Opinion
B198416
7-3-2008
MARIA FERNANDEZ, Plaintiff and Appellant, v. WEST HILLS HOSPITAL & MEDICAL CENTER, Defendant and Respondent.
Mark Weidmann and Lee Franck for Plaintiff and Appellant. Jones Day, Mark D. Kemple and Matthew M. Yu for Defendant and Respondent.
Not to be Published
Maria Fernandez (appellant) appeals from a judgment entered after the trial court granted the motion for summary judgment or, in the alternative, summary adjudication filed by West Hills Hospital doing business as West Hills Hospital & Medical Center (respondent) as to all of appellants causes of action against respondent. Appellant appeals the trial courts summary adjudication rulings as to her first, second, sixth, seventh, and thirteenth causes of action.
Both parties refer to the trial courts order as an order granting summary judgment in favor of respondent. While the order is captioned as an order "granting defendants motion for summary judgment," the body of the order confirms that the "first, second, third, sixth, seventh, eighth, eleventh, twelfth, and thirteenth cases of action" were "summarily adjudicated in favor of [respondent]." We treat the order as an order granting summary adjudication and refer to it as such throughout this opinion.
We affirm the trial courts ruling as to the first, second, sixth, and seventh causes of action. However, because appellant presented evidence of severe and pervasive harassment based on appellants age, and such evidence was sufficient to create a triable question of fact as to whether appellant was subjected to unlawful age harassment, we reverse the trial courts ruling as to the thirteenth cause of action.
CONTENTIONS
Appellant contends that the trial court erred in granting summary adjudication because: (1) there are triable issues of fact as to appellants first and second causes of action for medical leave discrimination; (2) there are triable issues of fact as to appellants sixth and seventh causes of action for disability discrimination; and (3) there are triable issues of fact as to appellants thirteenth cause of action for age harassment.
FACTUAL BACKGROUND
1. Appellants employment and initial complaints regarding her work
Respondent is a medical center providing a wide range of healthcare services to patients. Appellant was hired by respondent in 1983. She was hired as an aide in the Environmental Services Department (EVS). Beginning in mid-May 2004 through the last day of her employment, appellant was assigned to the second floor area in the west wing of the hospital. Her duties in that area included cleaning and maintaining patient rooms in the Critical Care Unit and its visitors waiting room, the Intensive Care Unit, the Respiratory Therapy Area, the utility rooms and hallways on the second floor, and sometimes the Catheterization Lab.
According to evidence presented by respondent, about a year before appellant was terminated, respondent began receiving unsolicited complaints from nurses and other staff criticizing the quality of appellants cleaning. One of the nurses who complained asked that appellant not be allowed to return to her area of the hospital because she thought appellant left the rooms in that area half clean.
In response to these complaints, respondent counseled appellant and put her on a work improvement plan in or about December 2003. The work plan required appellant to make "immediate and sustained improvement in her performance."
In April 2004, Triz Tajalli became the director of EVS. Her job duties included the supervision of EVS aides. Alex Gomez, EVS manager and supervisor, reported to Tajalli and assisted her in her supervisory duties over the EVS aides.
On or about May 20, 2004, Tajalli met with appellant to discuss appellants work improvement plan. Tajalli advised appellant that, because she was on the work improvement plan, Tajalli and Gomez would be reviewing appellants work on a regular basis to see if she was meeting expectations. The same day, Tajalli took appellant to an empty room to show appellant exactly how she wanted appellant to clean in order to meet the standards set forth in the work improvement plan. A few days later, Tajalli and Gomez found a room cleaned by appellant that was not up to the standards set for appellant. In areas that were supposed to have been cleaned by appellant, they found signs indicative of several days failure to clean.
2. Appellants medical issues
In her declaration submitted in opposition to respondents summary adjudication motion, appellant stated that she suffered from high blood pressure and anxiety. Appellant further declared that, during the last few months of her employment, these medical conditions got worse, requiring her to take medical leave. Appellant identified the dates of this medical leave as January 19, 2004; March 29, 2004; April 22, 2004; May 6, 2004; May 14 through May 16, 2004; and September 21 through October 4, 2004.
Appellant also declared that her supervisors knew of these disabilities however, upon objection from respondent, this statement was stricken from the record by the trial judge therefore we do not consider it. In addition, appellants statements that her supervisors knew of her medical leave were also stricken from the record.
Appellant stated that, in response to her medical leave, Tajalli told her that she was "calling in sick too often and because of that [I] was going to get fired." Appellant stated that Tajalli made these comments on at least three occasions. In addition to threatening her, Tajalli prepared a written report of excessive absences.
3. Statements from appellants supervisor, Alex Gomez
Appellant also stated in her declaration that she was subjected to repeated harassment by her supervisor, Alex Gomez, based on her age. Despite respondents objections, the trial court admitted appellants statements that Gomez had told her that she was too old and that he preferred younger people working in his department; that she was a "fucking old lady"; that she was "old" and should "leave [her] job for younger people"; and that she was a "fucking broad who is much too old [and] should leave [her] job to some other person." The court also admitted appellants statements that Gomez told her coworkers that she "[was] too damn old to work here [and they] should just get [her] out of here."
