Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC379545, Edward A. Ferns, Judge.
Charles T. Mathews & Associates, Charles T. Mathews, Lirit A. King and Deane Leroy Shanander for Plaintiff and Appellant.
Seyfarth Shaw, Ann Kotlarski and Catherine A. Evans for Defendants and Respondents.
BIGELOW, P. J.
This appeal arises from a summary judgment in favor of the defendant employer in an action alleging violations of the Fair Employment and Housing Act (FEHA; see Gov. Code, § 12940 et seq.) and related claims. We affirm.
FACTS
The General Employment History
In 1988, Kaiser Foundation Hospitals (Kaiser) hired Angeline Chu to work as a registered nurse at Kaiser’s West Los Angeles Hospital (Kaiser WLA). In 1992, Chu began working part-time in Kaiser WLA’s Labor and Delivery Department. Beginning sometime before November 2004, Chu worked weekdays as a part-time, day shift nurse, and worked occasional night shifts on the weekends, although she never formally applied for a regular night position because she could not harmonize her family responsibilities with the normal 12-hour night shifts.
Our references to Kaiser include all of its related defendant entities.
In April 2005, Denise Gatewood, the Assistant Department Administrator of Perinatal Services at Kaiser WLA, became Chu’s primary supervisor. Gatewood remained Chu’s primary supervisor until January 2006, at which time Chu took a leave of absence from Kaiser. At all relevant times to her current action, Chu was a member of the United Nurses Associations of California/Union of Health Care Professions (UNAC), and her employment was governed by a collective bargaining agreement (CBA) between Kaiser and UNAC. Chu never returned to work at Kaiser WLA after January 2006.
Events During 2005 and 2006
In April 2005, the same month that Denise Gatewood became Chu’s supervisor, Gatewood received various complaints about employee scheduling, including complaints that Chu was getting preferential treatment by either getting weekends off or not working her assigned day shifts. At about the same time, Kaiser hired an additional nurse for the night shift, and management began to express concerns about overtime costs in the Labor and Delivery Department. As a result of these developments, Gatewood decided to have Chu work her “usual day shift schedule” beginning in April 2005. For her part, Chu recalled: “[T]he minute... Gatewood become supervisor, the first thing she come to me one day in the nursing station. ‘I don’t want you to be in my department.’ ”
On April 24, 2005, Trenell Smith, an RN in charge of the patient assignments, asked Chu to assist with a C-section in the morning. During that afternoon, Smith asked Chu to assist with a second C-section. When Chu objected that she had not had breakfast or lunch, and that the second C-section assignment was unfair and should be given to one of the other available nurses, Smith purportedly yelled at her, “You might as well go home.” Following the altercation, Chu submitted a written complaint to Gatewood. In it, Chu claimed that she had been “intimidated and harassed by Trenell, ” and that she “resented to be abused and dumped on.” Gatewood, as part of her regular duties dealing with conflicts between employees, investigated Chu’s complaint and concluded that Chu’s patient assignments on April 24th had been fair. On April 28th, Gatewood and Tessie Desta (the Department Administrator) met with Chu and her union representative to discuss Gatewood’s conclusion. Nothing more came out of the incident.
Sometime in June 2005, Trenell Smith told Chu that she (Smith) did not like the way Chu smelled. As Chu recalled at her deposition, Smith said Chu “should take time... doing [her] personal care and take away the smell.” Chu replied to Smith: “I let her know when I stressed out, I sweat. Doesn’t mean I did not take a bath.” Despite Chu’s explanation, Smith continued “openly... announcing the way [Chu] smell.”
According to Chu’s opening brief, she: (1) “made multiple complaints with Kaiser’s Human Resources Department stating she felt she was being discriminated against and harassed;” (2) “continued to be harassed in her workplace, including being accused of having body odor, menstruating on office furniture, and making discriminatory remarks;” (3) “filed a written grievance complaint with Kaiser” in May 2005 in which she alleged “discrimination on the basis of her race;” and (4) “[i]n September and October, 2005, ... requested to be transferred from her supervisor [and t]hese requests were denied.” No reference to evidence in the record is given for any of these statements.
On October 27, 2005, Chu was providing the primary nursing care for a patient in labor when the patient’s contractions became “more intense, ” and then, in Chu’s words, the patient became “uncontrolled and [began] thrashing around in the bed.” Chu had to yell for help. A certified nurse midwife, Jewett Harrington, rushed into the room just as the patient delivered her baby in a “precipitous” or “unprepared” birth which caused the patient to suffer vaginal lacerations, i.e., tearing of the skin.
After the October 27, 2005 incident, the patient’s physician, Dr. Lawrence Lurvey, requested an internal investigation, including a chart review, of the events leading up to his patient’s unprepared delivery. Dr. Lurvey’s own handwritten notes of the incident indicated that a “lack of pushing and direct nursing attention” contributed to the precipitous delivery, with the resulting lacerations. Midwife Harrington’s handwritten notes of the incident indicated that Chu had neglected the patient, and that Chu’s “lack of attentiveness contributed to an unattended delivery which resulted in... lacerations.”
