to plaintiff, breaks would now be
7
assigned.5 Plaintiff complained she was being punished for
escalating the meal break dispute to Millican, but Greif “got in
[her] face” and said she could not prove that. Although the
written notice placing plaintiff on administrative leave
mentioned only the patient complaint and not any concern about
plaintiff working “off the clock,” Greif told plaintiff she planned to
review relevant database entries and if she found plaintiff made
even one entry while plaintiff was off the clock, Greif could have
her terminated.
The following day, plaintiff sent an email to Cedars’ chief
nursing executive, Linda Burns Bolton (Burns Bolton), asking
whether she was aware plaintiff had been placed on
administrative leave. Burns Bolton was not aware of this, and
she asked the acting executive nursing director, Jane Swanson
(Swanson), for more information. Swanson sent Burns Bolton an
email stating Greif would be “investigating further,” but issues
known at the time included the patient complaint from May 21,
2016, and possible timekeeping issues.
About a week later, on June 1, 2016, Greif presented a
written separation notice to plaintiff. The notice cited plaintiff’s
failure to adhere to Cedars’ time records policy and previous
warnings regarding accurate recording of work (including the
four performance counseling memoranda from 2011 and 2012) as
the basis for her termination. As stated in the notice, the nurse
who assumed care for plaintiff’s patients after her shift ended on
5
Here and elsewhere, we state the facts in the light most
favorable to plaintiff, as the non-prevailing party on a motion for
summary judgment. (See generally Gund v. County of Trinity
(2020) 10 Cal.5th 503, 537, fn. 2.)
8
May 21, 2016, informed management that she “noticed
discrepancies and omissions of critical patient information.”6 The
subsequent investigation “revealed that although [plaintiff]
clocked out at 19:57 [she] continued to work[ ] until 22:29,” at
which time she recorded “18 occurrences of patient care which
should have been documented” earlier.7
During the meeting at which Greif told plaintiff she was
being terminated, plaintiff asked whether her “social issues were
taken into consideration.” Plaintiff explained she believed the
pertinent issues were that she was 60 years old, lived by herself,
supported herself, and was a breast cancer survivor. The
6
After a staff meeting on May 23, 2016, the nurse who took
over for plaintiff, Marcianne Windbeil, discussed “concerns” about
plaintiff with an assistant nurse manager at Cedars, Lauren
Flowers (Flowers). On the same day Greif placed plaintiff on
administrative leave, Flowers asked Windbeil to send her
(Flowers) a statement regarding their earlier discussion and
comments plaintiff apparently made about Windbeil’s “body art.”
Windbeil did so that same day—while she herself was not signed
in to Cedars’ timekeeping system. Windbeil’s statement
explained plaintiff had given her a report upon taking over and
Windbeil reminded her that a patient wanted to give her
(plaintiff) a cupcake. While plaintiff was in that patient’s room,
at about 10:00 p.m., Windbeil noticed records for a baby’s feeding
had not been updated since 10:00 a.m. According to Windbeil’s
statement, she asked plaintiff about the missing entries and
plaintiff said she was not finished charting yet. When Flowers
received Windbeil’s emailed statement, she forwarded it to Greif.
7
The separation notice is incorrect insofar as it suggests
plaintiff was working updating patient charts for the entirety of
this two-and-a-half hour period. The record indicates the chart
updating took place for 15 minutes.
9
appellate record does not indicate how Greif responded. When
plaintiff subsequently asked for “backup documentation”
regarding the after-hours charting incident discussed in her
separation notice, however, Greif remarked that “health care is
getting quite complicated, and sometimes it’s difficult for us older
nurses to keep up.” This was the first and only instance in which
Greif made what plaintiff construed as a derogatory remark
concerning her age.