Appellant testified in her deposition that when her employment with respondent was terminated on October 4, 2004, she was 51 years old.
Appellant testified during her deposition that she was subjected to these comments at least twice per week beginning in March 2003 through the date that appellant was terminated.
4. Appellants termination
Evidence presented by respondent reveals the following facts: beginning on or about June 9, 2004, appellant took an eight-week leave of absence and did not return to work until August 2, 2004. On or about August 3, 2004, Tajalli again met with appellant and again showed her exactly how she wanted appellant to perform her cleaning duties. Despite Tajallis specific instructions, on August 10, 2004, Tajalli found appellants work to be subpar in many respects. Many of the problems were the same problems that Tajalli had seen when she reviewed appellants work in late May 2004.
On or about August 11, 2004, Tajalli met with appellant again and counseled her regarding her failure to meet cleaning standards. On that date, she gave appellant a "final written warning" advising her that she needed to make immediate and sustained improvement in her performance. On August 17, 2004, the same problems previously brought to appellants attention were not remedied, and several areas which appellant was required to clean were filthy and untouched. Tajalli also inspected on September 16 and September 21, 2004, and found that the areas assigned to appellant continued to be filthy and showed signs that they had not been cleaned for several days. Tajalli found that appellant had failed to clean certain areas that Tajalli had expressly told appellant she would be inspecting.
During this time, Tajalli also continued to receive unsolicited complaints about appellants work. Tajalli received such complaints on August 31, 2004, from the Director of Critical Care; on September 7, 2004, from a nurse regarding a room in the Critical Care Unit; and on September 15, 2004, from the Director of Respiratory Therapy.
On or before September 21, 2004, Tajalli decided to terminate appellants employment and prepared appellants termination notice. However, before Tajalli could notify appellant of the termination of her employment, appellant asked a coworker to bring in a note excusing her from work for two weeks. Upon appellants return from that leave on October 4, 2004, Tajalli met with appellant and terminated her employment effective that date.
PROCEDURAL BACKGROUND
1. Appellants complaints
Appellant filed her initial complaint on June 23, 2005, alleging 14 causes of action against respondent, Tajalli, and Gomez. Tajalli and Gomez filed demurrers to the complaint which were sustained without leave to amend. Appellant filed a first amended complaint on November 17, 2005, against the same three defendants, alleging the same counts.
Eventually, the parties stipulated that appellant would be permitted to file a second amended complaint (SAC) which was deemed filed as of December 9, 2005. The SAC, which was the operative complaint in the trial court, alleged the following 14 counts: (1) family and medical leave discrimination in violation of the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq. (FEHA)) against respondent; (2) family and medical leave discrimination in violation of public policy against respondent; (3) family and medical leave harassment against respondent; (4) family and medical leave harassment against Gomez; (5) family and medical leave harassment against Tajalli; (6) disability discrimination in violation of FEHA against respondent; (7) disability discrimination in violation of public policy against respondent; (8) disability harassment against respondent; (9) disability harassment against Gomez; (10) disability harassment against Tajalli; (11) age discrimination in violation of FEHA against respondent; (12) age discrimination in violation of public policy against respondent; (13) age harassment against respondent; and (14) age harassment against Gomez.
2. Discovery
The parties engaged in discovery subsequent to the filing of the SAC. On May 9, 2006, respondent, Tajalli, and Gomez moved to compel appellant to withdraw her objections to a number of special and form interrogatories, to provide full and complete responses, and for monetary sanctions. The interrogatories at issue requested that appellant state all facts and/or provide the evidence supporting her allegations of discrimination and harassment.
Respondent, Tajalli and Gomez had served special interrogatories on appellant which generally asked appellant to "state all facts that support the contention found in [a particular allegation quoted directly from appellants SAC]." Appellant objected to each and every special interrogatory on the same grounds: "[Appellant] objects on the ground the interrogatory seeks information protected by attorney work product doctrine. [Appellant] also objects that [respondents] understanding, context, and usage of [appellants] complaint is vague, uncertain, and ambiguous." Respondent argued that appellants objections were meritless because contention interrogatories are specifically authorized by Code of Civil Procedure section 2030.010, subdivision (b). Appellant also objected to each of respondents form interrogatories which sought information regarding appellants contentions, on the ground that they were "vague, uncertain and ambiguous." Respondent argued that such objections were meritless.
In opposition to respondents motion to compel, appellant argued that she had responded to the interrogatories at issue "fully and completely." The trial court denied respondents motion to compel, did not order appellant to respond further to the contention interrogatories at issue, and imposed $1,500 in sanctions against counsel for respondent, Tajalli, and Gomez for bringing the motions to compel.
3. The motion for summary adjudication and applicable evidentiary rulings
On August 18, 2006, respondent, Tajalli, and Gomez filed a motion for summary judgment or adjudication, with supporting papers, asking the trial court to summarily adjudicate all counts in their favor and enter judgment accordingly.
