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Sherrylyn L. Swindle v. Res-Care California


January 11, 2012


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

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

Swindle v. Res-Care California



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.


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 received a written warning for taking the photographs without a consent form.

The following month, a co-worker complained of slanderous statements Swindle made about her. Such statements were in violation of Res-Cal's policy prohibiting the spread of false information about co-workers. Smith suspended Swindle while Nichols investigated. Nichols interviewed several employees, including Swindle, about the incident. Based on his investigation, Nichols concluded Swindle had acted inappropriately. On December 1, 2006, Smith demoted Swindle and determined that she should be given a final written warning.

That same day, Nichols received a complaint from the parent of a client. The parent complained that Swindle had treated her rudely. The parent removed her child from Res-Care. Nichols again investigated and discovered Swindle had told the client's parent that if she was unhappy with Res-Care, she should find another program. Swindle admitted making the comment.

At around the same time, Nichols received another complaint from one of Swindle's co-workers. The co-worker filed a grievance stating Swindle had yelled at her in front of other employees. Nichols again investigated and found the allegation substantiated.

Smith terminated Swindle a few days later in December 2006. Smith cited Swindle's disciplinary warnings for disrespectful speech, violation of the photography policy, spreading false information about a co-worker, offending a client's parent, and yelling at a co-worker, all of which occurred between October and December 2006.

Samantha Swindle's Lawsuit

In June 2006 Swindle's daughter, Samantha Swindle, filed an action against Res-Care and Nichols alleging numerous causes of action stemming from her alleged sexual harassment by co-worker Michael Madsen.*fn1 Granados submitted a sworn declaration regarding Madsen's conduct. Res-Care filed a motion for summary judgment or, in the alternative, summary adjudication.

The trial court denied Res-Care's motion for summary judgment but granted summary adjudication as to nine of Samantha Swindle's 10 causes of action. The court found that upon learning of the harassment allegation in July 2005, Res-Care immediately took steps to prevent further harassment. In addition, the court found the declaration and deposition testimony of Granados conflicted with Samantha Swindle's own deposition testimony.

The Current Litigation

In December 2007 Swindle filed an action against Res-Care; Granados filed a separate action in March 2008. The two actions were later consolidated. Swindle and Granados alleged wrongful termination in violation of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) and public policy.

In March 2009 Granados served Res-Care with a request for admissions and form interrogatories. The court granted Res-Care's motion for a protective order and, finding the requests overbroad and irrelevant, awarded $1,800 in monetary sanctions.

Res-Care filed a motion for summary judgment, which Granados and Swindle opposed. The trial court granted summary adjudication in favor of Res-Care as to three causes of action regarding Swindle and two causes of action regarding Granados.

The court found that although both Swindle and Granados made prima facie showings that they engaged in the protected activities of complaining about alleged sexual harassment, reporting abuse and neglect of dependent adults, and supporting a co-worker in her unemployment claim, "[t]he undisputed facts presented demonstrate legitimate non-discriminatory reasons for the actions ending in termination taken against Ms. Swindle. Thereafter Plaintiff has failed to establish 'Pretext' for the actions to rebut the legitimate non-discriminatory reasons for termination." The court made a similar finding regarding Granados. In addition, the court found Swindle's facts failed to support termination in violation of public policy.

Plaintiffs filed a timely appeal.


A motion for summary judgment must be granted if the submitted papers show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party initially bears the burden of making a "prima facie showing of the nonexistence of any genuine issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.) Thus, "if a defendant moves for summary judgment . . . , he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not--otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Ibid., italics omitted.) Once the moving party has met its burden, the burden shifts to the opposing party to show the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subds. (c), (p)(2).)

We review de novo the record and the determination of the trial court. First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond. Second, we determine whether the moving party's showing has established facts negating the opponent's claims and justifying a judgment in the moving party's favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material issue of fact. (Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 290.)

