Macias v. Southern California Permanente Medical etc. CA2/4

Filed 12/9/20 Macias v. Southern California Permanente Medical etc. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
VANESSA MACIAS et al., B294192
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. LC104945)
v.
SOUTHERN CALIFORNIA
PERMANENTE MEDICAL
GROUP,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Virginia C. Keeny, Judge. Affirmed.
Workplace Advocates, Barbara E. Cowan, for Plaintiffs and
Appellants.
Nixon Peabody, Michael R. Lindsay, Alicia C. Anderson,
and Mae K. Hau for Defendant and Respondent.
1
INTRODUCTION
Plaintiffs and appellants Vanessa Macias and Evelyn
Burgos (Plaintiffs) appeal from the trial court’s grant of summary
judgment in favor of Southern California Permanente Medical
Group (SCPMG) on their action for whistleblower retaliation
under Labor Code section 1102.51, wrongful termination, and
violation of Business and Professions Code section 17200.
Plaintiffs’ second amended complaint alleged SCPMG
terminated their employment because they complained to their
supervisor that SCPMG was illegally recording phone calls with
patients. SCPMG moved for summary judgment on several
alternative grounds, including: Plaintiffs could not establish the
essential elements of their claims; Plaintiffs’ claims for
retaliation based on complaints to their union representative
were preempted by the National Labor Relations Act (“NLRA”)
(29 U.S.C. §§ 151 et seq.); and collateral estoppel precluded
Plaintiffs from relitigating issues already decided by the National
Labor Relations Board (“NLRB”). The trial court granted
summary judgment for SCPMG, holding Plaintiffs’ complaints to
their union representative were not protected under section
1102.5, and, in any event, Plaintiffs failed to establish the reason
for their termination (gross misconduct) was pretextual.
We conclude the trial court properly entered summary
judgment in favor of SCPMG because SCPMG presented
undisputed evidence of a legitimate, non-retaliatory reason for
the termination, and Plaintiffs failed to produce evidence
creating a triable issue of fact that SCPMG’s reason for the
termination was pretextual. We therefore need not address
SCPMG’s cross-appeal advancing alternative grounds for
summary judgment.
1 All further undesignated statutory references are to the
Labor Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs worked for SCPMG as full-time Health
Educators. As Health Educators, they provided “wellness
coaching” sessions over the telephone with patients on issues
such as weight management, tobacco cessation, healthier eating,
increasing physical activity, and stress management.
In early 2014, SCPMG initiated a policy to record wellness
coaching sessions between Health Educators and patients.
Plaintiffs complained to their union representative, David
Mallon, that SCPMG unilaterally implemented the policy without
bargaining with the union, and SCPMG could not record patients
without their consent. Mr. Mallon reported Plaintiffs’ concerns to
Plaintiffs’ supervisor, Myriam Cabello.
In July 2014, after receiving an anonymous complaint that
Plaintiffs were leaving well before the end of their shifts, SCPMG
conducted an investigation. SCPMG interviewed Plaintiffs, and
reviewed their appointment schedules, entry/exit logs, and
telephonic logs of their appointments. On July 31, 2014, SCPMG
placed Plaintiffs on paid administrative leave pending the
conclusion of the investigation. On August 25, 2014, SPCMG
terminated their employment for gross misconduct. Their
termination letters stated Plaintiffs were calling patients hours
before their scheduled appointment times, documenting in the
patient records that the patients were not available, and
cancelling patients’ appointments when they did not answer the
phone. On almost all of these occasions, Plaintiffs left work much
earlier than scheduled—before their last appointment time and
before the scheduled end of their work shift.
Plaintiffs’ second amended complaint alleged: (1) violation
of Labor Code section 1102.5; (2) wrongful termination in
violation of public policy; and (3) violation of Business and
Professions Code section 17200. SCPMG moved for summary
judgment, asserting Plaintiffs’ claims were preempted by the
3
NLRA and Plaintiffs were collaterally estopped from relitigating
issues already decided by the NLRB.2 Alternatively, SCPMG
argued Plaintiffs’ claims failed as a matter of law because they
could not establish the elements of their claims. In opposition,
Plaintiffs contended the action was not preempted by the NLRA
because the conduct at issue was not protected or prohibited by
the NLRA; the doctrine of collateral estoppel did not apply
because the NLRB acted in an administrative capacity; and
Plaintiffs made a prima facie case for retaliation because they
demonstrated they complained before SCPMG placed Plaintiffs
on administrative leave.