Appellant filed her opposition on October 18, 2006. A week later, appellant filed a request for dismissal of all claims against Tajalli and Gomez, which was entered on October 24, 2006, leaving only her causes of action against the respondent.
Respondent filed a reply to appellants opposition on October 27, 2006, along with supporting papers and objections to the evidence offered by appellant in support of her opposition to respondents motion for summary judgment or adjudication. Many of respondents objections to appellants evidence were grounded on the argument that such evidence contradicted prior verified discovery responses, offering new and previously undisclosed evidence supporting appellants various claims.
The trial court heard oral argument on November 20, 2006, and took the matter under submission. By minute order dated November 27, 2006, the court granted summary adjudication on all counts raised in respondents motion. The trial court also ruled on respondents objections to appellants evidence submitted in support of her opposition. The court declined to strike appellants declaration in its entirety, instead striking certain statements contained therein. The excluded statements included seven statements appellant made describing herself as an excellent employee, and three statements appellant made stating that she fully and completely carried out all of her job tasks at all times. In addition, the trial court sustained respondents objections to appellants statements that her supervisors knew of her disabilities; that her supervisors knew that she took medical leave; that she had informed her supervisor, Gomez, of her medical leave; and that she met all the requirements for medical leave.
None of the trial courts evidentiary decisions are before us on appeal. However, the courts evidentiary rulings are crucial to our determination of whether triable issues of fact exist as to the causes of action at issue. Therefore, we discuss the trial courts ruling in detail.
However, the trial court admitted certain of appellants statements regarding her job performance. Those statements included statements concerning past performance evaluations, her claims of outstanding scores on work performance and knowledge tests (although documentary evidence of the tests themselves was excluded), her statements that she was "constantly" told that she had no performance problems and that she was never informed that she had any "legitimate" job performance problems, and her statements that she never left rooms half clean and that she "did not leave two used bedpans and a used graduate in a bedside cabinet."
However, the trial court overruled respondents objections to appellants declarations as to the harassing statements to which she was allegedly subjected by her supervisor, Gomez, on account of her age. In addition, the court admitted appellants statements that Tajalli made negative comments about appellants disability and medical leave and that Tajalli told appellant that she was calling in sick too often, and because of that she was going to get fired.
The trial court also permitted appellants evidence that she was "subjected to repeated harassment by [her] supervisors based on [her] age, disability, and medical leave"; that Gomezs harassing statements occurred at least two times a week from March of 2003 through October 4, 2004; that Gomez made these negative comments at least 25 times; that Tajalli harassed her as well on at least three occasions; and that these comments were unwelcome and caused appellant anxiety and stress.
By way of explanation for its evidentiary rulings, the trial court stated: "[Respondent] points out that [appellant] has failed to adhere to the requirements of the Code of Civil Procedure and the California Rules of Court in presenting her evidence. [Appellants] failure to comply with those rules, while a ground for striking the non-compliant evidence (See Collins v. Hertz Corp. [(2006) 144 Cal.App.4th 64]), also makes it difficult for the Court to fully appreciate [appellants] argument. The Court has not chosen to strike the evidence, in part because the [respondent] has provided the Court with the tools (by way of a `roadmap to evidence cited or mis-cited by [appellant])." Thus, while acknowledging that the evidence could have been stricken, the trial court declined to take such action.
In support of its decision to grant summary adjudication on all counts, the trial court explained: "[Appellant] has failed to provide admissible evidence creating a genuine dispute regarding the [respondents] stated reason for terminating her employment. Furthermore, [appellant] has offered no substantial evidence that the [respondents] reason for terminating [appellants] employment was pretextual." After explaining that appellant had failed to establish a prima facie case of age discrimination or medical leave discrimination, the court stated that appellant "also fail[ed] to present substantial admissible evidence of disputed issues of fact on her claims for harassment." The court requested that respondents counsel prepare a full order consistent with the courts ruling.
4. Appellants motion for reconsideration
On December 6, 2006, appellant filed a request for reconsideration of the trial courts ruling and a request for stay of entry of judgment pending a decision of the reconsideration request. The trial court heard oral argument on appellants request for reconsideration on January 23, 2007, and denied the request, stating: "I dont think it is appropriate to reconsider, but I want it to be made clear that, if I did think it was appropriate to reconsider, I would reconsider and come to the same conclusion."
Over appellants objection, on March 1, 2007, the trial court signed the proposed order granting respondents motion for summary adjudication, and entered judgment against appellant. On April 16, 2007, appellant filed a notice of appeal.
Appellant explains that she objected to the proposed judgment in part because, according to appellant, the proposed judgment "mischaracterized" the trial courts evidentiary rulings. However, a comparison of the proposed judgment, which was ultimately signed by the trial court, and the courts minute order entered after the summary judgment hearing, reveals that the proposed judgment accurately set forth those evidentiary rulings.