We review a trial court's determination of whether or not to issue a protective order to limit discovery under the abuse of discretion standard. Similarly, we review the award of discovery sanctions under the same standard. (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1286-1287; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.) We reverse only when the court's decision exceeds the bounds of reason, resulting in a miscarriage of justice. (New Albertsons, at p. 1422.) The party complaining bears the burden of showing such an abuse of discretion. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)


To establish a prima facie case of retaliation under the FEHA, a plaintiff must provide evidence that (1) she engaged in protected activity made unlawful under the FEHA, (2) she suffered an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment action. (Gov. Code, § 12940, subd. (h); Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)

Plaintiffs argue their reporting of sexual harassment by a Res-Care employee was a protected activity under the FEHA. They also contend Res-Care's disciplinary actions following the reports of sexual harassment qualify as adverse employment actions. Finally, plaintiffs claim they presented ample evidence that their sexual harassment reports resulted in their terminations. The trial court found plaintiffs made a prima facie showing that they engaged in protected activity, and alleged that they were not promoted and were wrongfully terminated as a result of the protected activity.

If the employee makes its prima facie case, the burden then shifts to the employer to show a legitimate, nonretaliatory basis for the adverse employment action. (Yanowitz, supra, 36 Cal.4th at p. 1042.)

The employee may rebut the employer's claims by showing that the proffered legitimate reasons were trivial, arbitrary or capricious; unrelated to the employer's business needs; or pretextual. (Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, 107-108.) When an employee offers evidence from which a jury could determine that the stated reasons for the termination were not legitimate, summary judgment in favor of the employer is not appropriate. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805-806.)

The trial court determined plaintiffs failed to show Res-Care's reasons for terminating them were mere pretext, concealing a retaliatory motive. Plaintiffs contend the trial court could only have reached its conclusion regarding pretext "by accepting all facts and inferences in ResCare's [sic] favor and rejecting those favorable to" plaintiffs. We disagree; nothing in the record supports plaintiffs' assertion that the trial court accepted one party's version over the other.*fn2

Swindle's Termination

Swindle claims that Res-Care retaliated against her for reporting abuse and neglect, participating in Granados's unemployment appeal, and supporting her daughter's lawsuit against Res-Care. She challenges the legitimacy of each of the reasons cited by Res-Care as the bases for her termination. We consider each of the reasons for termination proferred by Res-Care.*fn3

Res-Care disciplined Swindle for reacting with an ethnic slur when she was denied promotion to Granados's managerial position. Swindle argues Res-Care failed to provide the context in which the incident occurred.

According to Swindle, Nichols saw Swindle at Granados's unemployment appeals hearing and saw Swindle's written statement supporting Granados's claim. A few hours after the hearing, Nichols notified Swindle she would not receive the promotion. Nichols lied to her, telling her Res-Care had hired a more qualified male applicant when, in fact, a female had been hired. Faced with this duplicity, Swindle said she felt betrayed by "Jude," as in Judas.*fn4

Although Swindle now states she said "Jude," not "Jew'd," she failed to correct her deposition transcript, which contains repeated use of the term "Jew'd." Swindle also contends Res-Care "makes much of the fact that Nichols is apparently Jewish and could have been offended by the comment. Whether Nichols could have been offended is irrelevant. The question is whether a reasonable juror could find that, under the totality of the circumstances, Nichols' [sic] was motivated by his desire to punish Swindle for reporting abuse and sexual harassment." However, Swindle admitted her use of the term could be viewed as offensive and inappropriate in the workplace.

Res-Care also disciplined Swindle for photographing a client in violation of company policy. Again, Swindle accuses Res-Care of failing to provide the context surrounding the incident and the lack of appropriate investigation.

According to Swindle, the client in question arrived at the program with food and "snot" all over her face and in her hair. When Nichols ignored Swindle's complaints about the woman's condition, she took the photographs to show to Nichols during his next visit to the day facility. In addition, Swindle claims the client's file contained the appropriate consent form.

However, Swindle also admits that after she received the written warning, "she checked the client's file and the consent form was missing." Res-Care had a policy of requiring a consent form. Swindle photographed a client, and no consent form was on file. Her actions violated company policy and supported the subsequent discipline.

Swindle also challenges Res-Care's disciplinary action based on her slandering of a fellow employee. She denies making the remarks and again faults Res-Care for not providing an adequate context.

