Filed 6/30/22 Ransford v. So. Cal. Permanente Medical Group CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CARRIE RANSFORD, B309713
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.19LBCV00325)
v.
SOUTHERN CALIFORNIA
PERMANENTE MEDICAL GROUP,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael P. Vicencia, Judge. Affirmed.
Law Offices of Gavril T. Gabriel and Gavril T. Gabriel for
Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza and Amy E. Rankin for
Defendant and Respondent.
INTRODUCTION
Carrie Ransford sued her former employer, Southern
California Permanente Medical Group (SCPMG), for wrongful
termination and other claims. Ransford alleged that SCPMG
discriminated against her due to a disability and for taking
medical leave. SCPMG moved for summary judgment,
presenting evidence that Ransford was terminated as a result of
a long history of unsatisfactory job performance, including
communication problems with patients and staff. The trial court
granted SCPMG’s motion.
We affirm. The evidence Ransford presented did not meet
her burden to show that SCPMG acted with discriminatory
animus or that the reasons for her termination were pretextual.
FACTUAL AND PROCEDURAL BACKGROUND
A. Complaint
Ransford filed a complaint alleging causes of action for
wrongful termination, intentional infliction of emotional distress,
negligent infliction of emotional distress, failure to pay wages due
upon termination (Lab. Code, § 201), and waiting time penalties
for failure to pay wages due upon discharge (Lab. Code, § 203).1
Ransford alleged she began working for SCPMG in September
1999 as a licensed vocational nurse (LVN). She was on medical
leave on the following dates: July 21, 2015 to August 8, 2015;
September 14, 2015 to October 18, 2015; November 19, 2015 to
December 16, 2015; December 28, 2015 to August 22, 2016; and
August 31, 2016 to January 22, 2017. Ransford alleged that on
January 26, 2017, she received a “Corrective Action Level 4
1 Ransford also alleged a cause of action for unfair business
practices (Bus. & Prof. Code, § 17200, et seq.), but she later
abandoned that claim.
2
write-up” that included allegations dating back to 2015. On
February 10, 2017, she was suspended following an incident in
which she relayed medication instructions to a patient, and was
later accused of giving incorrect information to the patient.
Ransford remained suspended until her employment was
terminated on May 24, 2017.
Ransford alleged that her disability and time on medical
leave were substantial motivating reasons for her termination,
and that she was terminated “because of her disability.” She also
contended that although she took three days of bereavement
leave in August 2016, she was only paid for one day. She prayed
for compensatory damages, punitive damages, penalties, costs,
and attorney fees.
B. Motion for summary judgment
1. Motion
SCPMG moved for summary judgment. (Code Civ. Proc,
§ 437c.) It stated that Ransford began working as an LVN with
SCPMG in 1999. In January 2015, she transferred to the
Healthy Heart Clinic (HHC) at the South Bay Medical Center,
which treats patients with a history of heart failure. Ransford’s
job duties included addressing and monitoring patients’
conditions, and notifying health care professionals for disposition;
“rooming” patients on arrival, which consists of taking patients to
examination rooms and taking their vitals; providing medical
information and education to patients; and “performing other
duties as directed by medical providers.” Ransford’s supervisors
were Ruthie Goldberg and Demetria Flores. SCPMG asserted
that the following incidents occurred while Ransford was working
at the Healthy Heart Clinic.
3
In April 2015, a patient’s spouse reported to Ransford that
the patient was suicidal. Ransford conveyed the message to the
medical care provider, but she did not mark the message urgent,
as she was expected to do.
On April 22, 2015, a patient presented with a low blood
oxygen saturation level. Ransford did not immediately inform
any medical provider of the patient’s blood oxygen saturation
level.
On May 1, 2015, a patient complained to Ransford about
chest pains. Ransford sent a message conveying the patient’s
complaint, but did not mark the message urgent as she was
expected to do.
On May 15, 2015, nurse practitioner Linda Bojorquez
reduced a patient’s dosage of furosemide to one 20-milligram
tablet per day. When the patient’s wife called on May 18 to
inquire about the correct dosage, Ransford incorrectly told the
patient to take two 20-milligram tablets per day.
In May 2015, Bojorquez asked Ransford to cancel one
patient’s appointment and move another patient’s appointment.