DISCUSSION
I. Standard of review
The standard of review for an order granting or denying a motion for summary judgment or adjudication is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The trial courts stated reasons for granting summary relief are not binding on the reviewing court, which reviews the trial courts ruling, not its rationale. (Kids Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
A party moving for summary judgment "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. [Citation.]" (Ibid., fn. omitted.) "A defendant bears the burden of persuasion that `one or more elements of the `cause of action in question `cannot be established, or that `there is a complete defense thereto. [Citation]." (Ibid.)
Generally, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]" (Aguilar, supra, 25 Cal.4th at pp. 850-851.)
Bearing these standards in mind, we review each cause of action before us and the evidence presented by the parties.
II. Appellants first and second causes of action for family/medical leave discrimination
The framework for determining the existence of a cause of action for medical leave discrimination is as follows: "Under well-settled rules of order of proof, the employee must first demonstrate a prima facie showing of prohibited discrimination. If the employee does so, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. The employee then has the burden of proving the proffered justification was a pretext for discrimination. [Citations.]" (Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 613 (Nelson), citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802.)
A. Prima facie case
Respondent first claims that summary adjudication was appropriate because appellant failed to make out a prima facie case of discrimination. In order to make a prima facie showing of medical leave discrimination, appellant was required to present evidence of the following elements: (1) that respondent is an employer covered by the California Family Rights Act (CFRA); (2) that appellant is an employee eligible to take CFRA; (3) that appellant exercised her right to take leave for a qualifying purpose; and (4) that appellant suffered an adverse employment action, such as termination because of her exercise of her right to CFRA leave. (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261.)
CFRA (Gov. Code, § 12945.2) is contained within the FEHA and is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security. (Nelson, supra, 74 Cal.App.4th at p. 605.)
The parties do not dispute respondents status as an employer covered by the CFRA or appellants eligibility to take CFRA leave. Appellant has presented evidence that she exercised her right to take leave for a qualifying purpose. Further, appellant presented evidence that respondent may have terminated her employment because she exercised her right to take CFRA leave. This evidence came in the form of statements in appellants declaration, which were admitted by the trial judge. Appellant declared that Tajalli made negative statements about appellants disability and medical leave, and that Tajalli told her that she was calling in sick too often and because of that she was going to get fired.
CFRA allows workers to take family and medical leave to care for their children, parents, spouses, or to recover from their own serious health condition. (Nelson, supra, 74 Cal.App.4th at p. 607.) Appellant presented evidence that she took medical leave on January 19, 2004; March 29, 2004; April 22, 2004; May 6, 2004; May 14 through May 16, 2004; and September 21 through October 4, 2004.
Respondent argues that appellant made these statements as part of appellants "invented" story designed to oppose respondents summary judgment motion, and that such statements were inconsistent with prior testimony, therefore may not be relied upon to create a triable issue of fact. However, we reiterate that the trial court rejected respondents objections to this evidence. The trial courts evidentiary rulings are not before us. Respondent admits that "the trial court admitted some of these `new comments into evidence, [but] disregarded them in deciding whether to grant summary judgment." Having found the evidence admissible, the trial court was not at liberty to ignore the evidence at the summary judgment stage. (See Code Civ. Proc., § 437c, subd. (c) [the court "shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court" (italics added)]; Edwards v. Hall (1991) 234 Cal.App.3d 886, 908, citing Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 255 ["Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor"].)
B. Respondents legitimate, nondiscriminatory reason for termination
Next, we must evaluate whether respondent presented evidence of a legitimate, nondiscriminatory reason for its action. (Nelson, supra, 74 Cal.App.4th at p. 613.) Respondent presented evidence which showed that appellant was terminated due to her substandard performance. An employees failure to adhere to performance standards set by an employer constitutes a legitimate business reason for termination of employment. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1007.)
Respondents evidence came in the form of declarations and documentary evidence of complaints regarding appellants job performance beginning in 2003. Respondent also presented evidence that appellant was put on a work improvement plan around December 2003, which required immediate and sustained improvement in appellants work performance. After Tajalli became director of EVS in April 2004, there was evidence of meetings between Tajalli, Gomez, and appellant during May through September of 2004 regarding efforts to improve appellants work performance. There was also evidence that Tajalli continued to receive unsolicited complaints about appellants performance in August and September of 2004. Tajalli stated that she decided to terminate appellants employment on or about September 21, 2004, based on appellants continuing failure to clean in accordance with respondents standards, and prepared a termination notice on that date. However, before Tajalli could notify appellant of the termination of her employment, appellant had a coworker bring Tajalli a doctors note excusing her from work for two weeks. Upon her return from that leave, Tajalli terminated appellant due to her poor work performance.
C. Pretext
Following respondents presentation of the evidence of a legitimate, nondiscriminatory reason for appellants termination, the burden shifts back to appellant to create a triable issue of fact as to whether respondents stated reason for termination was a pretext for discrimination. (Nelson, supra, 74 Cal.App.4th at p. 613.) Appellants burden was to "produce `substantial responsive evidence that the employers showing was untrue or pretextual. [Citation]. For this purpose, speculation cannot be regarded as substantial responsive evidence. [Citation]." (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) We find that appellant has failed to produce the required substantial responsive evidence to create a triable dispute as to the reasons for respondents termination of appellants employment.