According to Swindle, in May 2006 she became very concerned over the physical condition of a client, John R., who resided at one of Res-Care's group homes. She voiced her concerns to Nichols, who did nothing to address the problem. In June 2006, concerned over a lack of medical care for the client, Swindle reported his condition to outside agencies.

John R. died after being hospitalized for pneumonia in October 2006. Following his death, an investigator from adult protective services interviewed Swindle. Swindle informed the investigator about her reports concerning John R.'s condition, and the investigator said she would investigate further. Swindle spoke with a Res-Care nurse and asked why John R. had been classified as a DNR (do not resuscitate). The nurse replied that "things happen."

A few weeks later, Nichols suspended Swindle pending an investigation into slanderous comments made about a co-worker. According to Res-Care, Swindle made statements that the hospital was going to bring charges against a co-worker for issuing a DNR in connection with John R.'s hospitalization. On appeal, Swindle claims that not until Res-Care produced documents in this lawsuit did she learn of the allegations against her.

Although Swindle claims she was never interviewed about the slander complaint, she testified in her deposition that Nichols discussed the incident with her. On the corrective action form about the incident, Swindle wrote: "This [corrective action] seems like a harassment! I asked a question to a nurse about something I heard dealing with a Death of a client! And it seems to be turned into something it was not. I apologize to anyone who took what Katie Richards said wrong this was not what happened!"

In a subsequent incident, Res-Care disciplined Swindle for making offensive comments to a client's parent, comments which precipitated the client's removal from the facility. Swindle does not dispute that she "suggested to the mother that, if she was not happy with the care at the facility, she might want to take her daughter somewhere else." However, Swindle argues this statement was not offensive and disputes that it caused the mother to remove her daughter.

Regardless of the gloss Swindle attempts to put on the incident, she admitted making the comment to the client's mother. The mother subsequently removed her daughter from the facility after complaining about Swindle's comment. Res-Care disciplined Swindle in response; we find no evidence of pretext.

Finally, Res-Care disciplined Swindle for yelling at a co-worker. On December 5, 2006, Nichols received information that a staff member had filed a grievance against Swindle for yelling at her in front of co-workers. Nichols investigated and found the allegation was substantiated.

Responding to Res-Care's stated reasons for terminating her, Swindle insists that she provided ample evidence that the stated reasons were pretextual. She argues that Res-Care "failed to conduct appropriate investigations and reached specious conclusions." We are told that Nichols, who was involved in most of the investigations, "had an axe to grind" since he failed to address Swindle's sexual harassment reports and also sought retaliation for Swindle's refusal to comply with Res-Care's policy of prohibiting reports of neglect and abuse to outside agencies. Swindle also describes the timing of the incidents as "suspicious" and notes the discipline began shortly after other events involving her daughter and Granados.

While disparaging the investigator, Swindle does not counter the evidence arising from the various investigations. And while the timing of accusations may be relevant when tied to additional evidence, temporal proximity alone is insufficient to show a triable issue of fact as to whether an employer's articulated reason for dismissal was untrue and pretextual. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112; Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 334.) Despite her various arguments, the record does not support Swindle's claim of pretext.

Thus, Swindle attempts to link Res-Care's disciplinary actions to her participation in Granados's unemployment hearing. She contends that within a day of supporting Granados, she was told she would not be hired for the managerial position. This contention is undercut by the fact that Swindle acknowledged she lacked the qualifications for the position and admitted Res-Care's failure to promote her was justified by her lack of qualifications.

Swindle also seeks to link the disciplinary actions to her daughter's lawsuit against Res-Care. Again, the attempt fails. After Samantha Swindle's suit was served, Swindle received a favorable review from Nichols. Swindle also acknowledged she was not a witness to the harassment Samantha alleged. It is unclear why Res-Care would retaliate against someone who was not named as a witness in the complaint.