C. Plaintiff’s Lawsuit
Plaintiff sued Cedars for retaliation in violation of
pertinent Labor Code and Health and Safety Code statutes;
discrimination and failure to prevent discrimination under the
Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940
et seq.); wrongful termination in violation of public policy;
defamation; and declaratory relief.8
Cedars moved for summary judgment or, in the alternative,
summary adjudication of various issues including the availability
of punitive damages. In addition to opposing summary judgment
on the facts, plaintiff objected that the numbering of issues in the
notice of motion for summary judgment did not match the
numbering of issues in the separate statement of undisputed
8
Plaintiff sued both Cedars and Greif for defamation. As we
shall discuss, the trial court granted Cedars and Greif’s motion
for summary judgment. Because plaintiff does not appeal the
trial court’s ruling as to the defamation claim, Greif is not a party
to this appeal. Plaintiff also does not challenge on appeal the
trial court’s rulings on her claims for disability discrimination
and retaliation under Labor Code section 6310.
10
facts. When Cedars filed a revised notice, plaintiff objected it was
not filed at least 75 days before the hearing.
The trial court overruled plaintiff’s objections and granted
the motion for summary judgment. As to plaintiff’s retaliation
claims, the trial court found plaintiff failed to make a prima facie
case that she was fired for raising concerns about patient safety
or a meal break because she did not do so in a whistleblowing
context and, in any case, there was no evidence of a causal link
between these communications and plaintiff’s termination.
Similarly, plaintiff failed to make a prima facie case of
discrimination based on her age or status as a cancer survivor.
In addition, the trial court reasoned that even if plaintiff could
make a prima facie case of retaliation or discrimination, Cedars
established legitimate reasons for plaintiff’s termination—the
timekeeping and charting issues—and plaintiff had no adequate
evidence these reasons were pretextual.
II. DISCUSSION
The trial court correctly concluded plaintiff did not raise a
material factual dispute concerning age discrimination or
retaliation based on patient advocacy, but there is a triable issue
of fact as to whether plaintiff was terminated for demanding a
lunch break. The lunch break dispute occurred just days before
plaintiff was placed on administrative leave and apparently
resulted in a policy change within the postpartum unit.
Plaintiff’s violation of Cedars’ timekeeping and charting policies
would be a non-retaliatory basis for her termination, but a
reasonable jury could find this was a common practice for which
she was singled out following the lunch break dispute—and in
retaliation therefor. We shall therefore reverse the grant of
11
summary judgment and remand solely for further proceedings on
the Labor Code lunch break retaliation claims.9
A. Plaintiff’s Procedural Objection Does Not Warrant
Reversal
Before reaching the key issues, we address plaintiff’s
argument that Cedars did not provide adequate notice of its
motion. When a party moves for summary adjudication in
addition to summary judgment, “the specific cause of action,
affirmative defense, claims for damages, or issues of duty must be
stated specifically in the notice of motion and be repeated,
verbatim, in the separate statement of undisputed material
facts.” (Cal. Rules of Court, rule 3.1350(b).) Plaintiff objected to
Cedars’ original notice of motion and separate statement of
undisputed material facts on the grounds that the issues were
listed in a different order and therefore not repeated “verbatim.”10
Cedars responded by filing a revised notice of motion a few
days before the hearing in which the numbering of the issues for
adjudication matched the numbering in the separate statement.
9
Though we conclude the trial court did not err in
summarily adjudicating plaintiff’s patient-advocacy-predicated
retaliation claims, we express no view on whether plaintiff’s
patient advocacy, and the reactions of others at Cedars to it,
would be admissible at trial as context a factfinder should be
aware of in deciding the lunch break retaliation claim.
10
Cedars maintains “all issues for adjudication were included
in the notice of motion and were stated identically to the issues
set forth in the Separate Statement.” (Emphasis added.) As we
shall discuss, we agree with the trial court’s assessment that
plaintiff was not prejudiced by any discrepancies.
12
Plaintiff objected that the revised notice of motion failed to
comply with Code of Civil Procedure section 437c, which provides
that “[n]otice of the motion and supporting papers shall be served
on all other parties to the action at least 75 days before the time
appointed for hearing.” (Code Civ. Proc., § 437c, subd. (a)(2).)