Pretext means a dishonest explanation for why an employee was terminated. (OReagan v. Arbitration Forums, Inc. (7th Cir. 2001) 246 F.3d 975, 983.) A plaintiff can show pretext by presenting substantial evidence: (1) that the employers proffered reason for termination is untrue; (2) that discriminatory animus more likely motivated the employer; or (3) through a combination of (1) and (2). (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at pp. 1004-1005.)
Appellant attempts to create a triable issue of fact as to pretext in two ways: first, by emphasizing that appellant was terminated the day she returned from medical leave; and second, by stating that respondents stated reasons for the termination were false. However, none of the evidence presented by appellant contradicts respondents evidence of a legitimate, nondiscriminatory purpose for termination of appellants employment.
First, we find that under the circumstances of this case, the date of appellants termination is not evidence of pretext. The cases cited by appellant in support of her position that the timing of her firing is sufficient to infer pretext are distinguishable. In Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, the Court of Appeal found that the employee alleging harassment presented sufficient circumstantial evidence from which evidence of the employers improper motive could be inferred because (1) the same highly placed corporate officer who made the offending comments was also responsible for the plaintiffs termination; and (2) the plaintiff was terminated only a few months after he last confronted the offending supervisor. (Id. at p. 478.) While the Court of Appeal found that this evidence was sufficient to withstand summary judgment on the question of the employers retaliatory motives, the evidence here does not permit such an inference. On the contrary, respondents undisputed evidence of the events leading up to appellants termination support the timing of the action. Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224, also cited by appellant, simply notes that "[p]retext may be inferred from the timing of the discharge decision, the identity of the decisionmaker, or by the discharged employees job performance before termination. [Citation.]" Again, under the circumstances of this case, the timing of appellants discharge is fully acknowledged and accounted for by respondents evidence concerning the legitimate, nondiscriminatory reason for appellants discharge.
Next, we note that appellants position that "[f]irst and foremost [appellant] denies that she ever failed to clean or failed to do her job at all," is simply not supported by admissible evidence. The trial court excluded appellants own statements that she was an excellent employee. While certain of appellants statements regarding her previous performance evaluations were admitted (see discussion above, section 3, fn. 6), none of these statements specifically contradicts respondents evidence that, beginning in 2003, appellants job performance declined, other staff began complaining about her work, and she was put on a work improvement plan which was unsuccessful in improving appellants work habits. Nor do appellants nonspecific statements that she was "constantly" told by "all" her supervisors that she had no work performance problems and that she was "never" informed of any "legitimate" job performance problems, amount to substantial responsive evidence to contradict respondents evidence of a legitimate, nondiscriminatory reason for its termination of appellants employment. (See Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196 ["An issue of fact can only be created by a conflict of evidence. It is not . . . raised by `cryptic, broadly phrased, and conclusory assertions"].)
Appellant further argues that certain days on which respondent claimed that appellant had performance problems were days on which appellant did no cleaning. However, respondent points out that the dates in question were not dates on which respondent claimed that appellant had actually cleaned. Rather, they were dates on which Tajalli conducted early morning inspections of appellants work on the immediately preceding days, and concluded that appellant had done a very poor job. Appellant further claims that she was not assigned to clean the rooms discussed in her counseling sessions on May 20, 2004, and August 3, 2004. However, respondent agrees that appellant was not blamed for improperly cleaning those rooms but was shown those rooms as examples during those two counseling sessions. Next, appellant argues that it was not her responsibility to take out the trash on September 13 through 15, 2004. In support of this claim, appellant cites to the deposition testimony of another employee, Manuel Gonzalez. The cited testimony simply does not support appellants assertion. Thus, respondents evidence that appellant failed to carry out this duty on the dates in question is uncontradicted.
The dates in question were August 10, 2004, September 16, 2004, and September 21, 2004.
Appellants efforts to create evidence of pretext by pointing to the testimony of other employees also fail. Appellant states that her "co-workers confirm that she had absolutely no cleaning problems." This statement is a distortion of the evidence. While Gonzalez testified that he never found anything wrong with the rooms that appellant cleaned, he also testified that "I wasnt checking her work . . . because it was not my responsibility." He further testified that he did not know what areas of the hospital appellant cleaned. Appellant also cites to the testimony of coworker Hermelinda Galvan. However, while Galvan testified that she was not aware of any problems with appellants cleaning, she also testified that she never observed any of the cleaning that appellant performed. Thus, appellants coworkers statements do not support an inference of pretext.
