Ronald W. Watson, Jr. vs. Dignity Health

ID: 16039062174

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TENTATIVE RULING

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the Issues identified in the Notice of Motion/Separate Statement and which of the Undisputed Material Facts offered by the moving defendant and/or the Additional Material Facts offered by plaintiff will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendants Dignity Health (“Dignity”) and CommonSpirit Health’s (“Common Spirit”) (collectively, “Defendants”) motion for summary judgment or, in the alternative, summary adjudication against Plaintiff Ronald Watson Jr. (“Plaintiff”) is ruled upon as follows.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing counsel and advise of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If

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moving counsel is unable to contact opposing counsel prior to the hearing, moving counsel is ordered to appear at the hearing by Zoom or in person.

Evidentiary Issues

Defendants’ objections are ruled upon as follows. Objection Nos. 1-3 are SUSTAINED. Objection Nos. 4-6 are OVERRULED.

Plaintiff did not submit written objections.

Background

Plaintiff’s Complaint

This is an employment action under the Fair Employment and Housing Act (“FEHA”). Plaintiff is African-American and alleges he was discriminated against due to his race. Plaintiff alleges that he was initially hired by Dignity in 2012 as a Seasonal/Casual/On Call/Supplemental Anesthesia Technician-R. On April 20, 2014, Plaintiff became a full-time Anesthesia Technician-R in the Surgery Department at Methodist Hospital. In 2019, Dignity merged with Catholic Health Initiatives to form Common Spirit.

Plaintiff alleges that in June of 2020, Common Spirit’s CEO sent correspondence to Dignity employees announcing that those who had worked with and been exposed to COVID-19 patients would receive a one-time $1,000 payment as a stipend or gift. Plaintiff alleges that although his employment required him to be in close contact with COVID patients, his manager/supervisor, Michele Stalter, did not submit Plaintiff’s name when she submitted a list of employees who should receive the $1,000 payment. Plaintiff further alleges that two employees subsequently protested to Ms.

Stalter about not being included on the list, and those two employees, who were not African-American, eventually received the payment. Plaintiff complained to Human Resources about not receiving the payment and Ms. Stalter’s alleged racial animus, but his concerns were allegedly dismissed and he did not receive the $1,000 payment.

Plaintiff alleges that in December of 2020, he filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) over not receiving the payment. After filing this EEOC complaint, Plaintiff alleges he started experiencing retaliation from Ms. Stalter. Plaintiff alleges that he then filed a second EEOC complaint in June of 2021 related to the retaliation and that this second complaint led to further retaliation. Specifically, Plaintiff alleges that Ms. Stalter ordered another manager to direct Plaintiff to leave his post and assist with duties on another floor that were not part of his regular job duties. Plaintiff alleges that he was in the process of preparing rooms for surgery and thus did not leave his post, resulting in the other manager berating

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Plaintiff. Plaintiff claims that Ms. Stalter orchestrated this conflict to create grounds for discipline against Plaintiff.

Plaintiff then alleges that he took a leave of absence in May of 2021 for approximately one month due to the treatment he endured from Ms. Stalter. Upon his return, Plaintiff attended a meeting with Human Resources and his union representative to discuss the incident involving the other manager sent by Ms. Stalter to direct Plaintiff to assist on another floor. Plaintiff was told he would be written up for insubordination as a result of the incident. During a break in the meeting, Plaintiff spoke with his union representative, Irene, and became visibly and audibly animated due to his frustration with being written up.

Defendants’ Human Resources Director Renee Andrae overheard Plaintiff and asked Irene if Plaintiff was harassing her, which Irene denied, and both Irene and Plaintiff explained that they were longtime friends. Approximately 25 minutes after the meeting ended, Plaintiff was told he was being placed on an indefinite leave for creating a hostile work environment by harassing his union representative and was forcibly removed from the property. Plaintiff alleges this conduct was discriminatory and retaliatory due to his race and his EEOC complaints.

Plaintiff was allowed to return to work approximately three weeks later and was placed on a Performance Improvement Plan that limited his job duties and the tasks he was permitted to perform. Plaintiff was also barred from performing any hands-on tasks with patients because he lacked the requisite certification, although Plaintiff alleges his lack of certification was not a concern before his return to work. On September 28, 2021, Dignity terminated Plaintiff’s employment, citing unsatisfactory performance.