Ransford complied, but failed to notify the patients of the
changes. When one patient arrived for the originally scheduled
appointment, the patient was upset about not being informed
about the change.
On June 4, 2015, Bojorquez asked Ransford for information
about a patient, and Ransford refused to relay the information,
saying it was written down in another room.
In June 2015, Goldberg noticed that Ransford was rooming
patients at a low rate. Goldberg stated in a declaration that some
patients “were roomed by HHC medical providers themselves.
HHC medical providers should not have to take the time to room
4
their own patients, as it takes time away from the higher level
scope of their job duties.”
On July 1, 2015, Bojorquez asked Ransford to follow up
regarding a patient. Ransford replied in a disrespectful manner
that it was not her responsibility.
On July 2, 2015, Flores asked Ransford to document which
phone numbers she used to make follow-up calls. Ransford
“rolled her eyes” and complained “in an adamant and defensive
manner” that she was being micromanaged. Flores also stated in
her declaration that Ransford often rolled her eyes when she was
told to do something she did not want to do.
On July 17, 2015, Ransford, Flores, Goldberg, and a union
representative met to discuss these complaints against Ransford,
and to tell Ransford that management expected to see
improvement. Goldberg stated in her declaration that additional
meetings with Ransford were scheduled for July 23 and 30.
However, Ransford took medical leave from approximately July
21, 2015 to August 2, 2015 and from September 14, 2015 to
October 18, 2015. Goldberg stated that because of Ransford’s
leaves, the scheduled meetings never took place.
On November 9, 2015, Bojorquez asked Ransford to room a
patient, and Ransford did not do it.
On November 10, 2015, Ransford messaged Bojorquez to
take a phone call from a doctor. Bojorquez, who was on another
phone call with a doctor, messaged back to ask for clarification as
to whether the caller was a patient; Ransford responded that it
was a doctor. While Bojorquez was on the phone, Ransford
entered the room and said to her, “You really make me look
stupid. What part of doctor do you not understand?”
5
Ransford took leave from November 19 to December 16,
2015, from December 28, 2015 to August 22, 2016, and from
August 29, 2016 to January 21, 2017. On March 9, 2016, while
on leave, Ransford went to the HHC to visit with coworkers,
bringing what she claimed was a service dog. A department
administrator, Hector Garcia, questioned why Ransford was in
the back office with a dog. Garcia threatened to call security, and
Ransford left.
On January 27, 2017, Ransford received a Level 4
Corrective Action concerning the complaints dating back to 2015.
Goldberg stated in her declaration that a meeting regarding this
corrective action was not held earlier due to Ransford’s extended
leaves and Goldberg’s inability “to coordinate my schedule and
the schedule of Human Resources and union representation to
proceed appropriately with the corrective action process.” On
January 31, Ransford signed a related “last chance agreement”
stating that she would complete tasks as assigned, use good
communication skills, and not act inappropriately.
On February 7, 2017, pharmacist Leslie Idos left a message
for a patient to discontinue taking furosemide for three days.
Idos stated in her declaration, “I was nearby when the patient’s
wife called back and spoke to Ms. Ransford. . . . I heard Ms.
Ransford say, ‘He is due for his evening dose of Furosemide a half
of a tablet tonight?’ [Ransford] then said: ‘He can take his half
tablet dose of Furosemide this evening. Hold the Furosemide on
Wednesday and Thursday.’ This instruction contradicted my
message to the patient and placed the patient at risk of serious
harm from kidney damage.” Idos called the patient back and
instructed that he should not take the furosemide for three days.
When Idos confronted Ransford an hour after the call, Ransford
6
became defensive and claimed she did not recall what she told
the patient, which Idos found “not credible.”
The following day, Idos told Goldberg and Flores that she
“could not trust Ms. Ransford to convey messages, and that her
actions demonstrated a lack of competency and ability to be
cognizant of what Ms. Ransford was telling patients.” Goldberg
stated in her declaration that when she discussed the issue with
Ransford a week later, she also found Ransford’s lack of memory
about the incident not credible. Ransford was suspended with
pay on February 10, 2017. Goldberg stated in her declaration,
“Ms. Ransford’s error could have resulted in severe harm to the
patient. I also determined that Ms. Ransford’s actions violated
her last chance agreement. Considering the severity of Ms.
Ransford’s conduct and her continued pattern of lack of good
judgment, I decided to terminate Ms. Ransford’s employment.”