Citing McDonnell Douglas Corp. v. Green, supra, 411 U.S. at page 804, Kreiger v. Gold Bond Bldg. Products (2d Cir. 1988) 863 F.2d 1091, Abasiekong v. City of Shelby (4th Cir. 1984) 744 F.2d 1055, and Polanco v. City of Austin (5th Cir. 1996) 78 F.3d 968, appellant attempts to argue that the evidence shows that respondent treated similarly situated employees more favorably than it treated appellant. Specifically, appellant argues that 10 other employees "all failed to clean and were not terminated." For example, appellant states that Gustavo DeLeon admitted going up to three days without dusting, and he has never been disciplined. In addition, Maria Mejia stated that there were times when she came into work and the rooms on the fifth floor would be dirty. The person in charge of cleaning those rooms was never terminated. Finally, Tajalli acknowledged that a number of other employees had failed to clean properly in the past but were not terminated. None of this evidence shows that any of the purported problems with these other employees were as severe as appellants failures. There was no evidence that these other employees received unsolicited complaints, were put on work improvement plans, or chronically failed to perform to the standards set for them. Thus, appellants reliance on unequal treatment to create pretext is unavailing.
The cases cited by appellant confirm that in order to show unequal treatment, a party must show that other employees who engaged in comparable conduct were treated more favorably. (See McDonnell Douglas Corp. v. Green, supra, 411 U.S. at p. 804 [noting that the respondent, who alleged that his former employer wrongfully failed to re-hire him on account of his prior unlawful protests against the company as well as his race, might present pertinent evidence that "white employees involved in acts against [the employer] of comparable seriousness . . . were nevertheless retained or rehired"]; Krieger v. Gold Bond Bldg. Products, supra, 863 F.2d at p. 1094 [although female employee was often late in filing reports, she was "no worse and no more tardy" than many of the men, yet "the men were neither fired nor even placed on probation"]; Abasiekong v. City of Shelby, supra, 744 F.2d at p. 1057 [evidence that other city employees had improperly used public property for private use and enjoyment in the same way that appellant had, but that "[n]one of the white employees were disciplined or otherwise visited with sanctions because of those activities"]; Polanco v. City of Austin, supra, 78 F.3d at p. 971 [Mexican-American police officer alleged more severe disciplinary treatment than his colleague "although the conduct which provoked disciplinary action was virtually the same for both men"].) Thus, in all cases cited by appellant, at issue was evidence of identical acts leading to disparate treatment. In contrast, appellant has failed to cite evidence that the failures of her colleagues came close to the recurrent, serious problems with appellants work shown by respondents evidence.
In sum, we find that respondent has provided a complete defense to appellants causes of action for medical leave discrimination, in that respondent presented undisputed evidence of a legitimate, nondiscriminatory reason for terminating appellants employment. Appellant has failed to provide any substantial responsive evidence that respondents showing was untrue or pretextual. Thus, the trial court properly granted summary adjudication as to appellants first and second causes of action for medical leave discrimination in violation of FEHA and medical leave discrimination in violation of public policy.
III. Appellants sixth and seventh causes of action for disability discrimination
We analyze appellants causes of action for disability discrimination in the same manner as her causes of action for medical leave discrimination. Thus, we consider first whether appellant has set forth a prima facie case of disability discrimination; whether respondent articulated a legitimate, nondiscriminatory reason for its action; and whether appellant produced substantial responsive evidence that respondents reason was untrue or pretextual and that it acted with discriminatory animus. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807.)
Our analysis leads us to conclude that, for the same reasons that the trial court properly granted summary adjudication as to the causes of action based on medical leave discrimination, the trial court properly granted summary adjudication as to the causes of action based on disability discrimination.
In order to show a prima facie case of disability discrimination, appellant was required to show that (1) she suffers from a disability, (2) she is qualified for the job, and (3) she was subjected to adverse employment action because of the disability. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)
Assuming that appellant made out a prima facie case, for the reasons set forth in section II.B. above, we find that respondent has made a complete defense to this claim because it has provided undisputed evidence of a legitimate, nondiscriminatory reason for its action in terminating appellants employment. "It is well established that when there is no disputed issue of material fact regarding the employers nondiscriminatory reason for the adverse employment decision, the employer is entitled to summary judgment. [Citation.]" (Brundage v. Hahn, supra, 57 Cal.App.4th at p. 236, fn. 1.)
Appellant sets forth no different evidence regarding pretext in support of her claims of disability discrimination. Therefore for the reasons set forth in section II.C. above, we find that appellant has failed to provide any substantial responsive evidence that respondents showing was untrue or pretextual. (See Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1735.) Thus, the trial court properly granted summary adjudication as to appellants sixth and seventh causes of action for disability discrimination in violation of FEHA and disability discrimination in violation of public policy.
IV. Appellants thirteenth cause of action for age harassment
Under FEHA, it is unlawful for an employer to harass an employee based on the employees age. (Gov. Code, § 12940, subd. (j)(1).) An employer is strictly liable for workplace harassment by a supervisor. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1042.)
A. Evidence supporting appellants claim
In order to establish a claim for age harassment, appellant was required to produce evidence that: (1) she was over the age of 40; (2) she was subjected to intentional and unwelcome conduct; (3) the conduct complained of was based on her age; and (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. (Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 799 [plaintiff must be over the age of 40]; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 [elements of harassment claim under FEHA].) In support of its summary adjudication motion, respondent argued that appellant had not met the fourth element of this cause of action.