Plaintiff correctly observes that the language of Code of
Civil Procedure section 437c, subdivision (a)(2) is mandatory and
does not permit the trial court to shorten the notice period. The
point is irrelevant, however, because the trial court properly
exercised its discretion to overrule the objection to the formatting
error in the original notice. “[T]he court’s power to deny
summary judgment on the basis of failure to comply with
California Rules of Court, rule 3.1350 is discretionary, not
mandatory.” (Truong v. Glasser (2009) 181 Cal.App.4th 102,
118.) Here, the discrepancy between the original notice of motion
and the separate statement demonstrably did not hinder
plaintiff’s ability to respond. (Ibid. [trial court did not abuse its
discretion in overruling objection where “[t]he facts critical to the
ruling were adequately identified, and [the plaintiffs] ha[d] not
explained how any alleged deficiency in [the defendant’s]
separate statement of material facts impaired [the plaintiffs’]
ability to marshal evidence to show that material facts were in
dispute”].)
B. Summary Judgment Law
“‘“‘A trial court properly grants a motion for summary
judgment only if no issues of triable fact appear and the moving
party is entitled to judgment as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c); [citation].) The moving party bears the burden
of showing the court that the plaintiff “‘has not established, and
13
cannot reasonably expect to establish,”’ the elements of his or her
cause of action. [Citation.]”’” (Ennabe v. Manosa (2014) 58
Cal.4th 697, 705.)
Because direct evidence of intentional discrimination or
retaliation is rare and such claims must usually be proved
circumstantially, California courts analyze such claims by
applying the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas).
(Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th
444, 457 (Choochagi); Arnold v. Dignity Health (2020) 53
Cal.App.5th 412, 423 (Arnold).) “The McDonnell Douglas
framework is modified in the summary judgment context.” (Serri
v. Santa Clara Univ. (2014) 226 Cal.App.4th 830, 861.) “In the
summary judgment context, ‘“the employer, as the moving party,
has the initial burden to present admissible evidence showing
either that one or more elements of plaintiff’s prima facie case is
lacking or that the adverse employment action was based upon
legitimate, nondiscriminatory [or nonretaliatory] factors.”’
[Citation.] If the employer meets this initial burden, the plaintiff
must ‘“demonstrate a triable issue by producing substantial
evidence that the employer’s stated reasons were untrue or
pretextual, or that the employer acted with discriminatory [or
retaliatory] animus, such that a reasonable trier of fact could
conclude that the employer engaged in intentional discrimination
[or retaliation] or other unlawful action.”’ [Citation.]”
(Choochagi, supra, 60 Cal.App.5th at 457.)
14
C. Summary Adjudication of the Retaliation Based on
Patient Advocacy Retaliation Claims Was Proper
Plaintiff claims she was fired in retaliation for raising
concerns about patient safety and privacy in violation of Labor
Code section 1102.511 and Health and Safety Code section 1278.5.
Health and Safety Code section 1278.5 is intended “to
encourage patients, nurses, members of the medical staff, and
other health care workers to notify government entities of
suspected unsafe patient care and conditions” (§ 1278.5, subd. (a))
and prohibits health care facilities from retaliating “in any
manner” against persons who have, among other things,
“[p]resented a grievance, complaint, or report to the facility”
(Health & Saf. Code, § 1278.5, subd. (b)(1)(A)). More broadly,
section 1102.5 prohibits any employer from retaliating against an
employee who discloses a violation of a state or federal law or
regulation “to a person with authority over the employee or
another employee who has the authority to investigate, discover,
or correct the violation or noncompliance . . . .” (§ 1102.5, subd.
(b).) A prima facie case of retaliation under both Health and
Safety Code section 1278.5 and section 1102.5 requires a showing
of a causal link between protected activity and adverse
employment action. (Armin v. Riverside Community Hospital
(2016) 5 Cal.App.5th 810, 830.)