Plaintiff’s complaint includes five causes of action: (1) race discrimination under FEHA; (2) hostile work environment under FEHA; (3) retaliation under FEHA; (4) failure to prevent harassment, discrimination, and retaliation under FEHA; and (5) wrongful termination in violation of public policy.

Defendants’ Motion

Defendants assert that the $1,000 payments were part of a special, one-time award given “to a variety of direct and indirect caregivers who delivered difficult and vital care and other important support to patients with COVID-19.” (Mot. MPA, p. 7:14-15.) Defendants further assert that the award was discretionary and that eligibility for the award was “based on the employee’s position and the role played in COVID-19 support.” (Mot. MPA, p. 7:16.) Anesthesia Technicians, like Plaintiff, were not included as part of the eligible positions. (Jones Decl., Exhs. J and K.) Defendants submit Plaintiff’s deposition testimony in which he acknowledges that African- Americans and non-African-Americans did and did not receive the award.

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Defendants’ also identify several purported incidents of insubordination by Plaintiff in their brief. However, the facts related to most of these incidents are not included in Defendants’ separate statement. Generally, “all material facts must be set forth in the separate statement. ‘This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.’” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.) The Court recognizes that some cases have held that the Court maintains discretion to consider evidence not included in the separate statement. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315-316.) Even so, the Court exercises its discretion and declines to consider the incidents not included in Defendants’ separate statement.

The only incident included in the separate statement involved a change in Plaintiff’s start time. On July 16, 2021, Defendants informed Plaintiff that his shift would be changing, and he would be scheduled to begin his work day at 6:30 a.m. instead of 5:45 a.m., effective August 9, 2021. Defendants reminded Plaintiff of the change on August 4. Plaintiff then took a leave of absence from August 5 through August 19. When Plaintiff returned on Friday, August 20, he clocked in at 5:45 a.m. and was reminded that he was scheduled to start at 6:30 a.m.

On August 23 and 24, Plaintiff’s next two work days, he again clocked in at 5:45 a.m. On August 24, Plaintiff attended an investigatory meeting related to his failures to clock in at the correct time. Plaintiff then called in sick the next two days before initiating a 30-day leave of absence beginning on August 27, 2021. Plaintiff returned to work on September 28, 2021 and was terminated for unsatisfactory job performance.

Plaintiff’s Opposition

Plaintiff first submits that from the beginning of his employment in 2007, he was in good standing and received positive performance reviews until Stalter took over his department in or around 2019.

Regarding the $1,000 payment, Plaintiff contends that he received a letter from Common Spirit’s CEO, Lloyd H. Dean. Mr. Dean’s letter was addressed, “Dear Colleague,” and stated:

I am pleased to announce that you will be receiving a special COVID-19 Caregiver Award this year. This one-time award of $1,000 was approved by the CommonSpirit Health Board of Stewardship Trustees and is intended to express our sincere gratitude and recognition to a variety of direct and indirect caregivers throughout our ministry who delivered difficult and extremely vital care and other important support to patients with COVID-19.

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Your eligibility for the Special COVID-19 Caregiver Award is based on:

 Your position and the role you played in providing COVID-19 support;  Your active working status at the time of the award payout; and  Review and feedback from local leaders and HR at our various care sites.

You will receive your special COVID-19 Caregiver Award via check or direct deposit on December 4, 2020. Please remember that the payment of this award is discretionary, and that the award is taxable.

(Watson Decl., Exh. A, p. 1.)

With Mr. Dean’s letter, Plaintiff also received a letter from Dignity’s Human Resources Director, Renee Andreae, providing additional information about the award. Ms. Andreae stated, among other things, “This one-time, discretionary award is based on the employee’s position and the role played in COVID-19 support, and the specific criteria has been reviewed by local leaders, Human Resources and members of the Executive Leadership Team.” (Watson Decl., Exh. A, p. 2.) The letter also noted that the award was intended “to recognize employees who were the most crucial in our COVID efforts,” and that Defendants “were not in position to uniformly award everyone due to a fixed budget and therefore had to select individuals who met the criteria above.” (Watson Decl., Exh. A, p. 2.)

