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Deborah Lugo v. Huntington Memorial Hospital


October 7, 2011


The opinion of the court was delivered by: Dean D. Pregerson United States District Judge



Presently before the court is Defendants' Motion for Summary Judgment. Having considered the submissions of the parties and heard oral argument, the court grants the motion and adopts the following order.

I. Background*fn1

Plaintiff Deborah Lugo ("Lugo") began working at Huntington Memorial Hospital ("Huntington") as a Quality Management Specialist ("QMS") on September 17, 2007.*fn2 (Deposition of Deborah Lugo ("Lugo Depo.") at 190; Declaration of Edna DeLeon ("DeLeon Dec.) ¶ 4.) As a Quality Management Specialist, Lugo was responsible for monitoring and improving physician performance. (DeLeon Dec. ¶¶ 5-8.) Defendant Edna DeLeon served as Lugo's supervisor. (DeLeon Dec. ¶ 4.)

At some point between September 2007 and July 2008, Lugo's supervisors, including Huntington's Chair of Cardiology, grew concerned about deficiencies in Lugo's work performance. (DeLeon Dec. ¶¶ 9-10.) On August 15, 2008, following a Human Resources investigation, Lugo received a written warning regarding her job performance. (Exhibit B to Plaintiff's Motion.) Approximately seven months later, on March 19, 2009, Lugo received a second written warning regarding "continued medical review errors."*fn3 (Exhibit C to Mot.) In April 2009, Huntington's Medical Staff Coordinator submitted a written complaint about Lugo to DeLeon, requesting that Lugo be relieved of certain responsibilities. (Exhibit D to Mot.) On June 2, 2009, Lugo received a third and final written warning regarding "Continued Job Performance Concerns," including delays, inappropriate and unprofessional communications, and incomplete work product. (Exhibit E to Mot.)

In June 2009, Huntington decided to eliminate several positions across several departments, including a Quality Management Specialist position. (Declaration of Paula Verrette, MD ¶¶ 10, 12.) Lugo was the lowest-performing Quality Management Specialist, and was therefore laid-off. (Verrette Dec. ¶ 12.) Huntington eliminated Lugo's former position entirely, and therefore has not hired anyone to take Lugo's place. (Id. ¶ 13.)

Lugo filed the instant suit against Defendants, alleging race discrimination, failure to pay overtime, failure to provide mean and rest periods, defamation, and intentional infliction of emotional distress. Defendants now move for summary judgment on all claims.

II. Legal Standard

A motion for summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case. See id. If the moving party meets its initial burden, the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. Anderson, 477 U.S. at 242.

It is not the court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996). Counsel have an obligation to lay out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). The court "need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could conveniently be found." Id. III. Discussion

As an initial matter, the court notes that Lugo has submitted very little comprehensible or admissible evidence. Lugo's Exhibit A is an unauthenticated e-mail from one Joshua Barbosa, which appears to consist of opinion regarding Defendant DeLeon, the relevance of which is unclear. Lugo's Exhibit B, which is also unauthenticated, appears to be a list of Quality Management Specialists, as well as a chart described at note 3, supra. Exhibit C, also unauthenticated, appears to include evaluations of Lugo's suitability for a Quality Management Specialist position prior to her employment at Huntington. Exhibit D, also unauthenticated, appears to be a list of certain employees and their races. The court cannot, and does not, consider any of these documents for purposes of this motion. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). The court further notes that self-serving, uncorroborated testimony cannot create a genuine issue sufficient to defeat summary judgment. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).

A. Race Discrimination To defeat a motion for summary judgment, a plaintiff alleging discrimination bears the burden to establish a prima facie case. That is, he "must offer evidence that gives rise to an inference of unlawful discrimination." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (internal quotation omitted). A prima facie case may be based on direct evidence of discriminatory intent or on a presumption based on factors the Supreme Court set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