In addition, Swindle argues Smith and Nichols retaliated against her for reporting neglect of clients to outside agencies. According to Swindle, Res-Care prohibited reports of abuse and neglect to outside agencies. In support, Swindle cites a Res-Care training memo dated November 3, 2004, by area director Nichols. The memo states, in part: "All client injuries where a physical mark is observable are to immediately be reported to me. All client injuries/illnesses where an outside agency is called . . . are also to be immediately reported to me. All injuries are to be recorded on the Management Notification Form. . . . Until further notice, call me on all injuries."*fn5

Swindle contends that during her employment, "ResCare [sic] instituted an internal policy that any reports of abuse and neglect were not to be reported to outside agencies. Instead, the reports were to be made only internally. Swindle and Granados refused to obey the policy and ResCare [sic] fired them as a result."

However, Swindle's own testimony belies her claim. Swindle was asked about the memo: "Q[.] So it's your position then that the memo said that you guys were to follow a chain of command when reporting cases of alleged abuse, right? [¶] A[.] Yes. [¶] Q[.] And that the first in the chain was Jeff [Nichols]? [¶] A[.] Yes. [¶] Q[.] Nowhere in here do you mention anything about the memo saying you were not to report abuse, correct? [¶] A[.] Correct. [¶] Q[.] So is it safe to say then that, as you recall, the memo simply said that you were supposed to report neglect and abuse up the chain of command? [¶] A[.] Yes." Swindle also testified that the memo required employees to go up the chain of command about an abuse claim before reporting the abuse to the ombudsman.

Swindle attempts to characterize Res-Care's policy as nefariously prohibiting an employee from reporting abuse to outside agencies. In reality, Res-Care's policy required an employee to immediately report abuse to a supervisor and up the chain of command before reporting to an outside agency such as the ombudsman.*fn6

Given the undisputed facts before it, the court did not err in granting summary judgment on Swindle's claim for retaliation. The same analysis applies to Swindle's claim for wrongful termination. We apply the same burden-shifting approach to wrongful termination claims as to FEHA retaliation claims. An employer's showing of legitimate, nonretaliatory reasons for its actions will defeat an employee's claim, unless the employee can show the reasons are pretextual. (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1148-1152.) Again, Swindle failed to refute Cal-Res's given reasons for its disciplinary actions.

Granados's Termination

Like Swindle, Granados challenges each of Res-Care's disciplinary actions against her. Granados argues Res-Care retaliated against her for reporting abuse at its facility.

Granados labels the March 2006 disciplinary action for failing to wait for a background clearance as pretext, because Nichols trained her not to wait for a background check if she needed extra staff.

In her deposition, Granados admitted failing to wait for a background check was "[t]echnically" against Res-Care policy. However, Granados claimed Nichols trained her to ignore the policy if it meant being short-staffed.

While Granados may have been following Nichols's instructions in March 2006, such blind obedience does not explain her second infraction of Res-Care's policy on background checks in June 2006. This new employee physically and verbally abused a client. Res-Care's discipline of Granados stemmed from repeated violations of its policies, not from any retaliatory motive.

Granados's efforts to link her termination to Res-Care's desire to retaliate against her for reporting abuse finds no support in the record. Granados made her reports of abuse anonymously. She also testified she had no evidence that Nichols knew of her reports. Furthermore, Granados admitted Res-Care required abuse be reported to the ombudsman. Granados also testified she failed to report the abuse by an employee in June 2006 to the ombudsman.

Granados failed to refute Res-Care's legitimate reasons for disciplining and ultimately terminating her. The undisputed facts support the trial court's grant of summary judgment on both the retaliation and wrongful termination causes of action.


Granados argues the trial court abused its discretion in granting Res-Care's protective order. Granados argued that Res-Care's parent company, Res-Care, Inc., controlled Res-Care to such an extent that it was liable for Res-Care's conduct. Granados served requests for admissions on the parent company. She sought information about other subsidiaries nationwide. The trial court granted Res-Care's motion for a protective order, finding the requests overbroad and irrelevant.

According to Granados, the court erred in granting the motion in its entirety, since some of the requests were relevant to her claims against Res-Care. However, Granados requested information Res-Care had previously provided to her in the form of a declaration by a corporate officer. We find no abuse of discretion.


The judgment is affirmed. Res-Care shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

We concur: BLEASE , J. NICHOLSON , J.

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