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Ludovico v. Kaiser Permanente

United States District Court, N.D. California

July 25, 2014


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Motion for summary judgment by defendant. Motion granted in part and denied in part.

For plaintiff--John F. Prentice & Associates, by John Franklin Prentice, III, Sheila Anne Reid (lead attorneys)

For defendant Kaiser Permanente, aka Permanente Medical Group, Inc.--Kaufman Dolowich & Voluck, aka Kaufman, Dolowich, Voluck & Gonzo, by Kathleen M. Hurly (lead attorney), Gabriel Neil Rubin

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Hon. Edward M. Chen, U.S. District Judge


Plaintiff Julieta G. Ludovico, a nurse currently employed by Defendant The Permanente Medical Group, Inc. (" TPMG" ), filed the instant action against TPMG alleging claims for sexual harassment in violation of Title VII and the California Fair Employment and Housing Act (" FEHA" ). Plaintiff alleges a single incident of a co-worker assaulting her and making a sexually inappropriate statement. In addition to her Title VII and FEHA claims resulting from this incident, Plaintiff asserts that she suffered a mental disability as a result of the sexual harassment and that TPMG (1) failed to provide her a reasonable accommodation in violation of the Americans with Disabilities Act (" ADA" ) and FEHA and (2) retaliated against her when she complained of this disability discrimination. Plaintiff also brings unrelated disability discrimination and retaliation claims arising out of TPMG's alleged failure to accommodate a physical disability Plaintiff suffered as a result of a workplace injury. TPMG has moved for summary judgment on all claims.

For the following reasons, the Court GRANTS TPMG's motion to the extent it seeks summary judgment on Plaintiff's retaliation claims as well as her claims arising out of the alleged sexual harassment incident. However, the Court DENIES the motion to the extent it seeks summary judgment as to Plaintiff's disability discrimination claims predicated on Plaintiff's physical disability.


Plaintiff Julieta G. Ludovico is a registered nurse. Declaration of Julieta G. Ludovico ¶ 2 (" Ludovico Decl." ), Docket No. 69. For approximately thirteen years, Plaintiff worked as an emergency room nurse in TPMG's Vallejo facility. Id. She continues to work for TPMG as an advice nurse in the Vallejo Call Center. Id. ¶ 64.

A. Alleged Sexual Harassment and TPMG's Response

On February 17, 2010, at approximately 2:00 a.m., Plaintiff was at the nurses' desk in the emergency department in the Vallejo facility. Docket No. 65-1, at 2. An x-ray technician named Kevin was walking by the nurses' desk when Plaintiff and one of the other nurses told him " hi" as he walked by. Id. When Plaintiff said hi, she touched Kevin on his arm. Docket No. 65-1; Deposition of Julieta G. Ludovico at 275:9-21 (" Ludovico Depo." ), Docket No. 66-2. In response, Kevin grabbed Plaintiff by her right shoulder, " pulled [her] to him so that [she] was not free to leave, and told [her] he would take his big wet tongue and shove it into my mouth a few times, and he was sure I would like that." Ludovico Decl. ¶ 5. This incident was observed by multiple witnesses, with only slight differences in their accounts. For instance, a nurse at the nurses' desk reported that she " heard Kevin tell Julie he wanted to put his tongue in her mouth. I am not 100% [sic] as to what action he took. There was

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some contact, but not sure how much." Docket No. 65-1, at 12. Similarly, an emergency room doctor stated that he observed Plaintiff tell Kevin that she did not like something " at all" to which Kevin replied " [w]ell, then you'll really like it when I shove my big wet tongue into your mouth" and then laughed. Id. at 14. The doctor reported that Plaintiff responded that she did " not appreciate the way she was touched nor the way she was talked to afterwards." Id.

Plaintiff immediately reported the incident to the nurse shift supervisor, Angela Wilson, as an act of sexual harassment. Id. at 4. Plaintiff stated that the comment " made her feel nasty and unsafe" and she then " role played the whole incident" with Nurse Wilson to " figure out what she had done or said to make him approach her in that manner." Id. Plaintiff also reported that she now felt " unsafe to take a [patient] to the radiology dep[artment] at night by herself." Id.[1] Nurse Wilson asked whether Plaintiff needed to have another nurse take her shift, and Plaintiff declined. Id. She stated that she just needed a " few minutes to get herself together." Id.