Ransford’s employment was terminated on May 24, 2017.
SCPMG argued that Ransford could not establish that
discrimination was a substantial motivating factor for SCPMG’s
actions. SCPMG pointed out that when Ransford was asked in
her deposition, “Do you believe that you had a medical condition
that people used to treat you differently?” she answered, “No.”
Ransford also testified, “I don’t believe they terminated me
because they didn’t like me or like the way I worked. I believe
they terminated me for accusing me of a mistake, a medication
error, and putting a patient at risk, and I don’t feel I’m a risk to
patients whatsoever and I don’t agree that that happened.”
SCPMG argued that Ransford was not performing her duties
competently, it had legitimate business reasons for terminating
her, and she could not demonstrate that SCPMG’s reasons were
pretextual. SCPMG further asserted Ransford could not
7
establish the intentional and negligent infliction of emotional
distress causes of action for the same reasons, and that those
causes of action were barred by workers’ compensation
exclusivity.
Regarding Ransford’s wage claims, SCPMG asserted that
Ransford’s employment was governed by the collective bargaining
agreement (CBA) between SCPMG and the United Healthcare
Workers union. SCPMG argued that Ransford was required to
comply with the terms of the CBA regarding wage claims, which
required her to file a grievance for “any dispute concerning
wages.” The CBA stated that a grievance “shall be initiated . . .
by the submittal of a grievance form from the union to facility
human resources and copied to the involved supervisor.” A
declaration from the human resources consultant for the Healthy
Heart Clinic stated that Ransford never filed a grievance for
unpaid wages or bereavement leave. SCPMG asserted that
Ransford’s failure to follow CBA procedures was fatal to her
claims for unpaid wages.
2. Opposition
In Ransford’s opposition, she asserted that “none of the
incidents listed on the Level 4 occurred as SCPMG alleges.”
Ransford stated that although she met with Flores, Goldberg,
and a union representative in July 2015, the supervisors “told me
generally that there had been complaints about my work, but
they did not describe any specific incidents or particular
patients.” Ransford said she left the short meeting “with the
impression that they wanted to see improvement, but not that
they were considering any serious corrective action.”
Ransford explained that she took leave after she injured
her back at work. She tried to return to work several times, but
8
bending, twisting, and lifting were “still causing tremendous
pain.” Ransford stated that during the times she was working
between leaves from August 2015 to August 2016, no one told
Ransford they wanted to meet with her again regarding her work
performance. It was only after she returned from leave in
January 2017 that her supervisors said they wanted to discuss
her work performance.
Ransford stated in her declaration that in the January
2017 meeting, the 2015 incidents “occurred such a long time ago
and were so vaguely drafted that I could not understand what my
supervisors were referring to.” However, in her opposition
Ransford asserted that in the April 2015 incident in which the
patient was suicidal, she immediately verbally informed a
medical provider about the issue. Ransford also argued that
comparing the rate at which another employee roomed patients
was misleading, because the other employee was a medical
assistant, not a nurse, and had different duties than Ransford.
Ransford admitted that “she ‘constantly’ rolls her eyes in her
everyday life as it is a character trait out of her control and which
runs in her family.” She did not dispute that she told Flores that
she felt micromanaged, but argued that “[g]iving feedback to
managers is not a cause for termination.” She stated that she
signed the Level 4 Corrective Action in January 2017 because she
felt she had no other choice. Ransford stated that she asked her
union representative to file a grievance regarding the corrective
action, but the representative failed to do so.
Ransford argued that SCPMG “fail[ed] to establish, as a
matter of law, that [Ransford] ever violated the Last Chance
Agreement before it terminated her employment.” She stated
that Idos’s representation of the February 7 incident was false.
9
Ransford pointed out that Idos’s note regarding the patient’s
medications stated, “Tentative plan when pt returns call: [¶]
Hold Lasix and KCI x 2 days 2/8/17 and 2/9/17. [¶] Resume lower
doses of Lasix . . . and KCI . . . as of 2/10/17.” The message said
nothing about the patient’s medication dose for February 7.