In order establish a prima facie case under McDonnell Douglas, a plaintiff must show that: "(1) he belonged to a protected class; (2) he was qualified for his job; (3) he was subjected to an adverse employment action; and (4) similarly situated employees not in his protected class received more favorable treatment." Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 753 (9th Cir. 2010). Once the plaintiff establishes a prima facie case, "the burden shifts to the defendant[] to provide non-discriminatory reasons for the adverse action." Id. If the employer does so, "the prima facie case 'drops out of the picture,' and a court evaluates the evidence to determine whether a reasonable jury could conclude that defendants discriminated" against the plaintiff. Id. Once the employer has offered a nondiscriminatory reason for the employment action, the plaintiff may defeat summary judgment by (1) providing direct or circumstantial evidence that the employer was more likely motivated by a discriminatory reason or (2) showing that the proffered explanation is "'unworthy of credence' because it is internally inconsistent or otherwise not believable." Chuang v. Univ. of Cal. Davis, Bd. Of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000).

Here, Lugo has failed to establish a prima facie case. There is no evidence in the record that she belongs to a protected class, nor that any other similarly situated employees who are not members of a protected class received more favorable treatment. Even if Lugo could make a prima facie case of discrimination, Defendants have provided extensive evidence of credible, non-discriminatory reasons for Lugo's termination. On this record, no reasonable jury could conclude that Defendants discriminated against Lugo on the basis of race.

B. Failure to Pay Overtime As an initial matter, there is no evidence in the record regarding the hours Lugo worked. Lugo does not contest Defendants' assertion that, as an administrative employee, she was not entitled to overtime pay. See Cal. Code Regs § 11040(1)(A). Furthermore, Lugo acknowledged at the time she was hired that her Quality Management Specialist position was not eligible for overtime. (DeLeon Dec. ¶ 24; Exhibit F to Mot.)

C. Failure to Pay Meal Breaks California Employers must provide employees with a thirty-minute meal break for every five hours worked per day. Cal. Lab. Code §§ 512(a), 226.7. By Lugo's own admission, she was provided with meal breaks, and was never told that she could or should not take a meal break.*fn4 (Lugo Depo. at 258-259.) The only evidence to suggest that Lugo was forced to forgo meal breaks is Lugo's own declaration that she "often" missed breaks "because of the inequitable workload." (Lugo Dec. ¶ 7.) This self-serving declaration, however, does not create a genuine issue of fact. Villiarimo, 281 F.3d at 1061.

D. Defamation

Lugo's Fourth Cause of Action alleges that Defendant DeLeon defamed Lugo by criticizing her work performance in an "Employee Memorandum." (FAC ¶¶ 54-60). Defamation "involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure." Taus v. Loftus, 40 Cal. 4th 683, 720 (2007). It is difficult to evaluate Lugo's claim, as she has not submitted the allegedly offending document. However, Defendants assert, and Lugo does not contest, that the memorandum was only "published" to one other person, a Human Resources employee who signed and witnessed the disciplinary memorandum. (Mot. at 21.) Communications between interested parties, however, are privileged, and cannot serve as the basis of a defamation claim. Cal. Civ. Code. § 47(c); See, e.g., King v. United Parcel Serv., Inc., 152 Cal.App.4th 426, 440 (2007) ("[B]ecause an employer and its employees have a common interest in protecting the workplace from abuse, an employer's statements to employees regarding the reasons for termination of another employee generally are privileged.") DeLeon and Human Resources personnel had a common interest in Lugo's job performance. DeLeon therefore could not have defamed Lugo merely by making a privileged communication with a Human Resources employee.*fn5

E. Intentional Infliction of Emotional Distress A cause of action for emotional distress in the employment context, including claims related to criticism of work practices, "is barred by the exclusive remedy provisions of the workers' compensation law." Accardi v. Superior Court, 17 Cal.App.4th 341, 352 (1993). Even if Lugo's claim were not preempted, she has not established even a prima facie case of intentional infliction of emotional distress. To do so, she must show (1) outrageous conduct by Defendants, (2) intent or reckless disregard of the probability of causing distress (3) severe emotional suffering, and (4) proximate case. Cole v. Fair Oaks Fire Protection District, 43 Cal.3d 148, 155 n.7 (1987). The evidence in the record is insufficient to establish any of these elements.

IV. Conclusion

For the reasons stated above, Defendants' Motion for Summary Judgment is GRANTED. Plaintiff's Motion to Extend Discovery Cutoff is DENIED as moot.


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