Plaintiff asserts that he worked directly with COVID-19 patients and was required to be near their mouths as a technician assisting with administering anesthesia. Plaintiff emphasizes that Defendants acknowledge that Plaintiff regularly worked closely with COVID patients. Plaintiff further argues:

Neither CEO Dean’s correspondence nor HR Director Ms. Andreae’s correspondence indicated a list of “[e]mployees in the following specific position eligible to receive the award” as the Defendant’s Motion disingenuously represents. It is disputed whether Dignity Health ever specified criteria on which employees would receive the award. Indeed, the letter was sent to Mr. Watson via his work e-mail and expressly said “you will be receiving a special COVID-19 Caregiver Award this year of $1,000 and is intended to express our sincere gratitude and recognition to a variety of direct and indirect caregivers throughout our ministry who delivered difficult and extremely vital care and other important support to patients with COVID-19.”

(Opp. MPA, pp. 8:27-9:7.)

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According to Plaintiff, Stalter had discretion to determine who in her department would receive the payment. However, Plaintiff’s “name was not submitted, as he was the only African- American anesthesia technician and employee around COVID-19 patients who did not receive the Caregiver Award.” (Opp. MPA, p. 9:12-14.) Plaintiff avers that Stalter “submitted the names of all employees [in] her Operating Room’s department, except the African-Americans, to receive the $1,000.00 payment.” (Opp. MPA, p. 9:15-16.)

When Plaintiff asked Stalter about the award, she falsely claimed she had no control over who received it. In August of 2020, Plaintiff reported to Human Resources that he had not received the $1,000 payment and asserted that Stalter did not submit his name because of her racial animus towards African-American employees. Plaintiff then attended a meeting with Human Resources and other administrators in an attempt to “determine the requirements for employees to receive the $1,000.00 payment.” (Opp.

MPA, p. 9:25.)

After the aforementioned meeting did not address Plaintiff’s concerns over the payment, he filed an EEOC complaint. Plaintiff asserts he then suffered retaliation in the form of the incident alleged in the complaint in this action related to Stalter having another manager direct Plaintiff to assist in another department when he had rooms in his own area of responsibility that he needed to prepare for surgery.

Regarding the change in his shift, Plaintiff asserts that Knapp “unilaterally changed [his] schedule without clearing the schedule change through the Service Employee Internation[al] Union.” (Opp. MPA, p. 10:20-21.) The shift change was not workable for Plaintiff because he needed to pick up his children before 3:00 p.m., and starting 45 minutes later would cause him to be late for this responsibility. Plaintiff contends that the implementation of the shift change was done in retaliation for his EEOC complaint.

Plaintiff confirms that after he returned from leave in August of 2021, he met with Human Resources and his union representative and became visibly upset while talking with his union representative. Plaintiff contends he was upset because he was being written up. Plaintiff also confirms that Ms. Andreae overheard the conversation and asked the union representative if Plaintiff was harassing her, but Plaintiff and the representative explained that they were longtime friends and that Plaintiff’s frustration was not directed towards the representative. After the meeting, Plaintiff contends that he was forcibly removed from the property, and Knapp claimed he was trespassing because he had already been suspended, even though Plaintiff had not been told he was suspended at that time.[1]

Legal Standard

Summary judgment must be granted if all the papers submitted show that there is no triable issue

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as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c(c); Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35.) Summary judgment is properly granted only if the moving party's evidence establishes that there is no issue of material fact to be tried. (Upson v. Superior Court (1982) 31 Cal.3d 362, 374.) A judge may not grant summary judgment when any material factual issue is disputed. (O’Riordan v. Federal Kemper Life Assur. (2005) 36 Cal.4th 281, 289.)

In evaluating a motion for summary judgment or summary adjudication the Court engages in a three-step process. First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) The Court cannot consider an unpled issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff's cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, quoting Code Civ. Proc. § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff's cause of action. (Saelzer v Advance, Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, 25 Cal. 4th at pp. 853-55.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make “an affirmative showing” in support of its motion. (Id. at pp. 854-855, fn. 23.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (Code. Civ. Proc. § 437c(p); see generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-27.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal. 4th 826 at p. 843.)

