HYDE, et al. vs KAISER FOUNDATION HEALTH PLAN, INC., et al.

Defendants’ MSA of Issue No. 1 is DENIED.

The Court finds that Defendants fail to meet their initial burden of production.

The underlying class action entitled Gamble v. Kaiser Foundation Health Plan, Alameda Sup.Ct. 23CV039174: HYDE, et al. vs KAISER FOUNDATION HEALTH PLAN, INC., et al. 07/21/2026 Hearing on Motion for Summary Judgment CRS# A-39174-001 in Department 512 Case No. RG16-826717 was later removed to federal district court as N.D. Cal. Case No. 4:17- CV-06621-YGR (the “Gamble Class Action”). The parties agree that Plaintiffs herein filed complaints about alleged discrimination by Defendants with the DFEH and/or EEOC and received their right to sue letters in respectively 2018 and 2019 while the Gamble Class Action was pending.

The Gamble Class Action Second Amended Complaint filed on 10/17/2017 alleges that Plaintiff Lunell Gamble is an African American woman over the age of 40. (Defendant’s Index of Exhibits (“DOE”) Exh. 2 at ¶ 4.) The first Paragraph of each of Plaintiffs’ four Complaints allege that Plaintiffs are African American women over the age of 40. (DIOE Exh. 9, 11, 14 and 15.)

The Gamble Class Action alleged in relevant part:

“Plaintiff seeks to represent a class of African Americans, and a subclass of older African Americans, who - during the maximum liability period determined for this action were employed at Kaiser in the northern California region, and were either (1) terminated in their employment or (2) complained internally or to a governmental entity regarding race or age discrimination. Plaintiff's class claims are brought pursuant to the California Fair Employment and Housing Act (FEHA), California Government Code §12940 et seq:, and federal civil rights statute, 42 U.S.C. §1981.”

Plaintiffs herein allege they were discriminated against in violation of FEHA.

Defendants’ Undisputed Material Facts (“DUMF”) Nos. 4-10 essentially contend that American Pipe tolling does not apply because Defendants cannot reasonably determine who their African American employees are, what it means to be “older” for purposes of employment discrimination claims, or to which governmental agencies putative class members might submit complaints sounding in employment discrimination based on race, ethnicity or age similar to those alleged in the Gamble Class Action and the present action.

The Court finds these contentions lacking in merit. One of the reasons discrimination against African Americans in the United States is so pernicious, is that most American adults can at a glance make a determination whether someone does or does not appear to be African American. Defendants present no evidence to support a finding that they are reasonably unable to determine whether Plaintiffs are or appear to be African American or who their African American employees are more generally. Further, Defendants certainly have the resources to retain purportedly competent legal counsel who could advise them to which governmental agencies Northern California employees might reasonably submit claims alleging employment discrimination based on race, ethnicity and/or age pursuant to FEHA and 42 U.S.C. § 1981, as alleged in the operative Gamble Class Action Complaint.

Similarly, the minimum age to allege an age discrimination claim under both the federal ADEA and California’s FEHA is age 40, as alleged in the Gamble Class Action operative Complaint and all of Plaintiffs’ Complaints in the present action.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

23CV039174: HYDE, et al. vs KAISER FOUNDATION HEALTH PLAN, INC., et al. 07/21/2026 Hearing on Motion for Summary Judgment CRS# A-39174-001 in Department 512

2. MSA of Issue 2 (End Date of American Pipe Tolling).

Defendants contend that, if American Pipe Tolling applies, tolling ended on 6/25/2022, the date on which the Gamble plaintiff filed a Notice of Waiver of Class Certification and Statement of Intent to Proceed as an Individual Action in the Gamble Class Action. Plaintiffs in Opposition contend that tolling ended on 11/15/2022, the date on which the federal district court entered an Order dismissing the Gamble Class Action. The date of tolling is relevant because the parties agree that Plaintiffs herein had one year from the date tolling ended to file the present action. Plaintiffs filed their initial Complaint on 7/21/2023.

Ultimately, the Court finds no merit to either party’s contention. As stated above, on 11/15/2022, the district court entered a Stipulation and Request for Order to Dismiss Entire Action; Order. (Friedman Dec. Exh. D.) This Stipulated [Proposed] Order was drafted by attorney Jeremy Friedman, legal counsel for the Gamble plaintiff and Plaintiffs herein. Amande Bollinger, counsel for Defendants in both the Gamble Class Action and the present action executed this Stipulation under the notation, “The undersigned attests that the signatory above concurs in the content of this document and has authorized its filing.”