The trial court held the action was not preempted, and the
doctrine of collateral estoppel was inapplicable. It granted
summary judgment, however, on the ground that Plaintiffs’
claims failed as a matter of law. Regarding Plaintiffs’ section
1102.5 claim, the court stated “[t]he plain language of the statute
does not permit the construction plaintiffs seek to impose on it,
namely that complaining to a co-worker is the equivalent of
complaining to a supervisor, where the co-worker carries the
complaint to the supervisor.” The court further held Plaintiffs’
wrongful termination claim failed because Plaintiffs “present no
evidence from which a trier of fact could conclude that the
grounds given by SCPMG for the termination decision were
pretextual, other than that the decision took place after their
supervisor learned of their complaint.” The trial court also
dismissed Plaintiffs’ claim under Business and Professions Code
section 17200 because it was derivative of their section 1102.5
claim. The court entered judgment in favor of SCPMG.
2 After Plaintiffs were terminated, their union filed an unfair
labor practice charge with the NLRB on their behalf, alleging
SCPMG retaliated against them for engaging in union activity by
exaggerating minor workplace errors and terminating their
employment with forged evidence. The NLRB Regional Director
dismissed the charge.
4
Plaintiffs filed a motion for reconsideration, arguing the
trial court misunderstood Mr. Mallon’s employment status (i.e.,
that he is an employee of SCPMG). In support of their motion,
Plaintiffs submitted a declaration from Mr. Mallon stating he
was employed by SCPMG and acted as a union representative.
The trial court denied the motion, stating “the court didn’t
assume that Mallon was an employee of the union. The court’s
opinion in granting summary judgment was premised on the
understanding that he was an employee of the hospital but also
the union representative [¶] . . . . [¶]But, ultimately, I concluded
that the requirement that the complaint be made to a supervisor
or a person with authority to investigate, discover, or correct the
violation meant a person given that authority by the employer.”
Plaintiffs appeal, and SCPMG cross-appeals, from the
judgment.
DISCUSSION
I. Standard of Review
“A party is entitled to summary judgment only if there is no
triable issue of material fact and the party is entitled to judgment
as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A
defendant moving for summary judgment must show that one or
more elements of the plaintiff’s cause of action cannot be
established or that there is a complete defense. (Id., subd. (p)(2).)
If the defendant meets this burden, the burden shifts to the
plaintiff to present evidence creating a triable issue of material
fact. (Ibid.) A triable issue of fact exists if the evidence would
allow a reasonable trier of fact to find the fact in favor of the
party opposing summary judgment. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850 [citation.])
“We review the trial court’s ruling on a summary judgment
motion de novo, liberally construe the evidence in favor of the
party opposing the motion, and resolve all doubts concerning the
5
evidence in favor of the opponent. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460 [citation.]) We must affirm
a summary judgment if it is correct on any of the grounds
asserted in the trial court, regardless of the trial court’s stated
reasons. [Citation.]” (Grebing v. 24 Hour Fitness USA, Inc. (2015)
234 Cal.App.4th 631, 636-637.)
II. Governing Legal Principals on Retaliation Claims
Macias and Burgos brought two claims for retaliation:
whistleblower retaliation under section 1102.5 and wrongful
termination in violation of public policy.
Section 1102.5, subdivision (b) prohibits retaliation against
employees who engage in whistleblowing: “[a]n employer . . . shall
not retaliate against an employee for disclosing information . . . to
a government or law enforcement agency, to a person with
authority over the employee or another employee who has the
authority to investigate, discover, or correct the violation or
noncompliance . . . if the employee has reasonable cause to
believe that the information discloses a violation of state or
federal statute, or a violation of or noncompliance with local,
state, or federal rule or regulation[.]” To establish a prima facie
case of retaliatory discharge under section 1102.5, a plaintiff
must show that “‘(1) she engaged in a protected activity, (2) her
employer subjected her to an adverse employment action, and (3)
there is a causal link between the two.’ [Citation.]” (McVeigh v.
Recology San Francisco (2013) 213 Cal.App.4th 443, 468.)
“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.
[Citation.]” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.)
6
“When a plaintiff alleges retaliatory employment
termination either as a claim under [section 1102.5] or as a claim
for wrongful termination in violation of public policy,” California
courts apply “the three-step burden-shifting analysis” set forth in
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct.