There is a triable issue of material fact only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion. (Id. at 850.) The trial court's function in ruling on the motion is to determine whether such issues of fact exist, not to decide

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the merits of the issues themselves. (Furla v. Jon Douglas Co. (1998) 65 Cal. App. 4th 1069, 1076-77.) Whether or not a disputed fact is “material” is determined by the law applicable to the legal theories put in issue by the complaint. (Anderson v. Heart Federal Sav. & Loan Assn. (1989) 208 Cal. App. 3d 202, 210.)

Additionally, while a summary adjudication motion is treated largely the same as one for summary judgment, there are a few important differences. Subdivision (b) of Rule 3.1350 of the California Rules of Court explicitly mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another difference is that summary adjudication cannot be granted unless it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or question of duty. (Code Civ. Proc. § 437c(f)(1).)

Here, Defendants’ notice of motion and separate statement do not contain the verbatim language identifying the issues presented for summary adjudication as required by rule 3.1350(b) in that the language of Issues 1 and 8 in Defendants’ notice of motion differs significantly from the language used in Issues 1 and 8 as stated in Defendants’ separate statement. Failure to comply with rule 3.1350(b) may constitute sufficient grounds to deny a motion for summary adjudication. (See Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728.) The Court finds that Defendants’ failure to comply with the mandatory rules for providing proper notice of the issues presented for summary adjudication is sufficient grounds in this case for denying Defendants’ motion as to Issues 1 and 8.

However, even if Defendants had complied with rule 3.1350(b), the Court concludes that additional reasons exist to deny Defendants’ motion as set forth below.

Discussion

Failure to Exhaust Administrative Remedies

“Before filing a civil action alleging FEHA violations, an employee must exhaust his or her administrative remedies with DFEH. Specifically, the employee must file an administrative complaint with DFEH identifying the conduct alleged to violate FEHA. At the conclusion of the administrative process, which may or may not include an investigation or administrative remedies, DFEH generally issues the employee a right-to-sue notice.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 153.)

Defendants contend that Plaintiff failed to exhaust his administrative remedies before filing suit with respect to the majority of his claims. Specifically, Defendants contend that Plaintiff only

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filed a single EEOC complaint on February 8, 2021 in relation to the $1,000 award payment. Defendants contend that this is the sole administrative charge Plaintiff produced in discovery and identified in his interrogatory responses. Defendants also contend that Plaintiff testified at his deposition that this was the only administrative charge he filed.

With his opposition, Plaintiff clarifies that he filed his first EEOC complaint on December 15, 2020. Plaintiff then asserts that he filed a second complaint on June 22, 2021, followed by a third complaint on February 17, 2022. Plaintiff asserts that he received a right-to-sue notice the same day he filed the third complaint, and he filed this lawsuit one day later on February 18, 2022. Plaintiff includes copies of all three complaints as exhibits to his declaration. (Watson Decl., Exhs. B-D.)

Defendants object to Plaintiff’s claims that he filed subsequent administrative complaints.[2] Defendants cite Jogani v. Jogani (2006) 141 Cal.App.4th 158, which stated, “[I]n opposing a summary judgment motion, a plaintiff may not create a disputed issue of fact by contradicting his or her deposition testimony with an affidavit or declaration.” (Id. at p. 177, citing D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-22.) Defendants also cite generally to Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270 for the proposition that “[c]ourts have broad discretion to exclude untimely evidence which a plaintiff failed to produce in response to unobjectionable discovery demands.” (Defendants’ Objections, p. 3:22-24.)

However, Thoren involved a ruling at trial that a party who identified only one witness to an auto accident in his discovery responses was limited to calling only that witness to testify as to the nature of the accident scene. (Thoren, supra, 29 Cal.App.3d at p. 275.) Thus, Thoren is distinguishable on the basis that it involved a different procedural posture.

