United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [RE: DKT No. 8]
EDWARD J. DAVILA, District Judge.
Plaintiff Aida Oliva ("Plaintiff") brings suit against her former employer, the County of Santa Clara ("the County"), and one County employee, Barbara Traw ("Traw"), alleging: (1) discrimination-disparate impact in violation of Title VII and the Fair Employment and Housing Act ("FEHA"), (2) retaliation under the FEHA, (3) negligent hiring, training, supervision and retention in violation of 42 U.S.C. § 1983, (4) retaliation for exercising free speech in violation of 42 U.S.C. § 1983, (5) retaliation in violation of Labor Code §1102.5, (6) retaliation in violation of Health and Safety Code § 1278.5, (7) intentional infliction of emotional distress, and (8) retaliation for exercising free speech rights.
Presently before the Court is Defendants' motion for summary judgment which was heard before the Court on January 17, 2014. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the Court hereby GRANTS the motion.
On April 5, 2011, the County terminated Plaintiff for allegedly violating hospital policy. Defs.' Motion for Summary Judgment ("MSJ") at 7, Docket Item No. 8. Defendants contend Plaintiff failed to follow the hospital's bloodborne pathogen and infection control policies and knowingly exposed a hospital visitor to bloodborne pathogens. Id . Plaintiff argues that her termination was the result of discrimination on the basis of national origin, gender, and age, and that Defendants retaliated against her for exercising her First Amendment right and in violation of state laws. First Amended Complaint ("FAC") ¶¶ 2, 9, 18, 31, 45, Docket Item No. 3.
Plaintiff is a Clinical Registered Nurse III formerly employed by the County. Pl.'s Opp'n at 1, Docket Item No. 25. Plaintiff worked as a "per diem" nurse in the Mother-Infant Care Center ("MICC") of Santa Clara Valley Medical Center ("SCVMC") from October 1999 until she was released from her employment in April 2011. FAC ¶ 18, Dkt. No. 3. As a "per diem" nurse, Plaintiff did not have a permanent schedule but instead filled vacancies in the scheduling. Declaration of Joanne Cox ("Cox Decl.") ¶5, Docket Item No. 11. Nurses who work as "per diem" or "extra help" in the SCVMC are considered "at-will" employees. Id . Therefore, "per diem" nurses are not entitled to notice prior to termination and can be released from employment for any lawful reason. Cox Decl., Ex. 1, App. C, Dkt. No. 11.
On February 25, 2011, Plaintiff was in the process of administering required oral HIV medicine to a newborn baby of an HIV-positive mother under Plaintiff's care. FAC ¶ 18, Dkt. No. 3. This involved Plaintiff holding and supporting the baby's head with her left hand in an elevated position to prevent the baby from choking, while simultaneously with her right hand holding the medicine dropper into the baby's mouth and administering the baby's liquid medication. Declaration of Oliva Aida ("Oliva Decl.") ¶ 8, Docket Item No. 26. It is undisputed that Plaintiff was made aware the mother was HIV-positive prior to the start of her shift and that the mother requested to staff that her HIV-positive status be kept confidential. Id . It is also undisputed that Plaintiff knew that her HIV-patient had delivered by cesarian section, and that the dressings on her surgical wounds had been removed by the obstetric doctors earlier that same day. While administering the baby's liquid medication, Plaintiff observed her HIV-patient exit the shower and then proceed to accidentally drop a towel on top of her own feet. Id . Fearing for her patient's safety, but occupied with the newborn baby, Plaintiff contends that she made a "split second" decision and asked the HIV-patient's sister to pick up the towel before the HIV-patient tripped on it. Pl.'s Opp'n. at 2, Dkt. No. 31. Plaintiff alleges she perceived a clear and present danger and emergent hazard to the HIV-patient from the fallen towel. Oliva Dec. ¶ 9, Dkt. No. 26. It is undisputed that the sister of the patient picked up the towel and placed it in a hamper. Id.