On the day of the incident, Plaintiff met with Janis Lacy, an HR Employee and Labor Relations Consultant for TPMG. Declaration of Janis Lacy ¶ 1, 4 (" Lacy Decl." ), Docket No. 65. Ms. Lacy took Plaintiff's statement, met with her for 45 minutes, and took notes of the meeting. Id. ¶ 4. These notes, and Plaintiff's statement, largely corroborate the above accounts of the incident, with minor differences. Id.; Docket No. 65-1, at 6. On February 22, 2010, Ms. Lacy met with Kevin, his two radiology managers, and his union representative. Lacy Decl. ¶ 5. Kevin's account of the incident differed in material respects. He told Ms. Lacy that he and Plaintiff " often joked and laughed with one another" and that on the day in question, he had returned from a vacation and Plaintiff asked him for a hug. Id. According to Ms. Lacy's notes he responded by stating something to the effect of " I'll give you a kiss--come here, I'll kiss you in the mouth." Docket No. 65-1, at 9. Kevin apparently told Ms. Lacy he " would have apologized" if Plaintiff had expressed any concern about his statement. Lacy Decl. ¶ 5. He claimed both laughed and went on their way. Docket No. 65-1, at 9-10.

Ms. Lacy reports that her investigation ultimately determined that Kevin had engaged in an " inappropriate conversation" but that there was nothing to substantiate Plaintiff's claim that Kevin had grabbed her arm in a forceful manner. Id. ¶ 7. Kevin was suspended for two days, and ordered to avoid all contact with Plaintiff. Id.[2]

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On March 17, 2010, Plaintiff states that she encountered Kevin in the emergency department and, while nothing inappropriate occurred, she was " frozen with fear of another assault." Id. ¶ 9. Plaintiff called Ms. Lacy to inform her that Kevin was working in the emergency department, but did not receive a response. Id. Her next scheduled day of work in the emergency department in Vallejo was March 24, 2010--however, she had not heard back from Ms. Lacy regarding her March 17, 2010 complaint. Id. ¶ 11. Plaintiff asserts she sent an email to Ms. Lacy and the ER Nursing Director on March 24, 2010 complaining about having to still work in the area as Kevin and her fear of being attacked again and her need for " justice." Docket No. 70, at 8. Ms. Lacy responded, in part, by stating:

My advice to you is to continue working as you normally would and report to management or myself any instances that occur. We agree with you that this is a very important issue, and I can assure you that your complaint was not neglected.


The following day, March 25, 2010, a meeting was held between management of the emergency and radiology departments, representatives of the CNA (the nursing union), representatives of UHW (Kevin's union), and Plaintiff to discuss her concerns. Lacy Decl. ¶ 9. During this meeting, the parties discussed the fact that Kevin's duties as a radiologist technician often required him to go into the emergency department and that Plaintiff's nurse duties frequently required her to take patients to the radiology department, thus causing Plaintiff fear. Docket No. 65-1, at 16. Plaintiff expressed an interest in being transferred if it would not be possible to avoid contact with Kevin. Id. Ultimately, an agreement was reached which provided that Kevin: (1) was to avoid any contact with Plaintiff both inside and outside of work; (2) should " go out of [his] way when possible to avoid seeing her" ; (3) could not go into the emergency department break room; (3) would have to call the emergency department supervisor before coming to the department to do radiological exams and would be supervised while there and (4) would review the harassment policy and acknowledge he understood the policy. Id. at 22.

Plaintiff contends that TPMG's failure to remove Kevin from her worksite required her to " rearrange [her] work activities in order to accommodate Kevin so that [they] did not interact." Ludovico Decl. ¶ 13. For example, on May 31, 2010, Plaintiff was informed by her supervisor that she had to stop working on what she was doing and go into a conference room for around 20 minutes while Kevin was working in the area. Id. Plaintiff objected, but the supervisor informed her there was nothing she could do.

In her declaration, Plaintiff takes issue with TPMG's failure to transfer or otherwise remove Kevin from her work area. See, e.g. Ludovico Decl. ¶ 8 (claiming there were " several other Kaiser possible facilities ... to which Kevin could have been transferred" ). However, as just discussed, Plaintiff agreed, at least initially, to a resolution that did not provide for Kevin being transferred. Further, in her deposition, Plaintiff stated that she never requested that Kevin be transferred or fired. Ludovico Depo. at 299:20-25.