The Court is not persuaded that the D’Amico rule applies here to bar Plaintiff from introducing the subsequent administrative complaints with his opposition. For one, the interrogatory response cited by Defendants in which they claim Plaintiff identified only the initial administrative complaint do not unequivocally state that this was the only complaint Plaintiff filed. (See Jones Decl., Exh. C, pp. 24-27.) While the interrogatory, which is Employment Form Interrogatory No. 208.1, asks Plaintiff whether he filed any administrative complaint and to provide certain information as to each complaint, Plaintiff’s response is a lengthy narrative that essentially restates many of the allegations in his lawsuit.

The Court cannot conclude that this response flatly contradicts the existence of additional administrative complaints. (See Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.4th 594, 606-607; see also Ahn v. Kumho Tire U.S.A, Inc. (2014) 223 Cal.App.4th 133, 145-146.)

Nor does the Court believe Plaintiff’s deposition testimony flatly contradicts the existence of the additional administrative complaints he offers in opposition to Defendants’ motion. The

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deposition questions posed by Defendants’ counsel inquired whether Plaintiff had filed any other “charges of discrimination.” (See Jones Decl., Exh. G, pp. 30:19-31:7.) While Plaintiff stated in his March 5, 2025 deposition that he had not filed any other charges of discrimination, the portions of the deposition transcript before the Court indicate Plaintiff also testified he had filed at least one of other charge with the EEOC, that being in June 2021 for wrongful termination. (Id. at p. 31:9-11.)

Thus, Defendants were on notice prior to filing their motion on March 14, 2025 that Plaintiff had, according to his own testimony, filed at least one other “charge” in June 2021. Yet, the record does not indicate Defendants ever sought to obtain these materials through the supplemental discovery before filing the instant motion on March 14, 2025. Further, this is not a situation where Plaintiff is submitting a contradictory declaration without corroboration; in such a scenario, application of the D’Amico rule makes sense.

Here, the subsequent administrative complaints and the February 17, 2022 right-to-sue notice exist and are before the Court. Defendants do not dispute the authenticity of these documents. The Court cannot turn a blind eye to evidence before it and grant summary judgment based on a factual fiction.

Additionally, “in the absence of a willful violation of an order for disclosure,” a trial court is not justified in excluding evidence submitted with an opposition to a motion for summary judgment. (Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334, 1349, emphasis in original.) “[I]n the absence of an evidentiary sanction for discovery abuse imposed under [former] subdivision (k) or (l) of section 2030, there is no general bar on introducing previously undisclosed evidence in opposition to a summary judgment motion.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1329.) Here, there is no order directing Plaintiff to disclose anything, and although it is unclear why the subsequent administrative complaints were not identified when they perhaps could have been, there is no evidence of willful suppression.

Thus, Defendants’ motion for summary adjudication as to Issues 1 and 6 on grounds of failure to exhaust administrative remedies is DENIED.

Race Discrimination (First Cause of Action)

California has adopted the three-stage burden-shifting test for discrimination set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Ibid.) The McDonnell Douglas test applies to FEHA retaliation claims as well as discrimination claims. (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244.)

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Under the McDonnell Douglas test, (1) the complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 149.) The plaintiff's prima facie burden is “not onerous,” and “[t]he specific elements of a prima facie case may vary depending on the particular facts.” (Guz, supra, 24 Cal.4th at p. 355; see also Sandell v.

Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310 [“The prima facie burden is light; the evidence necessary to sustain the burden is minimal.”].) In general, to establish a prima facie claim for discrimination, “the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz, supra, 24 Cal.4th at p. 355.)

If the plaintiff establishes a prima facie case, “a presumption of discrimination arises.” (Guz, supra, 24 Cal.4th at p. 355.) The burden then shifts to the employer to rebut the presumption by articulating a legitimate, nondiscriminatory reason for the adverse action, and if it does so, the presumption “disappears” or “drops out of the picture.” (Serri v. Santa Clara Univ. (2014) 226 Cal.App.4th 830, 861.) The plaintiff then has the opportunity to attack the employer's proffered reason as a pretext for discrimination, or to offer any other evidence of discriminatory motive. (Ibid.) “‘[T]he plaintiff may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.”’” (Morgan v.