Following this incident, Nurse Manager for the MICC, Traw, received a complaint from Laura Castillo ("Castillo"), the birth recorder. Defs.' MSJ at 4, Dkt. No. 8. Immediately following Castillo's complaint, Traw went into the patient's room and noticed that the patient was completing a complaint form as well. Traw Depo. at 269:21-270:5, Ex. 17. Traw then went to Pam Stanley ("Stanley"), then-Director of Inpatient Acute Care Nursing, to inform her of the situation. Id . Consistent with the practice of MICC management, Stanley directed Traw to send Plaintiff home until the hospital could hold an investigative meeting. Id .; see also id. at 277:11-278:10; 281:23-282:6. Traw then requested that Plaintiff come to her office, where Traw informed Plaintiff that there had been a complaint against her. Oliva Depo. at 184:23-185:10. Traw then told Plaintiff to leave the MICC and walked her out of the unit. Id. at 350:11-351:5. Traw also told Plaintiff she would not be scheduled to work until further notice, and that an investigative meeting would be held with Plaintiff and her union representation. Traw Depo. at 350:11-351:5, Ex. 17. On February 25, 2011, Stanley emailed Traw and stated that they were terminating Plaintiff and reporting her to the Board of Registered Nursing ("BRN") on February 28, 2011. Declaration of Baraba ("Traw Decl."), Ex. B, Docket Item No. 10.
On March 2, 2011, Plaintiff's lawyer sent an email on her behalf to an attorney in the Santa Clara County Counsel's office ("County Counsel") stating that he represented Plaintiff and complained of harassment, retaliation, and denial of due process and fairness. Oliva Depo. at 122:9-22, Ex. 7. On March 3, 2011, Traw sent a letter to the BRN to inform them that Plaintiff had been placed on administrative leave pending completion of an investigation for violation of bloodborne pathogen policies. Traw Depo., 296:12-16; 297:6-10; Ex. 23; Traw Dec. ¶ 5, Ex. C. According to Defendants, when Traw signed the letter she had no knowledge of Plaintiff's attorney's email from the previous day. Traw Dec. ¶ 5, Docket Item No. 10; Oliva Depo. at 123:14-21.
On March 8, 2011, Matt Gerrior ("Gerrior"), now Director of Inpatient Acute Nursing, met with Plaintiff and two RNPA representatives for an investigative meeting. Gerrior Depo. at 8:15-17; 50:19-51:25; Traw Depo., 292:4-10; Ex. 21. Based on Plaintiff's statements in the meeting, his investigation and discussions with the County's Labor Relations Department, Gerrior decided to terminate Plaintiff for her failure to follow bloodborne pathogen and infection control policies and procedures. Gerrior Depo. at 82:9-17. On April 5, 2011, Gerrior sent Plaintiff a letter terminating her employment. Gerrior Depo. at 80:4-12; Ex. 8. Plaintiff received her termination letter the following day on April 6, 2011. FAC ¶ 27, Dkt. No. 3. Gerrior testified at his deposition that he has never seen the email from Plaintiff's attorney. Id. at 79:21-3.
On September 27, 2011, Plaintiff filed a discrimination charge with the Department of Fair Employment and Housing ("DFEH") and the Equal Employment Opportunity Commission ("EEOC") alleging that Defendants discriminated and retaliated against her on the basis of race, color, national origin, and age. FAC ¶ 12, Dkt. No. 3; Oliva Depo. at 103:3-104:5, Ex. 2. Plaintiff did not include discrimination on the basis of gender in her charge. Id . She received a "right to sue" letter from the DFEH on September 30, 2011, and from the EEOC on December 20, 2011. FAC ¶ 12, Dkt. No. 3. Plaintiff also filed an Administrative "Tort Claim" with the Clerk of the Board on November 21, 2011. Id . The County rejected her claim on December 9, 2011. Id . Plaintiff then filed this lawsuit on November 21, 2011 against Defendants. Id.
A. Legal Standard Governing Motions for Summary Judgment
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. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex , 477 U.S. at 324-25; Soremekun v. Thrifty Payless, Inc. , 509 F.3d 978, 984 (9th Cir. 2007). If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson , 477 U.S. at 250; Soremekun , 509 F.3d at 984; see also FRCP 56(c), (e). The opposing party's evidence must be more than "merely colorable" but must be "significantly probative." Anderson , 477 U.S. at 249-50. Further, that party may not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce admissible evidence showing there is a genuine dispute of material fact for trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc. , 210 F.3d 1099, 1102-03 (9th Cir. 2000). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 1987).