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On April 13 or 14, 2010, Plaintiff was instructed by her manager to transfer a patient to a hospital bed for admission--a task that would have required her to go, with the patient, by the radiology department. Ludovico Decl. ¶ 16; Lacy Decl. ¶ 14. Because of Plaintiff's concerns, her manager had another nurse escort the patient because, according to her report she did " not want [Plaintiff] to feel unsafe." Docket No. 65-1, at 26. Approximately 5 minutes later, Plaintiff informed her manager that she could not finish her shift and left work early. Lacy Decl. ¶ 14. During this exchange, Plaintiff was tearful and angry that the " management team" was not holding up the " agreement" that had been entered. Docket No. 65-1, at 26, 27. The emergency department manager contacted Plaintiff later that afternoon to see how she was doing and to determine whether she would be able to come into work or would require sick leave. Lacy Decl. ¶ 15. The department manager indicated that the conversation with Plaintiff was " difficult and her sentences were very disjointed." Docket No. 65-1, at 30. She relayed her fear and feeling of being " trapped and scared" while at work. Id. She also indicated that she had been advised to assert workers' compensation and see a doctor. Id.; Lacy Decl. ¶ 15.

That same day, Plaintiff called the Kaiser advice nurse line and set a date for an appointment to see a doctor for anxiety and emotional distress. Ludovico Decl. ¶ 17. On April 19, she met with Dr. Rosen who indicated that Plaintiff would " hopefully" be able to return to work on May 10. Docket No. 70, at 17. He further indicated as a treatment plan " relaxation to [reduce] stress" and " anti-anxiety medication." Id. at 18.

On April 27, 2010, Plaintiff filed a charge with the EEOC alleging discrimination on the basis of race, national origin, and age. Ludovico Decl. ¶ 18; Docket No. 70, at 20.

On April 30, a meeting was held with TPMG management, Plaintiff, and her union representatives. Lacy Decl. ¶ 18; Docket No. 65-1, at 39. During this meeting, Plaintiff stated that " the accommodations provided by the Emergency Department and Xray Departments were not workable, and then concluded with the request that the employee in Radiology either have his employment terminated or be permanently transferred to a different facility. If we were unable to fulfill this request, [Plaintiff] requested to transfer to the Vacaville Emergency Department." Docket No. 65-1, at 39. On June 1, 2010, Ms. Lacy sent an e-mail to Plaintiff's union representative, responding to Plaintiff's " request to have the radiology employee terminated or moved to another facility." Docket No. 65-1, at 37; Lacy Decl. ¶ 19. In this e-mail, Ms. Lacy stated: " Based on the findings of the investigation, the appropriate action has been taken with regard to the radiology employee. There will be no further action taken toward that employee with regard to this complaint." Docket No. 65-1, at 37.[3]

Plaintiff saw Dr. Wright on May 6, 2010 as part of her workers' compensation claim. Ludovico Decl. ¶ 19. He diagnosed Plaintiff with posttraumatic stress disorder and stated that she could return to work with " no restrictions on 7/12/2010." Docket No. 70, at 22. He further indicated that she could do modified work between May 11, 2010 through July 11, 2010, but indicated the following restriction:

This [patient] cannot be allowed to work in the Emergency Room of KSR Hosp. Vallejo so long as " Kevin" (X-ray tech)

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is working in that Building. The preferable solution is to transfer him so that the [patient] does not feel further victimized by her being transferred as she is the clear victim of workplace violence.

Id. Finally, the doctor noted that Plaintiff was " fully able to return to work at her other job at the David Grant Medical Center in Travuis, Ca." Id. Plaintiff states that in response to the doctor's note she was " taken off of the Emergency Department's work schedule altogether and placed off work for the two months [May through July 2010]." Ludovico Decl. ¶ 20.

In late June 2010, Plaintiff accepted, through her union representative, a transfer to an emergency department nurse position at TPMG's Vacaville facility. Docket No. 65-1 at 42. She states that this position was " more than a half hour's drive away from [her] house, and which [she] was required to travel at night due to [her] shift." Ludovico Decl. ¶ 23. Nonetheless, this was the action that she had previously requested in the event that Kevin was not transferred or terminated. See Docket No. 65-1, at 16, 39.