The 11/15/2022 Order states in relevant part:

“Whereas, the Parties agree that any tolling pursuant to American Pipe of the statutory limitations period(s) on the putative class claims asserted in Plaintiffs’ Fourth Amended Complaint ended by no later than July 21, 2022 when the Court issued its revised Scheduling Order. (See Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1019 (9th Cir. 2000); In re Hanford Nuclear Rsrv. Litig. (534 F.3d 986, 1008 (9th Cir. 2008);”

This Court finds that this paragraph adopted as part of the district court’s 11/15/20222 Order constitutes a finding that American Pipe tolling ended on 7/21/2022. This Court sees no good reason to relitigate this portion of the district court’s 11/15/2022 Order. Moreover, the Court finds that Defendants are estopped from arguing in this action that tolling ended on 6/25/2022. If there was a dispute in November 2022 regarding the date that American Pipe tolling would end regarding claims stayed by the Gamble Class Action, Defendants needed to raise that issue with the district court and obtain an order providing that the tolling issue was unresolved and would need to be litigated in any future action in which American Pipe tolling might be alleged.

Wherefore, the Court DENIES Defendants’ MSA of Issue 2.

3. MSA of Issue No. 3 (Whether Johnson’s Pleadings Admit She Was Not Subjected to Actionable Discrimination between end of April 2017 and 7/17/2022).

Reading Plaintiffs’ Four Complaints as a whole, the Court finds that Johnson has admitted that she was not subjected to actionable discrimination after the end of April until some time after

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

23CV039174: HYDE, et al. vs KAISER FOUNDATION HEALTH PLAN, INC., et al. 07/21/2026 Hearing on Motion for Summary Judgment CRS# A-39174-001 in Department 512 7/17/2022 when she started a new position in the Kaiser Pediatric Subspecialty department.

Plaintiffs’ initial Complaint alleged that Johnson was subjected to “a continuous course of discrimination and retaliation” “starting in approximately June of 2018,” which included approximately 30 disciplinary meetings through April 2019 (DIOE Exh. 9 at ¶¶ 14, 17.) However, the initial Complaint also alleges a course of related discriminatory conduct “has continued from at least April 2016 until [the 7/21/2023 date of the Complaint].” (Id. at ¶ 20.)

Plaintiffs’ First Amended Complaint (“FAC”) filed on 12/7/2023 no longer alleges any discriminatory conduct in 2018 or 2019. Instead, it alleges in relevant part:

“Subsequent to April 2017, [Johnson] has worked for Kaiser in several positions. While she does not currently claim continuing discriminatory treatment at Kaiser, she has never been compensated from [sic] the economic losses and emotional distress caused by the discriminatory treatment she previously suffered.” (DIOE Exh. 11 at ¶ 23.)

Plaintiffs’ Second Amended Complaint (“SAC”) and Third Amended Complaint (“TAC”) filed respectively in June and September of 2025 both allege in relevant part:

“Subsequent to April 2017, [Johnson] has worked at Kaiser in several positions. While plaintiff, for a time, was able to find one or more positions where she was not subject to discrimination and retaliation to the same degree, by 2024, she continued to be exposed to the course of related discriminatory conduct as described herein. On or about July 17, 2022, plaintiff Johnson began working as a receptionist for the Pediatric Subspecialty. ”

“Approximately six months to one year after beginning to work in the Pediatric Subspecialty department, [Johnson] began to experience the same or similar discriminatory and retaliatory acts as she had experienced previously, and similar to the experiences of many other African American employees at Kaiser.” (DIOE Exh. 14 at ¶¶ 25-26 and Exh. 15 at ¶¶24-25.)

Neither the SAC nor the TAC alleges any specific discriminatory or retaliatory acts against Johnson at any time after the end of April 2017 until 7/17/2022. As stated above, Plaintiffs alleged as to Johnson specific discriminatory actions occurring between June 2018 and April 2019 in their initial Complaint, but these allegations were jettisoned from the FAC, never to be heard of again, despite Plaintiffs amending their pleading three times over more than two years.

The Court therefore finds that the allegations of the FAC, SAC and TAC quoted above constitute an unambiguous admission that Johnson suffered no actionable discrimination or retaliation after the end of April 2017 until 7/17/2022.

Wherefore, the Court GRANTS Defendants’ MSA of Issue No. 3.

4. MSA of Issue No. 4 (Whether Johnson’s Pleadings Admit She Was Not Subjected to

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

23CV039174: HYDE, et al. vs KAISER FOUNDATION HEALTH PLAN, INC., et al. 07/21/2026 Hearing on Motion for Summary Judgment CRS# A-39174-001 in Department 512 Actionable Discrimination between end of April 2017 and 12/7/2023).

Defendants’ MSA of Issue No. 4 is DENIED.

On the present record the Court is inclined to find that Johnson may plead discrimination and/or retaliation after 1/22/2023 when she returned from her leave of absence. Although Johnson may not have initially considered actions that occurred between 1/22/2023 and 12/7/2023 to have merited discrimination claims, it is at least possible that in light of later events, earlier events were part of an escalatory pattern of discriminatory or retaliatory conduct. Thus, Johnson should be allowed to plead and seek discovery regarding alleged events going back to 1/22/2023.

CONTESTING TENTATIVE RULINGS

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

23CV039174: HYDE, et al. vs KAISER FOUNDATION HEALTH PLAN, INC., et al. 07/21/2026 Hearing on Motion for Summary Judgment CRS# A-39174-001 in Department 512