Assuming without deciding that each of plaintiff’s
communications concerning patient safety and privacy qualifies
as protected activity, the temporal proximity between plaintiff’s
communications and her termination, though somewhat
11
Undesignated statutory references that follow are to the
Labor Code.
15
attenuated, would be sufficient to establish a prima facie case of
retaliation. (§ 1278.5, subd. (d)(1) [rebuttable presumption of
discrimination when, among other things, adverse employment
action is taken “within 120 days of the filing of the grievance or
complaint by the employee”].) Case law may permit such an
inference based on even older communications. (Hawkins v. City
of Los Angeles (2019) 40 Cal.App.5th 384, 394 [gaps of six months
for one employee and 16 months for another between protected
activity and termination established causal link for purposes of
prima facie case of retaliation]; but see Le Mere v. Los Angeles
Unified School Dist. (2019) 35 Cal.App.5th 237, 243 (Le Mere)
[“[s]everal federal cases hold that intervals of more than a few
months were too long to support causation”].)
Plaintiff’s violation of Cedars’ timekeeping and charting
policies, however, is a legitimate, non-retaliatory basis for her
termination. (See generally Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 358 [“‘legitimate’ reasons [citation] in this context
are reasons that are facially unrelated to prohibited bias”].) The
question then becomes whether there is evidence of pretext
foreclosing summary adjudication. There is not.
Guz, supra, 24 Cal.4th 317 explains that evidence an
employer “lied about its reasons” for adverse employment action
does not automatically preclude summary judgment for the
employer in an age discrimination case. (Id. at 360-361 [“The
pertinent statutes do not prohibit lying, they prohibit
discrimination”].) Even if it is true that plaintiff’s termination
was not prompted by the timekeeping and charting violations (a
point we will return to later), there is no substantial evidence
that would permit a jury to find she was fired specifically in
retaliation for her patient advocacy. (King v. United Parcel
16
Service, Inc. (2007) 152 Cal.App.4th 426, 433 (King); Sangster v.
Paetkau (1998) 68 Cal.App.4th 151, 163 [“the plaintiff must
produce substantial responsive evidence sufficient to establish a
triable issue of material fact on the merits of the defendant’s
showing”].)
Plaintiff’s performance evaluations repeatedly urged her to
take a more constructive approach when criticizing colleagues to
avoid “resentment” and “push back,” but management
unambiguously appreciated her advocacy—believing it was “often
justified” and “a big part of why we are doing so well.” She was
thanked and even officially recognized for raising patient safety
and privacy concerns. Even less effusive responses, such as an
October 2015 email in which Greif asked plaintiff to forward all
correspondence regarding an alleged medical error to her, made
clear that plaintiff’s patient advocacy was welcome: Greif
indicated she would schedule a follow-up meeting in the same
email. We acknowledge the possibility that an employer may
criticize the manner or tone in which an employee raises issues in
order to chill such activity altogether, but there is no evidence
that this occurred here.12
Other evidence plaintiff cites in an attempt to show that an
inference of retaliation based on patient advocacy could be drawn
is also insufficient. Cedars’ human resources department
12
Casual remarks suggesting plaintiff was difficult to
manage—e.g., an evaluator thanking plaintiff “for making me
laugh, making me crazy[,] and most of all for helping us raise
our . . . ‘patient satisfaction and would recommend scores’”—
cannot be interpreted on this record as discouraging plaintiff’s
patient advocacy.