Regents of University of California (2000) 88 Cal.App.4th 52, 69.)

Although the McDonnell Douglas test was originally developed for use at trial, it is also used in summary judgment proceedings, although the burdens and order of proof are shifted. (See Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 965-966.) “An employer defendant may meet its initial burden on summary judgment, and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee's prima facie case, or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee.” (Id. at p. 966, italics in original.)

If the employer offers a legitimate nondiscriminatory reason for taking the adverse employment action, the employee “‘“must offer evidence that the employer's stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.”’” (Sandell, supra, 188 Cal.App.4th at p. 314; see also Swanson, supra, 232 Cal.App.4th at p. 966 [to avoid summary judgment employee “must offer

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substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.”].)

Defendants contend that Plaintiff cannot establish a prima facie discrimination case because he cannot show he was performing his job competently. Defendants also contend that the fact that Plaintiff did not receive the $1,000 award payment is not an adverse employment action. Additionally, Defendants argue that there is no evidence of discriminatory motive with respect to Plaintiff’s eligibility for the $1,000 payment. Finally, Defendants contend that they have submitted evidence to establish that they had legitimate, non-discriminatory reasons to terminate Plaintiff.

Plaintiff contends that the following facts are disputed: (1) whether Plaintiff was eligible for the $1,000 award; (2) whether the eligibility requirements were properly communicated to Plaintiff; (3) whether Stalter had discretion to give the award to any employee of her choice; and (4) whether Plaintiff was the only African-American in his department.[3] (See Opp. MPA, p. 16:17- 22.)

Upon consideration of the evidence submitted, the Court finds a triable issue of material fact exists as to whether Plaintiff was eligible to receive the $1,000 award. Defendants asserts that Plaintiff’s job position “was not one of the job classifications identified as eligible to receive the award.” (Defendants’ UMF No. 3.) Defendants’ support this UMF with Exhibits J and K. These documents are attached to the declaration of Defendants’ counsel, Harold R. Jones. Regarding Exhibit J, Mr. Jones declares that the documents were produced by Plaintiff in response to Dignity’s Requests for Production of Documents. (Jones Decl., ¶ 11.)

Exhibit J consists of a copy of the same letter Plaintiff says he received from Common Spirit’s CEO and which is attached to Plaintiff’s declaration as Exhibit A, page 1. Exhibit J also includes a page labeled “Attachment 2,” which consists of a list of job titles. There is no title or explanation for Attachment 2 within the attachment itself, and the attachment is not referred to in the letter from Mr. Dean. Meanwhile, regarding Exhibit K, Mr. Jones declares, “Attached hereto as Exhibit K are true and correct copies of Covid Caregiver Award letter and attachments I [sic] am informed and believe Dignity Health submitted to the EEOC on or about October 6, 2021 in response to the EEOC’s Request for Information dated September 20, 2021, in connection to the abovereference Charge filed by Plaintiff.” (Jones Decl., ¶ 13.)

The first page of Exhibit K consists the same letter found in Exhibit J. The second page is titled “Caregiver Award,” and includes a bullet point that states, “The approved award amount is $1,000, to be paid to employees in designated Caregiver roles (identified on next page).” (Jones Decl., Exh. K, p. 2.) The third page is titled “Approved Caregiver Roles” and consists of a list of job titles. Notably, the job titles

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listed in Exhibit K do not match those listed in Exhibit J. Each page of Exhibit K includes a footer that states, “DCC Response to Supplemental Request for Information EEOC 555-2021- 00321 (Ronald Watson).” (Jones Decl., Exh. K.)

These documents do not establish that Anesthesia Technicians were not eligible to receive the award. For one, the documents do not appear to be competent, admissible evidence to establish what they purport to establish. They are hearsay, and there is no declaration from a witness with personal knowledge of the eligibility requirements. Additionally, the lists of job titles in each document are different. Defendants have also not established that Stalter lacked discretion to determine who could receive the award.

This information is not included in the separate statement. Further, it appears to be contradicted by Exhibit K, which states, “Factors to be considered to determine whether individual employees in those approved titles should receive awards include.” (Jones Decl., Exh. K, p. 2.) This suggests that there is some discretion in choosing who receives the award. Remarkably, the moving papers provide no testimony from Stalter, either in the form of a declaration or a deposition. Nor is there a declaration from any other competent employee stating whether Stalter had discretion to determine who received the award.