Ransford stated that when the patient’s wife called on February
7, she simply relayed the message that Idos left. Ransford did
not recall specifically discussing the patient’s dose for February 7,
but said that if the patient had asked about it, she would have
documented it. Ransford also stated that employee Myra De
Vera was sitting next to her during the call, and “Myra would
have intervened if she believed I made a mistake endangering
the patient’s health.” Ransford also disputed some details about
Idos’s version of events, such as whether Idos called the patient
to correct the error, as opposed to the patient calling the clinic
again.
Ransford argued that the delays in discipline for the 2015
incidents, along with the “flagrant, unexplained inconsistencies
in SCPMG’s evidence” established a prima facie case for
disability discrimination. She argued that the inconsistencies in
Idos’s statements showed that the basis for her termination was
pretextual. She also argued that her evidence demonstrated a
triable issue as to SCPMG’s motive. Ransford further asserted
that she raised triable issues of fact as to her intentional
infliction of emotional distress claim. She also argued that she
was entitled to two additional days’ pay for bereavement leave,
and she was not required to file a grievance under the CBA.
SCPMG filed a reply in support of its motion, asserting that
the evidence Ransford presented was insufficient to demonstrate
a triable issue of fact on any cause of action.
10
3. Hearing and ruling
At the hearing on the motion, the court announced that its
tentative ruling was to grant the motion. The court stated that
SCPMG met its initial burden to show a legitimate basis for
Ransford’s termination. Addressing the wrongful termination
cause of action first, the court noted that although there were
some disputed details about the events of February 7, it was
undisputed that Idos perceived that Ransford gave a patient
incorrect medication instructions, and Idos contacted the patient
again to provide correct instructions. The court stated, “[T]he
seriousness of what happened and the belief by [SCPMG] given
[Ransford’s] history that termination was proper can’t be
disputed simply because [Idos] and [Ransford] disagree as to the
exact events.” The court also said that the timing of the
termination following Ransford’s leaves, without more, was
insufficient to create a triable issue of fact. The court held that
Ransford’s claims for intentional and negligent infliction of
emotional distress were derivative of the wrongful termination
claim, and could not survive for the same reasons.
Turning to Ransford’s wage-based claims, the court stated
that Ransford was required to “follow the procedures set forth in
the collective bargaining agreement before she may maintain”
these causes of action. The court said SCPMG demonstrated that
Ransford did not follow those procedures, and therefore the
motion should be granted on the two wage-based causes of action.
Ransford’s counsel argued there were discrepancies in the
evidence about what happened on February 7. The court
suggested that no matter which side was right about the details,
SCPMG could “look at the incident generally and say enough is
enough, we’re going to terminate her even if it turns out that
11
factually they’re wrong,” in which case the termination would be
unrelated to any perceived disability. Ransford’s counsel
asserted that such a situation would offer a mixed motive, with
both legitimate reasons and discriminatory reasons for the
employment action. Counsel for SCPMG argued that the timing
of Ransford’s discipline did not suggest discrimination, noting
that Goldberg stated in her declaration that a discipline meeting
was not held earlier due the inability to schedule a union
representative for a meeting earlier during the short periods
Ransford was not on leave. Ransford’s counsel also argued that
Ransford was entitled to bereavement leave pay, but
acknowledged that she did not file a grievance. The court stated
that it was not persuaded to change its ruling.
The court therefore granted the motion for summary
judgment. In the order prepared by SCPMG’s counsel and signed
by the court, the court stated that Ransford did not show a triable
issue of fact for her cause of action for wrongful termination. The
court stated that Ransford’s causes of action for intentional and
negligent infliction of emotional distress failed “because they are
based on wrongful termination and are also barred by workers’
compensation exclusivity.” Regarding the wage claims, the court
stated that Ransford was required to “follow the procedures” of
the CBA, but she did not do so “because she did not file a
grievance for unpaid wages.” The court entered judgment in
favor of SCPMG. Ransford timely appealed.
DISCUSSION
Ransford asserts that the summary judgment motion
should have been denied because she raised triable issues of fact.
SCPMG asserts that the motion was properly granted.
12
Summary judgment is appropriate when “all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A defendant
may establish that a cause of action has no merit by
demonstrating that there is a complete defense to that cause of
action. (Id., subd. (p)(2).) “We review the trial court’s grant of
summary judgment de novo and decide independently whether
the parties have met their respective burdens and whether facts
not subject to triable dispute warrant judgment for the moving
party as a matter of law.” (Jessen v. Mentor Corp. (2008) 158
Cal.App.4th 1480, 1484.) “[A] trial court judgment is ordinarily
presumed to be correct and the burden is on an appellant to
demonstrate, on the basis of the record presented to the appellate
court, that the trial court committed an error that justifies
reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th
594, 608-609.)