17
prepared a draft “final” performance counseling memorandum13
from Greif to plaintiff in November 2014 that Greif did not
recognize and that was not presented to plaintiff, but this is not
probative of Cedars’ motives in 2016. Similarly, cited incidents in
2010 when an assistant nurse manager wrongly accused plaintiff
of failing to administer a prescribed medication and wrote her up
for providing paper nail files to new mothers (which plaintiff
maintains is an accepted practice) are not probative of the
reasons for her termination in 2016. Plaintiff’s contention that
Greif and another nurse “looked for ways to discipline her” after
she reported a privacy issue in September 2015 is predicated
solely on a foundation-less, uncorroborated statement in
plaintiff’s declaration describing how plaintiff learned of the
asserted vendetta. (See, e.g., King, supra, 152 Cal.App.4th at 433
[“plaintiff’s subjective beliefs in an employment discrimination
case do not create a genuine issue of fact; nor do uncorroborated
and self-serving declarations”].) And plaintiff’s suggestion that it
was improper for Cedars to evaluate her patient care in 2014 and
2015 based on a review of medical charts as opposed to direct
observation reveals nothing of Cedars’ motives, at least without
more information about how other nurses were evaluated in
these years—particularly when the evaluators determined
plaintiff did meet performance requirements.
13
The appellate record does not disclose the substance of the
draft memorandum.
18
D. Summary Adjudication of the Age Discrimination
Claim was Proper
FEHA prohibits discriminatory employment practices,
including the discharge of an employee based on age (Gov. Code,
§ 12940, subd. (a)) and the failure to take all reasonable steps to
prevent such discrimination from occurring (Gov. Code, § 12940,
subd. (k)). Generally, a prima facie case of age discrimination
requires a showing that the plaintiff was 40 years of age or older
and performing competently when an adverse employment action
was taken, plus “some other circumstance suggest[ing]
discriminatory motive.” (Guz, supra, 24 Cal.4th at 355.) Other
circumstances suggesting a discriminatory motive may include,
for example, replacement by a significantly younger person.
(Arnold, supra, 53 Cal.App.5th at 424.)
Here, the only evidence suggesting a discriminatory motive
for plaintiff’s firing was Greif’s comment that “health care is
getting quite complicated, and sometimes it’s difficult for us older
nurses to keep up.” In assessing the probative value of such
statements, we must consider “who made the comments, when
they were made in relation to the adverse employment decision,
and in what context they were made . . . .” (Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 541 (Reid).)
Greif recommended plaintiff’s termination and made the
remark during the meeting at which she informed plaintiff she
was being terminated. Greif had not previously commented on
plaintiff’s age in the six years they worked together, however,
and it was plaintiff who first broached “social issues,” including
her age, as a reason not to fire her. Greif only referred to
plaintiff’s age when plaintiff pressed for “backup documentation”
regarding the after-hours charting incident discussed in her
19
separation notice. In context, the only reasonable interpretation
of Greif’s comment is as a misplaced attempt to soften the
proffered reason for plaintiff’s firing by emphasizing that it had
nothing to do with plaintiff’s unimpeachable clinical skills. These
circumstances cannot reasonably give rise to an inference of age
discrimination.
Plaintiff protests that Greif’s comment constitutes direct
evidence of age discrimination and no other proof is required, but
the comment is at best a stray remark. (Reid, supra, 50 Cal.4th
at 541 [“A stray remark alone may not create a triable issue of
age discrimination”], italics added.) For reasons just described,
the comment is not reasonably understood as reflecting
discriminatory animus, particularly when it came only after
plaintiff’s termination was already a fait accompli and that
termination decision was approved by others at Cedars for whom
there is no evidence of intent to discriminate on the basis of age
(DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 550
[“There must . . . be evidence of a causal relationship between the
animus and the adverse employment action . . .”]).
Because there is no triable issue as to plaintiff’s age
discrimination claim, there is no triable issue as to her derivative
claim for failure to prevent discrimination under Government
Code section 12940, subdivision (k). (See Dickson v. Burke
Williams, Inc. (2015) 234 Cal.App.4th 1307, 1318 [“There cannot
be a claim for failure to take reasonable steps necessary to
prevent sex discrimination under [Government Code] section
12940, subdivision (k) if actionable sex discrimination has not
20
been found”].) There is also no triable issue as to her derivative
claim for wrongful termination in violation of public policy.14
E. Summary Adjudication of the Lunch Break
Retaliation Claims, on the Other Hand, Was Error
Section 512, subdivision (a) provides, subject to exceptions
not applicable here, that “[a]n employer shall not employ an
employee for a work period of more than five hours per day
without providing the employee with a meal period of not less
than 30 minutes.” (§ 512, subd. (a).) Plaintiff alleges Cedars
fired her in retaliation for escalating a dispute regarding her
right to a lunch break in violation of sections 98.6 and 1102.5.