1817, 36 L.Ed.2d 668] (McDonnell Douglas). (Loggins v. Kaiser
Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-
1109 [retaliatory termination in violation of public policy]; Akers
v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453
[section 1102.5].) “Once an employee establishes a prima facie
case [of retaliation], the employer is required to offer a legitimate,
nonretaliatory reason for the adverse employment
action. [Citation.] If the employer produces a legitimate reason
for the adverse employment action, the presumption of
retaliation ‘drops out of the picture,’ and the burden shifts back to
the employee to prove intentional retaliation. [Citation.]” (Akers
v. County of San Diego, supra, 95 Cal.App.4th at p. 1453.)3
3 Plaintiffs contend section 1102.6 requires the employer to
prove a legitimate, non-retaliatory reason for termination under
a heightened clear-and-convincing standard. We disagree. Section
1102.6 provides that “once it has been demonstrated by a
preponderance of the evidence that an activity proscribed by
Section 1102.5 was a contributing factor in the alleged prohibited
action against the employee, the employer shall have the burden
of proof to demonstrate by clear and convincing evidence that the
alleged action would have occurred for legitimate, independent
reasons even if the employee had not engaged in activities
protected by section 1102.5.” (§ 1102.6.) Section 1102.6 thus
describes the employer’s burden of proving a same-decision
affirmative defense. (See Harris v. City of Santa Monica (2013)
56 Cal.4th 203, 239 [section 1102.6 “requires the employer to
prove a same-decision defense by clear and convincing
evidence . . .”].) It only applies once the employee has proven by a
preponderance of the evidence that retaliation was a contributing
factor in the adverse action, and the employer asserts it would
have made the same decision in the absence of the proven
7
III. SCPMG Is Entitled to Summary Adjudication of
Plaintiffs’ Retaliation Claims
In their causes of action for retaliation in violation of
section 1102.5 and wrongful termination, Plaintiffs contend they
were terminated because they complained to their supervisor
about SCPMG’s policy of recording calls between health
educators and patients without patients’ consent.
As noted above, to establish a prima facie case under
section 1102.5, Plaintiffs must demonstrate their complaints
were made “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).)
It is undisputed Plaintiffs complained to their union
representative, David Mallon, who then reported their concerns
to Plaintiffs’ supervisor, Myriam Cabello.
Plaintiffs allege their complaints were made directly to a
person with authority because Mr. Mallon is a supervisor. That
contention, however, is not supported by the evidence.4 And, on
appeal, the parties do not address whether an indirect complaint
to a supervisor (i.e., a complaint to a union representative that is
then conveyed to a supervisor) constitutes protected activity
under section 1102.5. In any event, we need not resolve that issue
in this case because, even assuming Plaintiffs’ complaints
retaliation. Thus, the clear-and-convincing standard set forth in
section 1102.6 is not applicable to the McDonnell-Douglas
burden-shifting analysis.
4 Plaintiffs repeatedly refer to Mr. Mallon in their Opening
Brief as “Supervisor David Mallon,” followed either by no citation
to the record or, in some instances, a cite to Mallon’s declaration
submitted in support of Plaintiffs’ motion for reconsideration. But
Mallon does not declare he was a supervisor; he declares only
that he was “an employee of SCPMG” when “Ms. Macias and Ms.
Burgos brought their complaints to [him].”
8
qualified as protected activity under section 1102.5, as discussed
below, there is no triable issue of fact that Plaintiffs were
terminated for a legitimate, non-retaliatory reason.5
In support of its motion for summary judgment, SCPMG
submitted the letters it provided to Plaintiffs when it terminated
their employment. The letters informed Plaintiffs they were
being terminated because SCPMG’s investigation uncovered
“gross misconduct involving dishonesty,” including consistently
calling patients well before their scheduled appointment times
and cancelling their appointments when they did not answer
their phone, leaving work long before the end of their shifts,
failing to monitor patients on drugs, and falsification of records.6
Thus, SCPMG met its burden of presenting evidence of a
legitimate, nonretaliatory reason for Plaintiffs’ termination. (See
Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160 [the
5 Plaintiffs also claim, without any evidentiary support, that
Macias sent a three-page letter on August 11, 2014 to a SCPMG
Senior Human Resources Consultant reporting illegal activity.