A. Wrongful termination
1. Legal standards
“‘The elements of a claim for wrongful discharge in
violation of public policy are (1) an employer-employee
relationship, (2) the employer terminated the plaintiff’s
employment, (3) the termination was substantially motivated by
a violation of public policy, and (4) the discharge caused the
plaintiff harm.’” (Nosal-Tabor v. Sharp Chula Vista Medical
Center (2015) 239 Cal.App.4th 1224, 1234-1235.) Here, Ransford
alleged that “disability [and] her time on medical leave were
substantial motivating reasons for [SCPMG’s] decision” to
terminate her employment.
13
To evaluate discrimination and retaliation claims,
California uses the three-part burden-shifting framework laid out
in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792
(McDonnell Douglas). (See Guz v. Bechtel Nat. Inc. (2000) 24
Cal.4th 317, 354 (Guz); Lawson v. PPG Architectural Finishes,
Inc. (2022) 12 Cal.5th 703, 708.) “Under that approach, the
employee must establish a prima facie case of unlawful
discrimination or retaliation. (McDonnell Douglas, [411 U.S.] at
p. 802.) Next, the employer bears the burden of articulating a
legitimate reason for taking the challenged adverse employment
action. (Ibid.) Finally, the burden shifts back to the employee to
demonstrate that the employer’s proffered legitimate reason is a
pretext for discrimination or retaliation. (Id. at p. 804.)”
(Lawson, supra, 12 Cal.5th at p. 708.)
“A defendant employer’s motion for summary judgment
slightly modifies the order of these showings. If, as here, the
motion for summary judgment relies in whole or in part on a
showing of nondiscriminatory reasons for the discharge, the
employer satisfies its burden as moving party if it presents
evidence of such nondiscriminatory reasons that would permit a
trier of fact to find, more likely than not, that they were the basis
for the termination. [Citations.] To defeat the motion, the
employee then must adduce or point to evidence raising a triable
issue, that would permit a trier of fact to find by a preponderance
that intentional discrimination occurred.” (Kelly v. Stamps.com
Inc. (2005) 135 Cal.App.4th 1088, 1097-1098; accord, Wilkin v.
Community Hospital of the Monterey Peninsula (2021) 71
Cal.App.5th 806, 821-822.)
Thus, the employee must “produce ‘substantial evidence
that the employer’s stated nondiscriminatory reason for the
14
adverse action was untrue or pretextual, or evidence the
employer acted with a discriminatory animus, or a combination of
the two, such that a reasonable trier of fact could conclude the
employer engaged in intentional discrimination.’” (Hicks v.
KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003 (Hicks).)
“The plaintiff must do more than raise the inference that the
employer’s asserted reason is false. ‘[A] reason cannot be proved
to be “a pretext for discrimination” unless it is shown both that
the reason was false, and that discrimination was the real
reason.’ [Citation.] If plaintiff produces no evidence from which
a reasonable factfinder could infer that the employer’s true
reason was discriminatory, the employer is entitled to summary
judgment.” (Ibid.)
2. No evidence of pretext
Ransford challenges the court’s ruling only as to the final
step of the analysis. She states, “The issue in this appeal boils
down to pretext, i.e., was there a legitimate reason for Ms.
Ransford’s termination, or was her medical condition or use of
medical leave at least a factor in her termination[?]” Ransford
argues that pretext may be inferred from (1) factual
inconsistencies regarding the February 7 incident, (2) the
temporal proximity between her return from medical leave and
the January 2017 corrective action, and (3) the vague and
subjective nature of the various criticisms about Ransford’s work
performance.
The evidence does not support Ransford’s argument. She
presented no direct evidence that SCPMG’s actions resulted from
discrimination or retaliation. Indeed, Ransford herself testified
that she did not feel that she was treated differently because of
any disability. She also testified, “I don’t believe they terminated
15
me because they didn’t like me or like the way I worked. I believe
they terminated me for accusing me of a mistake, a medication
error, and putting a patient at risk . . . .”