On September 17, 2010, Plaintiff filed a charge with the EEOC alleging retaliation on the basis of her having filed the earlier discrimination charge. Docket No. 71, at 2. The charge specifically points to TPMG's alleged failure to accommodate her psychological disability as reflected in Dr. Wright's note on May 6, 2010. Id.

B. Ms. Ludovico's Physical Disability and TPMG's Response

On November 3, 2011, Plaintiff injured her neck, shoulder, arm, and back while moving a patient from his bed at the TPMG Vacaville facility. Ludovico Decl. ¶ 26. Plaintiff asserts that her injury was caused by the failure of available staff to assist her in violation of hospital protocol and safety standards. Id. The emergency room doctor examined her and placed her off work for the following day. Id. She continued to experience pain in her shoulder and back and was seen by Dr. Samuel Brown on November 7, 2011. Id. ¶ 27. Dr. Brown diagnosed Ms. Ludovico with " sprain/strain, upper arm, back, strained shoulder, trapezius muscle." Id. Eventually, Dr. Brown placed Ms. Ludovico on modified duty through December 25, 2011 with limitations including limited reaching above her right shoulder; limited repetitive right hand motion; and no lifting, carrying, pushing, or pulling more than five pounds. Id. Plaintiff filed a workers' compensation claim and notified the emergency department manager, Kate Hesse, about the incident and complained about the " unsafe working conditions that contributed to [her] injury." Id. ¶ 28.

1. TPMG's Initial Response

When Plaintiff returned to work, she was " assigned menial tasks like greeter, which embarrassed and humiliated [her], or assigned to sit in a room at a computer and forbidden to be out on the floor." Id. ¶ 29. According to the " diary" of Ralph McMillan's--the Disability Manager assigned to Plaintiff's case--Plaintiff was assigned to the greeter position by Ms. Hesse until it was discovered that the position would not work with the limitation related to the use of her upper right extremity. Docket No. 64-1, at 2. Eventually, Mr. McMillan and Ms. Hesse assigned Plaintiff to perform quality assurance and chart review for the trauma department. Id.; Ludovico Decl. ¶ 29.

On December 16, 2011, Mr. McMillan met with Plaintiff and went over a Temporary Transitional Work Agreement (" TTWA" ) which Plaintiff then signed. Ludovico Decl. ¶ 30; Docket No. 64-1, at 2. According to Ms. Claudia Shafer, a Human Resources Consultant and former

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Manager of Disability Consulting, TTWAs do not provide for permanent work or positions, but rather provide " temporary tasks offered to assist disabled employees while they transition back to a permanent assignment." Declaration of Claudia Shafer ¶ ¶ 1-2, 5, Docket No. 63-1. These agreements are for 90 days, but there are limited conditions under which they may be extended for 90 additional days (for example, if a " medical event" is expected, such as surgery). Id. ¶ 5. They are designed to provide temporary work to injured employees while they transition into their regular positions. McMillan Decl. ¶ 5.

On December 27, 2011, Dr. Brown returned Plaintiff to work without any restriction. Ludovico Decl. ¶ 31; Docket No. 71, at 27 (Dr. Brown note indicating that the " patient was evaluated and deemed able to return to work at full capacity on 12/27/2011" ). Her tasks as an emergency room nurse required her to be able to lift patients into their bed, physically support them, pushing and pulling wheelchairs/gurney/carts, and reaching for IV bags. Ludovico Decl. ¶ 31. The day after Plaintiff returned to work, she could not perform these tasks without excruciating pain in her arm, neck and back. Id. She again saw Dr. Brown on December 30, 2011, and the doctor reinstated her previous work restrictions on lifting, pulling, pushing, and repetitive arm motions through January 6, 2012. Id.; Docket No. 71, at 29. In her deposition, Plaintiff states she then switched doctors partly because Dr. Brown " kept sending [her] back with no restrictions" even though she was still hurting." Ludovico Depo. at 90:1-21.

2. Plaintiff's Work Status Through 2012

Plaintiff's workers' compensation attorney referred Plaintiff to Dr. Douglas Grant of the Integrated Pain Management Medical Group on February 2, 2012. Ludovico Decl. ΒΆ 32; Ludovico Depo. at 90:18-21. On February 6, Dr. Grant issued an order describing certain required work modifications for Plaintiff, specifically: (1) no direct patient care; (2) no lifting over 15 pounds; (3) no pushing/pulling more than 15 pounds, no " overhead activity" ; and (4) no standing/walking for more than ...

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