Plaintiffs’ opposition to SCPMG’s summary judgment motion
cites to “Plaintiff Fact No. 18,” but “Plaintiff Fact No. 18” does not
exist. Plaintiffs failed to submit the purported letter in opposition
to SCPMG’s motion; nor do Plaintiffs provide deposition
testimony (or even their own declarations) regarding the alleged
complaint. Plaintiffs’ unsupported assertion in their opposition
papers does not constitute evidence. (Parsons v. Crown Disposal
Co. (1997) 15 Cal.4th 456, 463, fn. 2.)
6 Plaintiffs objected to the admissibility of the termination
letters on grounds of hearsay, lack of foundation, and “misstates
exhibit and/or testimony.” The trial court overruled Plaintiffs’
evidentiary objections. Plaintiffs did not contend the trial court
erred in overruling their objection, however, until their appellate
reply brief. Thus, they have forfeited the argument. (California
Building Industry Assn. v. State Water Resources Control Bd.
(2018) 4 Cal.5th 1032, 1050 [where appellant fails to raise an
argument “until its appellate reply brief,” it “has forfeited the
argument. [Citation.]”].)
9
burden to articulate a legitimate non-retaliatory reason for
termination “is not an onerous burden [citation], and is generally
met by presenting admissible evidence showing the defendant’s
reason for its employment decision [citation]”].) The burden
therefore shifted to Plaintiffs to introduce “substantial evidence
that the employer’s stated nondiscriminatory [or nonretaliatory]
reason for the adverse action was untrue or pretextual, or
evidence the employer acted with a discriminatory [or retaliatory]
animus, or a combination of the two, such that a reasonable trier
of fact could conclude the employer engaged in [unlawful
retaliation].” (Hersant v. Department of Social Services (1997) 57
Cal.App.4th 997, 1004-1005 (Hersant).) Plaintiffs have not done
so.
Plaintiffs submitted the following evidence in support of
their opposition: (1) Plaintiffs complained about SCPMG’s
recording policy to Mr. Mallon; (2) Mr. Mallon reported their
concerns to Ms. Cabello; (3) the union sent a cease and desist
letter on their behalf demanding that recording of phone calls
stop; and (4) Burgos’s deposition testimony that she had a “very
informal” meeting with Ms. Cabello after Ms. Cabello learned of
the complaints, during which Ms. Cabello stated “[Burgos] should
have gone to [Cabello] first rather than contact the union.”7
Plaintiffs did not present any evidence that the allegations
of misconduct against them were inaccurate, including even their
7 Plaintiffs also allege they “believed that Ms. Cabello had
herself engineered a complaint against them, which she herself
then ‘investigated,’ in a further effort to retaliate against
[Plaintiffs].” Mere speculation, however, is insufficient to create a
triable issue of fact. (See, e.g., Brown v. Ransweiler (2009) 171
Cal.App.4th 516, 525 (“‘[a]n issue of fact can only be created by a
conflict of evidence. It is not created by “speculation, conjecture,
imagination or guess work.” . . .’”].)
10
own denials.8 Moreover, although it is undisputed that other
SCPMG employees complained about the phone recording policy,
Plaintiffs submitted no evidence of disparate treatment of those
other employees. They failed to present any evidence of
statements or conduct by any SCPMG managers indicating a
retaliatory motive. Thus, we conclude Plaintiffs failed to produce
“substantial evidence” from which a trier of fact could conclude
the grounds given by SCPMG for Plaintiffs’ termination were
pretextual. (Hersant, supra, 57 Cal.App.4th at pp. 1004-1005.)
IV. Plaintiffs’ Third Cause of Action for Violation of
Business and Professions Code section 17200 Fails
for the Same Reason as Their Retaliation Claims
Plaintiffs concede their cause of action for violation of
Business and Professions Code section 17200 is derivative of
their claims for retaliation. We therefore conclude SCPMG is
entitled to summary adjudication of this claim for the same
reasons it is entitled to summary adjudication of Plaintiffs’
retaliation claims.
8 In their declarations, Plaintiffs include an identical
paragraph stating patients were given a 30 minute window in
which they would receive a call from the wellness coaches, and
that it was “plausible [for Plaintiffs] to leave 10-15 minutes early”
if the coach could not reach a patient after two attempts. We
agree with the trial court that “[g]iven the many grounds listed
for their termination, [P]laintiffs’ one paragraph explanation of
why on a few occasions they left 10 to 15 minutes early is not
sufficient to raise a triable issue of fact that SCPMG’s grounds
were pretextual.”
11
DISPOSITION
The judgment is affirmed. The cross-appeal is dismissed as
moot. SCPMG is awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
12