Nevertheless, when deciding a summary judgment motion, a court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson , 477 U.S. at 255; Hunt v. City of Los Angeles , 638 F.3d 703, 709 (9th Cir. 2011). A district court may only base a ruling on a motion for summary judgment upon facts that would be admissible in evidence at trial. See In re Oracle Corp. Sec. Litig. , 627 F.3d 376, 385 (9th Cir. 2010); FRCP 56(c). Further, it is not a court's task "to scour the record in search of a genuine issue of triable fact" but is entitled to "rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan , 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotations omitted); see also Carmen v. San Francisco Unified Sch. Dist. , 237 F.3d 1026, 1031 (9th Cir. 2001) ("The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.")
B. Legal Standard Governing FEHA Actions
In a disparate treatment case, the plaintiff must show that intentional discrimination was the determinative factor in the adverse employment action. Hazen Paper Co. v. Biggins , 507 U.S. 604, 610 (1993). There are two ways of proving intentional discrimination: direct evidence and indirect or circumstantial evidence. Bragg v. E. Bay Reg'l Park Dist., C-02-3585-PJH, 2003 WL 23119278 (N.D. Cal. Dec. 29, 2003). Direct evidence is evidence that proves the fact of discriminatory animus without inference or presumption. Godwin v. Hunt Wesson, Inc. , 150 F.3d 1217, 1221 (9th Cir. 1998). Should a plaintiff prove intentional discrimination using indirect evidence, the district court invokes the analysis set forth in McDonnell-Douglas Corp. v. Green , 411 U.S. 792 (1973). This is because, in evaluating discrimination claims under FEHA, courts look to pertinent federal precedent and apply the McDonnell Douglas analysis. See Guz v. Bechtel Nat'l, Inc. , 24 Cal.4th 317, 354 (2000).
In McDonnell Douglas, the Supreme Court held that plaintiff bears the initial burden of establishing by a preponderance of the evidence a prima facie case of improper discrimination. A plaintiff can make a prima facie case by showing that: (1) she belongs to a protected class, (2) she was performing the job satisfactorily; (3) she was subjected to an adverse employment action; and (4) similarly situated individuals outside of her protected class were treated more favorably. St. Mary's Honor Center v. Hicks , 509 U.S. 502, 506 (1993). If a plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to present evidence sufficient to permit the factfinder to conclude that the employer had legitimate, nondiscriminatory reason for the adverse employment action. Id. at 506-07. Should defendant carry this burden of production, the burden of proof shifts back to the plaintiff to demonstrate that the employer's articulated reason is a pretext for unlawful discrimination by either directly persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered reason is unworthy of credence. Texas Dep't of Comty. Affairs v. Burdine , 450 U.S. 248, 256 (1981).
To establish pretext, very little direct evidence of discriminatory motive is required, but if circumstantial evidence is offered, such evidence has to be "specific" and "substantial." Godwin v. Hunt Wesson, Inc. , 150 F.3d 1217, 1222 (9th Cir. 1998); Cornwell v. Electra Cent. Credit Union , 439 F.3d 1018, 1028 n. 6 (9th Cir. 2006) (merely denying the credibility of defendant's proffered reason for the challenged employment action or relying solely on plaintiff's subjective beliefs that the action was unnecessary are insufficient to show pretext); Wallis v. J.R. Simplot Co. , 26 F.3d 885, 890 (9th Cir. 1994) ("[A] plaintiff cannot defeat summary judgment simply by making out a prima facie case" to show pretext or "denying the credibility of the [defendant's] witnesses") (internal citations omitted) (alteration in original). The McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare and usually is proved circumstantially. Id. at 354. Through successive steps of increasingly narrow focus, the McDonnell Douglas test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained. Id.
C. Whether Defendants Are Entitled to Summary Judgment on Plaintiff's Actions
Plaintiff asserts the following eight causes of action: (1) disparate treatment discrimination in violation of FEHA (first cause of action); (2) retaliation in violation of FEHA (second cause of action); (3) retaliation in violation of Labor Code § 1102.5 (fifth cause of action); (4) retaliation in violation of Health and Safety Code § 1278.5 (sixth cause of action); (5) intentional infliction of emotional distress (seventh cause of action); and three violations of 42 U.S.C. § 1983 (6) negligent hiring, training, supervision and retention (third cause of action), (7) retaliation for exercising free speech (fourth cause of action), and (8) retaliation for exercising free speech and petition (eighth cause of action).