Section 98.6 prohibits retaliation against an employee “because of
the exercise . . . of any rights afforded him or her.” (§ 98.6, subd.
(a).) As pertinent here, section 1102.5 prohibits retaliation
against an employee who discloses a violation of a state or federal
law or regulation “to a person with authority over the employee
or another employee who has the authority to investigate,
discover, or correct the violation or noncompliance . . . .”
(§ 1102.5, subd. (b).)
14
Both plaintiff and Cedars suggest plaintiff’s cause of action
for wrongful termination in violation of public policy derives
generally from her retaliation and discrimination causes of
action. It does not. As stated in the operative complaint,
plaintiff’s claim for wrongful termination in violation of public
policy is based on Cedars’ alleged violation of the “fundamental
policy of the State of California that Defendants cannot
discriminate and/or retaliate against any employee on the basis
of age or medical condition, among other things.”
21
To establish a prima facie case of retaliation under sections
98.6 or 1102.5, a plaintiff must demonstrate a causal link
between protected activity and adverse employment action. (St.
Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 314.) Here,
plaintiff did so by producing evidence that the charge nurse told
her she could not take a lunch break, she called Millican to
intervene, her complaint resulted in a change to the postpartum
unit’s meal break policies, and she was placed on administrative
leave less than a week later.
Cedars halfheartedly argues plaintiff’s call to Millican was
not protected activity because she was ultimately permitted to
take a lunch break. Relatedly, the trial court also believed
plaintiff had not made a prima face case of Labor Code retaliation
because her communications with Millican and Greif were
“routine” workplace communications. Neither point is correct.
As to the first point (the argument plaintiff was ultimately
permitted to take a break), section 98.6 prohibits retaliation
against an employee for exercising their rights—not for enduring
a violation of their rights. (§ 98.6, subd. (a).) Similarly, section
1102.5 prohibits retaliation against an employee who reports a
violation to a person with authority to correct it—regardless of
whether the latter does so. (§ 1102.5, subd. (b).) From a practical
standpoint, the notion that an employee who wins a concession
from their employer cannot, by definition, be subject to unlawful
retaliation would render anti-retaliation statutes toothless
against any employer capable of basic strategy.
The temporal proximity between plaintiff’s call to Millican
and her administrative leave (less than a week later) and
termination (less than two weeks later) is alone sufficient to
establish the requisite causal relationship for purposes of
22
plaintiff’s prima facie case.15 (Le Mere, supra, 35 Cal.App.5th at
243 [“Notwithstanding the absence of direct evidence of
retaliatory animus, close temporal proximity between a plaintiff’s
protected activity and the alleged retaliatory conduct against the
plaintiff has been found sufficient to support a prima facie case of
causation”]; but see id. at 243 [“A gap of two years is not
sufficient as a matter of law to support an inference of
causation”].)
As to the second point (whether plaintiff’s call was
“routine”), the circumstances of plaintiff’s call to Millican are
entirely different than a school principal’s disclosure of student
complaints regarding teachers to district administrators in
Patten v. Grant Joint Union High School Dist. (2005) 134
Cal.App.4th 1378, which the Court of Appeal described as
“routine” and held to be unprotected activity. (Id. at 1385.) The
routine manner in which plaintiff requested a lunch break was to
speak with the charge nurse. Her call to Millican was a deviation
from this norm that she understood to be warranted because the
charge nurse told her she could not take the meal break to which
she was entitled under section 512. Millican’s response resulted
in plaintiff being allowed to take her meal break and a change to
the postpartum unit’s meal break policies. Cedars’ contention
that calling the administrator on duty “was the normal procedure
when there was a dispute” (emphasis added) rests on the premise
that any workplace complaint raised through prescribed channels
15
The authority the trial court relied on to reach a contrary
conclusion discusses the sufficiency of temporal proximity to
establish pretext at the third stage of the McDonnell Douglas
analysis. (Diego v. Pilgrim United Church of Christ (2014) 231
Cal.App.4th 913, 932 (Diego).)