Defendants have also not submitted evidence to negate an element of Plaintiff’s prima facie case. While Defendants assert that Plaintiff has no evidence of discriminatory animus, there is no evidence to establish that Plaintiff indeed does not currently have or could not reasonably obtain such evidence.

Since a triable issue of material fact exists as to Plaintiff’s race discrimination claim, Defendants’ motion for summary adjudication is DENIED as to Issues 2 and 3 regarding Plaintiff’s first cause of action.

Harassment – Hostile Work Environment (Second Cause of Action)

“To establish a prima facie case of a hostile work environment [harassment], [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [plaintiff’s] protected status; (4) the harassment unreasonably interfered with [plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.) “To prevail on a harassment claim under FEHA, a plaintiff must produce evidence they were subjected to ‘offensive comments or other abusive conduct’ that is (1) based on a ‘protected characteristic’ and (2) ‘sufficiently severe or pervasive as to alter the conditions of [his] employment.’” (Doe v.

Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 736.) A hostile work

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environment claim must be evaluated in light of the totality of the circumstances, which may include “‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” (Miller, supra, 36 Cal.4th at p. 462 (citations omitted).) A harassment claim based on hostile work environment is determined from the totality of the circumstances. (Sheffield v. Los Angeles County (2003) 109 Cal.App.4th 153, 162.) “Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance.” (Reno v. Baird (1998) 18 Cal.4th 640, 646 [superseded on other grounds as noted in Martinez v. Michaels (C.D. Cal. 2015) 2015 U.S. Dist. LEXIS 92180 at *25-26].)

Here, Defendants have not met their initial burden on this cause of action. Defendants have not submitted any evidence to show Plaintiff does not possess or cannot reasonably obtain evidence for his hostile work environment claim. Nor do Defendants submit evidence to establish an affirmative defense to this claim. Defendants rely on the same UMFs as in the discrimination cause of action, namely, that Plaintiff was not eligible to receive the $1,000 award and that Plaintiff improperly continued to clock in at the wrong time after his shift was changed. Defendants do not address Plaintiff’s other allegations of hostile work environment, including that Stalter asked another manager to give him a contradictory task as a pretense to discipline him.

Accordingly, Defendants’ motion for summary adjudication is DENIED as to Issues 4 and 5 concerning Plaintiff’s second cause of action.

Retaliation (Third Cause of Action)

The elements of a FEHA retaliation claim are “(1) the employee’s engagement in a protected activity, i.e., ‘oppos[ing] any practices forbidden under this part’; (2) retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation.” (Mamou v. Trendwest Restorts, Inc. (2008) 165 Cal.App.4th 686, 713.)

“The statutory language of section 12940(h) indicates that protected conduct can take many forms. Specifically, section 12940(h) makes it an unlawful employment practice ‘[f]or any employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Yanowitz, supra, 36 Cal.4th at p. 1042, emphasis in original.) Additionally, “[i]t is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not

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actually prohibited by the FEHA.” (Id. at p. 1043.)

Defendants advance essentially the same arguments presented with respect to Plaintiff’s discrimination claim, namely, that they had a legitimate basis for the adverse employment actions taken against Plaintiff. Defendants’ separate statement only addresses Plaintiff’s termination as an adverse employment action. Defendants do not address Plaintiff’s allegation that Stalter asked another manager to give him a contradictory task as a pretense to discipline him after he filed his initial EEOC complaint.

Moreover, Defendants contend, albeit without any apparent evidence, that “when Watson learned of the forty-five minute postponement of his daily shift, he complained to his union, but did not tell Dignity that he had no intention of abiding by the new schedule.” (Mot. MPA, p. 22:18-19.) Plaintiff asserts that Defendants imposed the shift change on him without clearing it with his union as required. (See Plaintiff’s AMF No. 23; Plaintiff’s Resp. to Defendants’ UMF No. 9.) While some of Plaintiff’s evidence related to the union requirements for the shift change is inadmissible, Defendants have not objected to the evidence that supports Plaintiff’s AMF No. 23 or his response to Defendants’ UMF No.