That Ransford disagrees with Idos’s version of the
February 7 events does not establish that the incident was
pretextual. Ransford argues that the February 7 incident as a
reason for her termination is “simply not supported by the
evidence.” She asserts that Idos’s instructions said nothing about
the dose of medication for February 7, and stated only that the
patient should not take the medication on February 8 and 9;
Ransford contends that she simply conveyed this information to
the patient. Ransford also asserts that Idos’s version of events is
inconsistent about who called the patient and when.
“In demonstrating that an employer’s proffered
nondiscriminatory reason is false or pretextual, ‘“[an employee]
cannot simply show that the employer’s decision was wrong or
mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent. . . .”’” (Zamora
v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 32;
see also Guz, supra, 24 Cal.4th at p. 358 [an employer’s
nondiscriminatory “true reasons” for terminating an employee
“need not necessarily have been wise or correct”; “the ultimate
issue is simply whether the employer acted with a motive to
discriminate illegally”].) Here, inconsistencies in the evidence do
not support a finding that the basis for termination was
pretextual. SCPMG submitted evidence that Ransford had a long
history of concerning behavior, especially surrounding her
communication with patients and staff. SCPMG asserted that
beginning in 2015, Ransford did not mark important messages
16
“urgent,” moved or canceled patient appointments without
notifying the patients, gave a patient incorrect medication
instructions, refused to communicate patient information that
was written down in another room, and failed to meet
expectations regarding rooming patients. In addition, Ransford
did not dispute that she rolled her eyes at team members who
gave her instructions, and complained that she was being
micromanaged when she was asked to better document how she
reached patients by phone.
Thus, the February 7 incident occurred after concerns had
already arisen about Ransford’s ability to effectively
communicate. Idos and Goldberg questioned Ransford’s actions
that day regardless of the exact medication instructions, what
Ransford told the patient’s wife, or who called whom. Idos stated
that when she confronted Ransford about the call an hour after it
occurred, Ransford became defensive and claimed she did not
recall what she told the patient, which Idos found “not credible.”
Goldberg stated in her declaration that when she discussed the
issue with Ransford a week later, she also found Ransford’s lack
of memory about the incident not credible. Goldberg stated that
this was one incident among a “continued pattern of lack of good
judgment.” “[T]he loss of confidence in an employee . . . is a
legitimate, nondiscriminatory reason for discharge.” (Arteaga v.
Brink’s, Inc. (2008) 163 Cal.App.4th 327, 352 (Arteaga).) Thus,
even assuming Ransford’s version of events was correct, the
minor inconsistencies in the evidence regarding the events on
February 7 do not suggest that the basis for Ransford’s
termination was pretextual or otherwise motivated by
discriminatory animus.
17
Ransford asserts that the “evidence of pretext is further
augmented by the temporal proximity (less than a week) between
Ms. Ransford’s return from medical leave and [the] Level 4
Corrective Action.” SCPMG points out that Ransford’s claim is
for wrongful termination—she did not allege in her complaint
that she was subjected to discriminatory or retaliatory adverse
employment action other than termination. Thus, the only
relevant adverse event is Ransford’s termination, not the Level 4
Corrective Action.
Even assuming the timing of the Level 4 Corrective Action
was relevant, however, “temporal proximity alone is not sufficient
to raise a triable issue as to pretext once the employer has offered
evidence of a legitimate, nondiscriminatory reason for the
termination.” (Arteaga, supra, 163 Cal.App.4th at p. 353.) The
Arteaga court continued, “This is not to say that temporal
proximity is never relevant in the final step of the McDonnell
Douglas test. In the classic situation where temporal proximity
is a factor, an employee has worked for the same employer for
several years, has a good or excellent performance record, and
then, after engaging in some type of protected activity—
disclosing a disability—is suddenly accused of serious
performance problems, subjected to derogatory comments about
the protected activity, and terminated. In those circumstances,
temporal proximity, together with the other evidence, may be
sufficient to establish pretext.” (Id. at pp. 353-354.)
Ransford’s situation was not similar. SCPMG’s concerns
about Ransford’s communication with staff and patients dated
back to 2015, before she went on leave. Moreover, Ransford did
not submit any evidence suggesting that SCPMG considered
Ransford’s leaves or medical issues to be problematic. Temporal
18
proximity, without more, does not support a finding of pretext or
discriminatory animus.
