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Elenita H. Mondares v. Kaiser Foundation Hospital

January 3, 2013


The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court


Defendants Kaiser Foundation Hospitals ("KFH"), Southern California Permanente Medical Group ("SCPMG"), and Deborah Revier ("Revier") (collectively, "Defendants") have filed a motion for summary judgment. For the reasons discussed below, the Court GRANTS the motion for summary judgment.


Plaintiff Elenita H. Mondares ("Plaintiff") began working at SCPMG as a Laboratory Assistant in May 1999. Part of her duties as Laboratory Assistant included drawing blood and processing specimens. She was subsequently promoted to Clinical Laboratory Scientist ("CLS") in September 2002, a position that she held until her termination on November 13, 2007. During the entire time she was employed as a CLS at SCPMG, Plaintiff was a member of the trade union United Food and Commercial Workers, Local 135.

Plaintiff usually worked the weekend graveyard shift at a 24-hour laboratory, from 10:00 p.m. on Saturday night until about 8:00 a.m. on Sunday morning, and then again on Sunday night until Monday morning. Depending on the time of day, Plaintiff reported either to the morning supervisor, Defendant Deborah Revier, or the afternoon supervisor, Diane Giles. Ms. Giles and Defendant Revier both reported to Laboratory Director Linda Mercurio. Plaintiff has testified, and Defendants have not disputed, that Ms. Mercurio, Ms. Giles, and Defendant Revier are all Caucasian. Plaintiff has stated that she is Asian/Filipino.

As a CLS, Plaintiff was primarily responsible for performing tests for clinical laboratory procedures on patient specimens such as blood and urine, and reporting test results. Such tests are done in various departments in the laboratory, including Hematology, Urinalysis, and Chemistry. Plaintiff was also responsible for checking the laboratory equipment and making reagents and quality control materials for use in the laboratory. Reagents are chemicals used to conduct the different tests. Quality control materials are used to test the validity of the reagents being used. While Plaintiff was technically required to run a quality control check on each batch of reagent she prepared, she has alleged that the informal procedure established at the laboratory was that if someone did not have enough time to run the control, he or she would write on the container and/or communicate to the person starting the next shift that the control had not been run on the batch of reagent.

In February 2007, Plaintiff was issued a "Level 4 Corrective Action" for an incident in October 2006 in which SCMPG determined that she had issued the wrong type of blood for an infant,*fn1 although Plaintiff denies this. There is insufficient evidence in the record regarding a five-level disciplinary process that Defendants refer to in their statement of undisputed facts. However, it is undisputed that in February 2007, Plaintiff was required to sign a "Last Chance Agreement" agreeing to change her behavior or terminate her employment. There do not appear to have been any prior disciplinary actions against Plaintiff.

The next disciplinary action taken against Plaintiff related to the events of October 8, 2007. Plaintiff was working in the Hematology/Coagulation Department. Toward the end of her shift that day, Plaintiff made additional batches of the reagents Innovin, DVT, and Factor 10 because she knew the laboratory was short-staffed. However, she did not have time to run the quality control tests and was not authorized to work overtime. According to Plaintiff, she put the bottles of reagent in the laboratory refrigerator and placed brown tape around the bottles, marking the tape with her initials, the date and time, and "not QC'd" to indicate that she had not run the control. She also testified at her deposition that she told two Clinical Lab Scientists starting the morning shift, Ms. Vonnie Thorson and Mr. Terry Moelter, that she had made the reagents but did not have time to run the quality control tests on them. She did not tell Defendant Revier because Ms. Revier was not in the laboratory and Plaintiff was unable to find her.

Defendant Revier testified at her deposition that around noon that day, another CLS who had been assigned to work in the same department, Christy Donato, ran quality control tests on reagents that she herself had made, which came back in the acceptable range. Ms. Donato then proceeded to run patient tests and notified Defendant Revier at approximately 4:00 p.m. that there was a problem with the results.*fn2 Defendant Revier told Ms. Donato to stop releasing the test results. They then ran a quality control test on the reagent (Innovin) that Ms. Donato had been using, and the results were outside the acceptable range. Defendant Revier then threw away the Innovin so it would not be used and she and Ms. Donato made a new batch that they then tested for quality control. Since the new reagent was in the acceptable range, they began re-running the tests for the patients whose results had initially come out the same, and received different results. Defendant Revier testified that she concluded that the abnormal results started occurring when Ms. Donato had begun using the reagent that Plaintiff had left in the refrigerator. Ms. Donato told her that she had not seen any label saying "Not QC'd" on the reagent Plaintiff had prepared, and was eventually also disciplined through a Level 2 Corrective Action for her role in releasing the erroneous test results. Defendant Revier stated in a separate declaration that after rerunning all the tests, it was discovered that at least one patient had a critical value*fn3 test result that usually requires immediate hospitalization and other patients had critical values that require immediate physician notification. Revier Decl. at 3 (ECF No. 24-7). Plaintiff disputes all of the above, but has not offered any evidence in contradiction.

Two days later, on October 10, Plaintiff received a phone call from Diane Giles, the night-shift CLS laboratory supervisor, who asked if Plaintiff had made the reagents on that shift and whether she had run the quality control tests. Plaintiff explained what happened, and inquired why Ms. Giles was asking, and Ms. Giles told her that there was a problem regarding the test results for 100 patients.

Then, on October 15, Ms. Mercurio called Plaintiff and told her that she wanted to meet with Plaintiff and her union representative later that morning to discuss the incident. At the meeting, before the union representative arrived, Ms. Mercurio asked Plaintiff to explain what happened on the morning of October 8, which she did voluntarily. Defendant Revier then joined the meeting upon Ms. Mercurio's request, and told Plaintiff that she had made the reagent incorrectly. At the end of the meeting, Ms. Mercurio placed Plaintiff on paid suspension and told her that she would investigate the matter.

On November 2, 2007, Plaintiff and her union representative met with Ms. Giles and another CLS supervisor Diane Johnson as part of the investigation, and Plaintiff explained again what had happened. Finally, on November 13, 2007, Plaintiff and her union representative met again with Ms. Giles and Ms. Johnson, and Plaintiff was told that her employment was being terminated. She was also given a form setting forth the reasons for her termination, which included the determination that she made reagent incorrectly with potentially serious results for the patients, as well as citing to the prior Level 4 Corrective Action. See Def. Mot. Summ. Judg., Ex. L (ECF No. 24-5 at 50). It also states that during the course of the investigation, management also discovered that on September 17, 2007, Plaintiff had failed to run a critical value list at the end of her shift and did not call a patient's critical value in to a physician. See id.

Plaintiff's Second Amended Complaint ("SAC") alleges causes of action for (1) employment discrimination based on race in violation of Cal. Gov't Code § 12940; (2) employment discrimination based on age in violation of Cal. Gov't Code § 12940; (3) wrongful termination in violation of public policy; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; (6) breach of contract; (7) breach of implied contract to terminate only for good cause; (8) breach of the covenant of good faith and fair dealing; and (9) defamation of character.

On March 20, 2012, Defendant filed its motion for summary judgment, or, in the alternative, partial summary judgment.


Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure if the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to establish an essential element of the nonmoving party's case on which the nonmoving party bears the burden of proving at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary facts ...

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