9. Thus, construing this evidence in Plaintiff’s favor, the Court finds a question of fact exists as to whether the shift change was imposed against Plaintiff as a result of his first EEOC complaint.

Accordingly, Defendants’ motion for summary adjudication is DENIED as to Issue 7 concerning Plaintiff’s third cause of action.[4]

Failure to Prevent Discrimination, Harassment, and Retaliation (Fourth Cause of Action)

Defendants assert that this cause of action fails because Plaintiff’s first three causes of action fail. (See Mot. MPA, pp. 22:25-23:12.) Since the Court has denied Defendants’ motion with respect to the first three causes of action, Defendants’ motion for summary adjudication is similarly DENIED as to Issue 8 concerning Plaintiff’s fourth cause of action.[5]

Wrongful Termination (Fifth Cause of Action)

Defendants assert that this cause of action “is derivative of Watson’s other claims.” (Mot. MPA, p. 23:14-15.) Since Defendants have not defeated Plaintiff’s other claims, Defendants’ motion for summary adjudication is DENEID as to Issue 9 concerning Plaintiff’s fifth cause of action.

Punitive Damages

Defendants contend that “Plaintiff has no evidence of any malice, fraud or oppression to support his claim of punitive damages.” (Mot. MPA, p. 24:25-26.) This is Defendants’ sole argument with respect to Plaintiff’s punitive damages claim. However, Defendants have not submitted any

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evidence to establish that Plaintiff does not possess or cannot reasonably obtain evidence to support a claim for punitive damages. Thus, Defendants’ motion is DENIED as to Issues 10 and 11 concerning Plaintiff’s claim for punitive damages.

Disposition

Defendants’ motion for summary judgment or, in the alternative, summary adjudication, is DENIED in its entirety.

Plaintiff is directed to prepare a formal order complying with Code of Civil Procedure section 437c(g) and California Rules of Court rule 3.1312.

[1] Plaintiff also contends that Defendants’ motion should be denied because Defendants failed to meet and confer

before filing their motion, which Plaintiff contends is required under California Rules of Court rule 3.1350. However, rule 3.1350 says nothing about meeting and conferring before filing a motion for summary judgment. The Court is unaware of any authority for such a requirement. Thus, this argument is rejected. [2] The Court notes that both the objections and the exhibits themselves are somewhat confusing. Exhibit B includes

a document titled EEOC Inquiry Information with an incident date of November 27, 2020 and includes Plaintiff’s allegations related to the $1,000 payment. (Watson Decl., Exh. B, p. 1-3.) It also includes a right-to-sue notice from the DFEH dated February 17, 2022. (Watson Decl., Exh. B, p. 4-8.) Following the DFEH letter is a complaint dated February 17, 2022 written on pleading paper and verified by an attorney. (Watson Decl., Exh. B, p. 9-13.) Exhibit C contains only a different document titled EEOC Inquiry Information with an incident date of June 1, 2021 and including Plaintiff’s allegations about being escorted from the property. (Watson Decl., Exh.

C.) Exhibit D consists of the same DFEH right-to-sue notice and complaint, both dated February 17, 2022, that are attached as part of Exhibit B. (Watson Decl., Exh. D.) Defendants object to Plaintiff’s statement in his declaration that he filed the DFEH complaint on February 17, 2022 (Objection No. 4) and Exhibit C (Objection No. 6), but not Plaintiff’s claim that he filed a complaint on June 22, 2021 or Exhibits B or D. [3] Plaintiff also mentions that he disputes whether he was subjected to discipline after he filed his EEOC complaint.

The Court discusses this issue in relation to Plaintiff’s retaliation claim. [4] As explained supra, Defendants’ motion on Issue 6 concerning the third cause of action is also DENIED on the

basis the Defendants’ have not shown that Plaintiff failed to exhaust his administrative remedies. [5] As explained supra, Defendants’ motion on Issue 8 is also DENIED on the grounds of noncompliance with Rule

3.1350(b) of the California Rules of Court.