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Sherrylyn L. Swindle v. Res-Care California

January 11, 2012

SHERRYLYN L. SWINDLE, PLAINTIFF AND APPELLANT,
v.
RES-CARE CALIFORNIA, INC., ET AL., DEFENDANTS AND RESPONDENTS. SHANNON GRANADOS, PLAINTIFF AND APPELLANT,
v.
RES-CARE CALIFORNIA, INC., ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. SCV22695); (Super. Ct. No. SCV22720)

The opinion of the court was delivered by: Raye , P. J.

Swindle v. Res-Care California

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Res-Care California, Inc. (Res-Care) operates residential and day facilities for the developmentally disabled. Res-Care employed, and ultimately terminated, plaintiffs Sherrylyn Swindle and Shannon Granados. Swindle and Granados filed suit against Res-Care, alleging retaliation under the Fair Employment and Housing Act and wrongful termination. Res-Care moved for summary judgment, which the trial court granted. The court found the undisputed facts demonstrated legitimate nondiscriminatory reasons for Res-Care's actions. Swindle and Granados (collectively, plaintiffs) appeal, arguing they established pretext on the part of Res-Care and the court erred in granting Res-Care's motion for a protective order and request for sanctions. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Cal-Res owns and operates over 20 residential group homes for developmentally disabled clients. Cal-Res also operates a licensed community access day program (CAP) in Auburn, where developmentally disabled adults go for activities during the day.

In 2001 Cal-Res hired Swindle to work at the CAP center. In 2004 Cal-Res hired Granados as program manager at the CAP center. Swindle and Granados reported to area director Jeffory Nichols. Nichols reported to executive director Jacalyn Smith.

Cal-Res employees involved in the care of developmentally disabled adults are mandated, under California law, to report abuse and neglect of Cal-Res clients to the appropriate state agencies. Plaintiffs received training on abuse reporting and the procedures involved.

In 2006 Nichols issued a memo regarding reporting procedures. According to the memo, staff were to report abuse or neglect up the Cal-Res chain of command prior to reporting to an outside agency. Plaintiffs received the memo and acknowledged understanding the specified procedures.

Granados's Employment and Termination

In August 2005 Granados received her first and only performance review from Nichols. The review was very positive and Granados received a raise. In July 2006 Cal-Res terminated Granados. The termination was based on her failure to complete a background check on a new employee and allowing the employee to begin working at the facility without background clearance, and for failing to report abuse of a client.

Cal-Res requires that job applicants submit fingerprints for a background check by the Department of Justice. Under California law, Cal-Res may not allow new employees to begin working at a day program until Cal-Res receives a background clearance from the department.

As a day manager Granados was responsible for hiring new employees and knew of the background clearance requirement. Granados understood that a fingerprint clearance was required before allowing a new employee to begin work.

In March 2006 Granados hired an employee and allowed the employee to begin work without the required clearance. Smith directed Nichols to give Granados a corrective action "write-up" for allowing an employee to begin working without a clearance. Granados admitted failing to obtain the required clearance. Granados's action resulted in a fine levied against Cal-Res by the Department of Social Services.

Granados was a "mandated reporter," legally obligated to report abuse to the ombudsman or other state agencies. If Granados learned of abuse, she was to report it to her supervisor, who would in turn complete a special incident report to submit to the ombudsman. Generally, Granados's supervisor would submit the report, but Granados knew how to contact the ombudsman herself if necessary.

Nichols issued a memorandum in 2006 that set forth the need to report abuse and to notify Nichols or Smith before reporting to outside agencies. Granados received the memo and acknowledged she was supposed to report neglect up the chain of command at Res-Care before reporting it to an outside agency.

Sometime in June 2006 Granados received a complaint that a new employee had physically and verbally abused a Cal-Res client. Granados investigated the allegation and determined the employee's conduct was abusive and warranted termination. She reported her findings to human resources.

Granados never reported the June 2006 incident to the ombudsman, even though she believed the employee's conduct constituted abuse. Nichols learned of the incident and conducted an investigation, interviewing Granados. Nichols concluded that Granados allowed the employee to work without a background clearance and failed to properly report the abuse incident.

Granados admitted the misconduct. Based on the March and June 2006 incidents, Smith terminated Granados in July 2006. Shortly after her termination, Granados submitted a complaint to the Department of Fair Employment and Housing alleging her termination was because she was pregnant.

Swindle's Employment and Termination

In June 2005 Nichols promoted Swindle to the position of assistant CAP manager and increased her pay. Nichols reviewed Swindle's performance from June 2005 through June 2006. He rated Swindle's performance as exceeding expectations in all but two categories.

After Granados's termination, Swindle applied for the CAP manager position. The position required computer and interpersonal skills. Swindle conceded that she lacked the skills required for the job. Res-Care selected someone else for the position.

When Swindle learned she had not been selected as the new assistant CAP manager, she told Nichols and Smith she had been "Jew'd" out of the job. Nichols, who is Jewish, found the remark offensive. Swindle was given a written warning based on the comment.

The following day Swindle took photographs of a developmentally disabled client and left them on a bookshelf. Res-Care prohibits the taking of photos without a consent form. Swindle admitted taking the pictures and could not provide the required form. In October 2006 Swindle ...


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