The parties do not contest appellants age, which was 51 at the time that her employment was terminated. In addition, appellant provided evidence that her supervisor, Gomez, subjected her to repeated negative comments based on her age. Despite respondents objections, the trial court admitted appellants statements that Gomez said she was too old and that he preferred younger people working in his department; that she was a "fucking old lady"; that she was "old" and should "leave [her] job for younger people"; that she was a "fucking broad who is much too old [and] should leave [her] job to some other person"; and told her coworkers that she "[was] too damn old to work here [and they] should just get [her] out of here." Appellant testified during her deposition that she was subjected to these comments at least twice per week, beginning in March 2003 through the date that appellant was terminated. The trial court overruled all of respondents objections to appellants deposition.
Respondent does not dispute Gomezs position as supervisor to appellant.
Based on this evidence, we find that appellant has stated a claim for age harassment that was sufficiently severe and pervasive so as to alter the conditions of her employment and create an abusive environment. Indeed, appellant stated that the comments were unwelcome and caused her anxiety and distress, and that she found it hard to deal with her supervisors because of these comments. The trial court overruled respondents objections to these statements.
B. It is not appropriate to discredit the evidence supporting appellants claim
Despite the evidence presented by appellant, respondent argues that "Mr. Gomezs alleged conduct does not meet the standard for a claim of age harassment." In support of this assertion, respondent points out that the evidence appellant produced in opposition to respondents summary adjudication motion on this claim was not disclosed in her prior verified discovery responses. Thus, respondent claims, "[appellant] cannot rely on that later inconsistent testimony to create a triable issue of fact."
We reiterate that, despite respondents objections on the grounds of inconsistency with prior discovery responses, the judge admitted appellants statements regarding the alleged harassment she suffered on account of her age. Respondent has not placed any of those evidentiary decisions before us for review in this appeal.
Although not seeking reconsideration of the trial courts evidentiary rulings, respondent essentially asks that we ignore the evidence submitted by appellant in opposition to summary adjudication. In doing so, respondent cites numerous cases in support of the proposition that evidence submitted in opposition to summary judgment may be discredited when such evidence directly conflicts with prior admissions. As set forth below, none of the cases convince us that, under the circumstances before us, we are at liberty to ignore appellants evidence at the summary judgment stage.
One case cited by respondent, Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376 (Leasman), went so far as to completely discount evidence provided in opposition to summary judgment. In Leasman, the plaintiff brought an action for negligence against the designer of an aircraft for damages sustained when part of the airplane broke, requiring the airplane to make an emergency landing. (Id. at p. 379.) The defendant brought a motion for summary judgment, relying on plaintiffs deposition testimony. In her deposition, the plaintiff had testified that she did not sustain any physical injury as a result of the emergency landing. (Ibid.) In addition, plaintiffs doctor testified that plaintiff did not complain to him of any injuries resulting from the incident. (Ibid.) In response to an interrogatory asking the injuries or complaints she suffered as a result of the emergency landing, plaintiff responded, "`Nervous condition that has interfered with my work, friends and marriage." (Ibid.) She made no mention of physical injury. However, in her declaration opposing the defendants summary judgment motion, the plaintiff claimed that, as a direct consequence of the emergency landing incident, she had suffered severe headaches, her hands ached, and her back stiffened, preventing sleep. In addition, she claimed to have lost 28 pounds as a result of her extremely nervous condition. (Id. at p. 380.)
In considering this new evidence, presented for the first time in opposition to summary judgment, the Court of Appeal stated: "Under the rule that the affidavits of the party opposing a motion for summary judgment are liberally construed [citations] it appears that plaintiff has presented sufficient evidence to present a triable issue of fact with respect to whether she sustained a physical injury in the subject incident. However, in view of plaintiffs admissions in her deposition and answers to interrogatories that she had suffered no physical injury as a result of the incident, the rule of liberal construction loses its efficacy and the granting or denial of the motion for summary judgment depends upon the issues of credibility." (Leasman, supra, 48 Cal.App.3d at p. 382.) Thus, the court declared "that as a matter of law the evidentiary facts stated in the counterdeclaration are irrelevant and evasive. Accordingly, defendants have met the burden of showing that plaintiffs action has no merit and that this is a proper case for the granting of a summary judgment." (Id. at pp. 383-384.)
Preliminarily, we note that the facts here differ from those present in Leasman. Respondent is not pointing to any specific, affirmative declarations by appellant that appellant was not harassed on account of her age. Instead, respondent complains that appellant omitted from her discovery responses the subsequent allegations regarding Gomezs specific comments about her age. These omissions do not rise to the level of the affirmative admissions of no injury present in Leasman. In addition, we note that the holding in Leasman has been disapproved. For example, in Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482, the Court of Appeal described Leasman as using "broad language that should be accepted with caution," and proceeded to explain that a "summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence. We are persuaded that the trial court properly relied on the admissions in the case at bar only because we find nothing in the record that is materially inconsistent with the admissions." (Ibid.) Later, in Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, the Court of Appeal noted that the Price court viewed the Leasman decision with skepticism and chose to view the record before it with equal caution, ultimately determining that the omissions in the plaintiffs discovery responses did not lead to an inference that the plaintiff could produce no other evidence to link the defendant to the plaintiffs illness. (Scheiding, supra, at p. 81.) Because the case before us is factually distinguishable from Leasman, we decline to follow it.