For the reasons stated below, the Court GRANTS Defendants' Motion in its entirety.
i. FEHA Discrimination (First Cause of Action)
a. Defendants' FEHA Administrative Exhaustion Challenge
As a threshold matter, the Court first analyzes whether Plaintiff's gender discrimination claim was properly exhausted. The parties do not dispute whether Plaintiff exhausted her administrative remedies as to her racial and age discrimination claims. Defendants argue that Plaintiff's failure to allege gender discrimination in her DFEH/EEOC claims precludes her from raising the claim in her civil complaint. Defs.' MSJ at 8, Dkt No. 8. Plaintiff counters by arguing that her judicial complaint may encompass discrimination based on gender because it is "like or reasonably related" to the allegations made in her DFEH/EEOC charge. Pl.'s Opp'n at 14, Dkt. No. 25. Alternatively, Plaintiff argues her claim for gender discrimination is actionable because Plaintiff submitted a "Pre-Complaint Questionnaire-Employment" form to these agencies on September 12, 2011 that included "sex" as a basis for her alleged discrimination. Pl.'s Opp'n at 14, Docket Item No. 25. Plaintiff argues that DFEH and EEOC's oversight in failing to include it on her EEOC and DFEH charges should not preclude her from including it in her civil complaint.
Prior to bringing a civil suit on an FEHA cause of action, a plaintiff must exhaust her administrative remedies. See Rojo v. Kliger , 52 Cal.3d 65, 83 (1990). Exhaustion requires filing a complaint with the DFEH within one year of the date of the alleged unlawful practice and then obtaining a notice of the right to sue. Cal. Gov't Code § 12960; see Romano v. Rockwell Int'l, Inc. , 14 Cal.4th 479, 492 (1996). Failure to exhaust deprives the court of jurisdiction over a plaintiff's cause of action. Miller v. United Airlines, Inc. , 174 Cal.App.3d 878, 890 (1985). "The administrative charge requirement serves the important purposes of giving the charged party notice of the claim and narrow[ing] the issues for prompt adjudication and decision.'" Park v. Howard Univ. , 71 F.3d 904, 907 (D.C. Cir. 1995) (quoting Laffey v. Northwest Airlines, Inc. , 567 F.2d 429, 472 n. 325 (D.C. Cir. 1976)).
For a plaintiff "[t]o exhaust his or her administrative remedies as to a particular act made unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts." Martin v. Lockheed Missiles & Space Co. , 29 Cal.App.4th 1718, 1724 (1994). "The scope of the written administrative charge defines the permissible scope of the subsequent civil action." Rodriguez v. Airborne Express , 265 F.3d 890, 897 (9th Cir. 2001) (citing Yurick v. Super. Ct. , 209 Cal.App.3d 1116, 1121-23 (1989)). "Allegations in the civil complaint that fall outside of the scope of the administrative charge are barred for failure to exhaust." Id.
However, these procedural requirements are to be construed liberally in order to achieve the comprehensive purposes of FEHA. See Cal. Gov't Code § 12920; Cal. Gov't Code § 12993(a). Therefore, district courts do have jurisdiction over a civil claim if it is "reasonably related to the allegations of the [administrative] charge." Oubichon v. North Am. Rockwell Corp. , 482 F.2d 569, 571 (9th Cir. 1973); see Nazir v. United Airlines, Inc. , 178 Cal.App.4th 243, 268 (2009) ("[W]hat is submitted to the DFEH must not only be construed liberally in favor of the plaintiff, it must be construed in light of what might be uncovered by a reasonable investigation"). Thus, "[i]t is sufficient that the [DFEH] be apprised, in general terms, of the alleged discriminatory parties and the alleged discriminatory acts." Nazir , 178 Cal.App.4th at 267 (internal quotation marks and citation omitted).
In this case, the Court is not convinced that Plaintiff's gender discrimination claim is "reasonably related" to her racial and age discrimination allegations such that they may be considered properly exhausted by the charged allegations. Plaintiff argues that it is "highly likely" that an investigation into Defendants' retaliatory conduct would have uncovered all grounds upon which Defendants based their retaliation and thus retaliation founded upon one classification is "like or reasonably related" to retaliation based on another classification. Pl.'s Opp'n at 14, Dkt. No. 25. Plaintiff's argument is wholly conclusory. Absent any factual or legal authority to support this conclusory statement, Plaintiff has fallen short of meeting her burden of demonstrating to the Court why an investigation regarding discrimination on the basis of age or race would reasonably trigger an investigation into discrimination on the basis of gender. See ...