23
cannot qualify as protected activity. That is not the law. (See,
e.g., Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 55-56
[holding that a plaintiff’s emails to his employer’s human
resources department constituted protected activity for purposes
of FEHA retaliation claim].)
Plaintiff therefore made out a prima facie case of section
98.6 and section 1102.5 retaliation, and there is also evidence
revealing a triable issue of material fact as to whether Cedars’
proffered timekeeping and patient charting reasons were mere
pretext for Labor Code-prohibited retaliation. Specifically, while
the temporal proximity between the call to Millican and
plaintiff’s firing is not alone sufficient to raise a triable issue as to
pretext (Diego, supra, 231 Cal.App.4th at 932), it is sufficient
when combined with other evidence in the record.
Plaintiff and a former colleague both stated it was a
common practice among Cedars nurses—indeed, according to
plaintiff, a pervasive practice—to complete patient charts after
clocking out, and Cedars produced no evidence of others having
been disciplined.16 This is evidence a jury could rely on to find
Cedars’ proffered reason for firing plaintiff pretextual.
(Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 817
[“evidence that [an employee] was treated differently from others
who were similarly situated” supports finding of pretext].) The
shifting reasons for disciplinary action against plaintiff over the
course of one week further support an inference of pretext. (See,
16
As additional evidence of Cedars’ failure to insist that all
work activities be performed while “on the clock,” plaintiff also
highlights Windbeil’s compliance with Flowers’s request for a
written statement regarding plaintiff while “off the clock”—
without any disciplinary repercussions.
24
e.g., Guz, supra, 24 Cal.4th at 363 [“in an appropriate case, an
inference of dissembling may arise where the employer has given
shifting, contradictory, implausible, uninformed, or factually
baseless justifications for its actions”], italics added.) Greif’s
remark that she planned to review plaintiff’s time records when
she first placed plaintiff on administrative leave suggests she was
seeking a stronger reason to discipline her.17 In addition, Greif’s
comment “thanking” plaintiff for prompting a change in meal
break policy (which, construed in the light most favorable to
plaintiff, was sarcastic) supports an inference that Greif and
others in the postpartum unit were embarrassed or annoyed by
plaintiff’s call to Millican and the changes it prompted—and
retaliated against her because of it.
F. Punitive Damages
Cedars also sought summary adjudication of whether
plaintiff was potentially entitled to punitive damages. Because
the trial court granted summary judgment, it did not rule on this
request for summary adjudication. Plaintiff asks us to hold in
context of this appeal that there is a triable issue as to whether
she is entitled to punitive damages. We decline. The trial court
is well equipped to address in the first instance whether there is
evidence of malice, fraud, or oppression, that satisfies the higher
clear and convincing standard of proof (and any other associated
issues). (Szarowicz v. Birenbaum (2020) 58 Cal.App.5th 146, 171
17
The lack of evidence that Cedars disciplined (or even
solicited patient feedback regarding) the other nurse with whom
the difficult patient clashed supports the inference that the basis
for plaintiff’s administrative leave was itself pretext.
25
[“The standard for a motion for summary adjudication on a claim
for punitive damages is whether clear and convincing evidence
exists to support that claim”].)
DISPOSITION
The judgment is reversed and the matter is remanded to
the trial court with directions to vacate the order granting
summary judgment and enter a new summary adjudication order
consistent with the views expressed in this opinion. The parties
shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
26