Thompson v. Williams (1989) 211 Cal.App.3d 566, also cited by respondent, is distinguishable on the same grounds. In Thompson, the plaintiff made affirmative admissions against interest in his deposition testimony. In a declaration accompanying his opposition to summary judgment, he "sought to counter those admissions and to raise triable issues of fact." The Court of Appeal held that an after-the-fact attempt to reverse a prior admission could not create a triable issue of fact. (Id. at pp. 573-574.) Again, here we have omissions, not affirmative admissions, which have been elaborated upon in opposition to summary adjudication.
The remaining cases cited by respondent do not provide authority for us to ignore admitted evidence at the summary judgment or adjudication stage on the ground that it was omitted in prior discovery responses. In Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, the plaintiff filed a products liability action which named Foster Wheeler as a defendant. Foster Wheeler brought a summary judgment motion based on plaintiffs deposition testimony indicating that he had no knowledge that he was exposed to one of Foster Wheelers asbestos containing products (id. at p. 103), and his discovery responses indicating that he had no specific evidence of exposure to asbestos from Foster Wheelers products. (Id. at p. 104.) The plaintiff did not later try to amend those responses in opposition to Foster Wheelers summary judgment motion, but instead argued that the list of persons having knowledge of facts relevant to the case, as well as plaintiffs listing of depositions in other cases and documents relating to alleged asbestos exposure, presented a triable issue as to plaintiffs exposure to Foster Wheelers products. The Court of Appeal concluded that "[plaintiffs] list of names, depositions, and documents do not raise disputed issues of material fact by themselves." (Id. at p. 106.) While the court emphasized that Foster Wheeler properly relied upon plaintiffs factually devoid discovery responses in support of its summary judgment motion, the case simply does not present authority for this court to overlook the admitted evidence at issue here.
The other cases cited by respondent do not present a situation analogous to the one before us. (See Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 171-172 [confirming that defendants are entitled to rely on factually devoid discovery responses to shift the burden of proof when seeking summary judgment]; DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21 [where "`there is a clear and unequivocal admission by the plaintiff . . . in his deposition . . . we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact"].)
In DAmico, the Supreme Court discussed two cases in which verified admissions were properly utilized by the moving party in support of summary judgment. Neither case presents a situation comparable to the one before us. The first, King v. Andersen (1966) 242 Cal.App.2d 606, involved a plaintiff who had made a "clear and unequivocal admission" on two occasions during discovery which he tried to contradict in opposition to summary judgment. (Id. at p. 610.) Again, this is not the present situation, where appellant made omissions, rather than clear admissions, during discovery. The second, Newport v. City of Los Angeles (1960) 184 Cal.App.2d 229, merely confirmed that an affidavit in support of summary judgment is sufficient where it incorporates verified admissions of the opposing party, regardless of whether the moving party had personal knowledge of those facts. (Id. at p. 236.)
Simply put, respondent has not provided authority for us to ignore appellants evidence in support of the age harassment claim — or weigh it — at this stage of the litigation. As we have pointed out previously in this opinion, the Legislature directs that a court "shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court." (Code Civ. Proc., § 437c, subd. (c), italics added; Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334 [on summary judgment, court considers "all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained"].)
At oral argument, respondent discussed three cases which respondent had not previously brought to our attention. These cases are all distinguishable on the ground that they involved affirmative statements or admissions — rather than omissions — which were later contradicted in documents filed in opposition to summary judgment. (See Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 861 [statement made in plaintiffs declaration in opposition to summary judgment "flies in the face of her unequivocal testimony during her deposition," during which she made a contrary admission]; Barton v. Elexsys International, Inc. (1998) 62 Cal.App.4th 1182, 1191-1192 [descriptions of conversations contained in declaration submitted in opposition to summary judgment motion contradicted earlier descriptions of those conversations given in deposition]; Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613 [drivers statement in deposition that he could reach a parking brake controlled over his declaration in opposition to the motion for summary judgment, which contradicted this statement].) As previously noted, respondent has not pointed to a similar affirmative statement, or admission, which was contradicted in appellants declaration.
In sum, respondents argument that we should discredit the evidence submitted by appellant in opposition to summary adjudication fails. We therefore find that appellant has created a triable issue of fact as to whether she was the victim of age harassment, and accordingly we reverse the trial courts grant of summary adjudication on appellants thirteenth cause of action.
DISPOSITION
We affirm the trial courts ruling granting respondents summary adjudication motion as to the first, second, sixth, and seventh causes of action. However, we reverse the judgment and the trial courts ruling granting respondents summary adjudication motion as to the thirteenth cause of action. Each party shall bear its own costs on appeal.
We concur:
BOREN, P. J.
ASHMANN-GERST, J.