Ransford further contends that because SCPMG’s
criticisms of her performance were “subjective,” they support an
inference of pretext. She asserts that “[i]n light of the weakness
and implausibilities [sic] in SCPMG’s evidence” regarding the
February 7 incident, “a trier of fact could reasonably infer that
inclusion of such subjective incidents in the Level 4 Corrective
Action is also pretextual.”
Although subjective evaluations are “‘susceptible of abuse
and more likely to mask pretext’” (Xin Liu v. Amway Corp. (9th
Cir. 2003) 347 F.3d 1125, 1136), the evidence does not suggest as
much here. For one thing, Ransford observes in her brief that the
“subjective” comments were “criticisms of Ms. Ransford prior to
her taking extended medical leaves.” (Emphasis added.) The
criticisms therefore could not have been made in retaliation for
her back injury or medical leaves. Ransford does not dispute that
that she met with Goldberg and Flores in July 2015—before she
went on leave—to discuss needed improvements in her work.
Moreover, the criticisms did not involve amorphous qualities,
such as whether Ransford was sufficiently “upbeat.” (Xin Liu,
supra, 347 F.3d at p. 1137.) To the contrary, almost all of the
incidents in the Level 4 Corrective Action related to specific
interactions involving communication among staff or with
patients. These criticisms do not suggest pretext. “The fact that
[an] assessment was based upon subjective criteria does not, by
itself, demonstrate pretext.” (Hicks, supra, 160 Cal.App.4th at p.
1005.)
Thus, SCPMG established nondiscriminatory reasons for
Ransford’s discharge, and Ransford did not produce evidence that
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would permit a trier of fact to find that intentional discrimination
occurred. Summary judgment on Ransford’s wrongful
termination cause of action was appropriately granted.
B. Emotional distress
Ransford asserts that the court also erred in granting
summary judgment on her intentional and negligent infliction of
emotional distress causes of action based on workers’
compensation exclusivity. She asserts, “the trial court failed to
take into consideration the law that a claim for emotional
distress is not barred where the distress is caused by an
employer’s illegal discriminatory practices.”
Generally, when a plaintiff employee alleges infliction of
emotional distress, and the “alleged wrongful conduct . . .
occurred at the worksite, in the normal course of the employer-
employee relationship, . . . workers’ compensation is [the]
exclusive remedy for any injury that may have resulted.”
(Miklosy v. Regents of University of California (2008) 44 Cal.4th
876, 902.) “However, where a plaintiff can allege that she
suffered emotional distress because of a pattern of continuing
violations that were discriminatory, her cause of action for
infliction of emotional distress will not be barred by the
exclusivity provisions of workers’ compensation laws.” (Murray v.
Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338,
1363.)
Here, there were no triable issues of material fact as to
discrimination in relation to Ransford’s wrongful termination
claim, and the emotional distress causes of action fail for the
same reasons. Ransford did not show that she suffered emotional
distress due to a pattern of discriminatory violations. We
therefore find no error in the trial court’s ruling as to Ransford’s
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claims for negligent and intentional infliction of emotional
distress.
C. Wage claims
Ransford contends the trial court erred in granting
summary judgment on her wage-based claims on the grounds
that she failed to comply with the requirements of the CBA. She
asserts that she “showed that she did initiate the grievance
process through an informal process, as required by the CBA.”
However, the CBA requires that a grievance “be initiated . . . by
the submittal of a grievance form from the union to facility
human resources and copied to the involved supervisor.”
Ransford only cites evidence that she left voicemails for Flores
about the issue; there is no evidence that she filed a grievance
form with human resources or her supervisor. Moreover,
Ransford’s counsel acknowledged at the motion hearing that
Ransford did not file a grievance. Ransford therefore failed to
demonstrate that she followed CBA requirements, or that the
court’s conclusion as to this issue was erroneous.2
2 The trial court did not hold that Ransford failed to get
proper approval before she took bereavement leave.
Nevertheless, in her brief Ransford discusses the manner by
which she initially requested leave (by phone rather than
through the computer system), and argues this procedure was
appropriate. These contentions are irrelevant. Ransford's
counsel asserted for the first time at oral argument that Ransford
was entitled to bereavement pay pursuant to statute, without
regard to any CBA requirements. This argument was not
included in Ransford's briefing, and it has been forfeited.
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DISPOSITION
The judgment is affirmed. The parties shall bear their own
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
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