On November 3, 2005, Gatewood met with Chu and her union representative to discuss the events on October 27, 2005, and to allow Chu to present her account of those events. Gatewood thereafter conducted a chart review, following which she concluded that Chu’s account was not accurate, and that Chu failed to provide the patient with proper care. In accord with the CBA between Kaiser and UNAC, Gatewood decided to initiate a “Level IV Corrective Action” for Chu.
The CBA provided that Kaiser employees with alleged workplace problems generally would be subject to progressive corrective actions, but could be subject to accelerated corrective actions for acts of gross misconduct and/or negligence. Level V was the last corrective action –– termination.
The first step in the Level IV process is a meeting between the employee, a union representation (unless refused by the employee), and the employee’s supervisor and/or a department manager. During this meeting, the issues are discussed and the employee is given two documents, a completed “Day of Decision” form and a blank “Draft Action Plan” form. The Day of Decision form includes a statement of the concerns against the employee and explains that the employee is to be placed on a “one-day, decision-making leave” during which he or she must decide whether to (1) commit to changing his or her job performance, or, in the alternative, to (2) resign voluntarily from Kaiser. The Day of Decision form explains that, in the event the employee chooses to continue working for Kaiser, he or she must complete the “Draft Action Plan” form, setting forth a proposed plan for improvement. No other option is provided. An employee who decides to return to work must submit a completed Draft Action Plan form which is then incorporated into a formal “Last Chance Agreement” signed by the employee. An employee who fails to select an option, i.e., an employee who does not complete a Draft Action Plan form outlining steps for changing his or her performance, or who does not resign, is subject to involuntary termination. An employee who disputes the underlying basis for the Level IV process may complete a Draft Action Plan form, and also file a grievance to contest the underlying basis for it.
On January 19, 2006, Chu attended a Level IV meeting with Gatewood. During that meeting, Gatewood delivered a Day of Decision form and a Draft Action Plan form to Chu. For her part, Chu expressed her disagreement with Kaiser’s investigation of the events on October 27, 2005. Before signing the Day of Decision form, Chu wrote the following language at the bottom of the form: “I disagree with the... accusations [and] findings, and it is an unfair one-sided plan on just one-member of the delivery team. I would like to see this case reviewed on a fair process. I was asked to sign this form on the same day [it was given to me].” In light of Chu’s objections, Gatewood agreed to grant UNAC an opportunity to review Kaiser’s investigation.
At all relevant times, Chu understood that she could sign the corrective action plan form and then file a grievance through UNAC to contest it.
On January 20, 2006, Gatewood met with two UNAC representatives regarding Kaiser’s investigation of Chu. Chu did not attend the meeting on January 20, 2006; she called in sick. In Chu’s absence, Gatewood told the UNAC representatives that Kaiser would move to Level V Corrective Action (termination) in the event Chu did not agree to the Level IV process, including a completed Draft Action Plan form.
On January 26, 2006, Chu submitted a request to Kaiser for a leave of absence to care for her mother. Shortly thereafter, Kaiser granted Chu a leave of absence through April 26, 2006.
On February 3, 2006, UNAC informed Chu by certified letter of the outcome of its meeting to review Kaiser’s investigation leading to the Level IV process. The letter read, in part: “After review of the investigation and the evidence presented, [Kaiser] advised the Union that they would move to Level V/Termination if you did not agree to the Level IV/Last Chance Agreement. [¶]... My understanding is that you did not return to work on January 26, 2006 and [that] you are currently on Leave, therefore this matter is not resolved. [¶] Denise Gatewood... will be sending you a certified letter regarding your status. Once again, I need you to contact UNAC... as soon as possible so that we might discuss your options in order to preserve your employment.”
On April 18, 2006, Reginia O’Leary, the human resources leader at Kaiser WLA, sent a letter to Chu, stating that Chu’s leave was due to end the next week, and reminding Chu that she had not yet completed the Level IV corrective action process. O’Leary’s letter also advised Chu: “Although [Kaiser] could have terminated your employment as a result of your refusal to agree to the action plan on January 19, 2006, we have decided to postpone any corrective action until you are released to return to work. However, as soon as you return to work, a meeting will be scheduled with you and the corrective action process will be completed. Until then, you will remain employed with no change in benefits.”
Chu did not return to work in April 2006 as scheduled. Instead, Chu provided a doctor’s note to Kaiser in May 2006 stating that she still needed to care for her mother and requested an extension of her family leave of absence through June 26, 2006, which Kaiser granted.
On June 13, 2006, Chu went to Dr. Steven Grahek, a workers’ compensation physician within the Kaiser system, complaining that she had suffered a shoulder injury on the day of the precipitous birth incident, October 27, 2005. The physician provided Chu with a work restrictions document, indicating that she could be off work through June 23, 2006, and then placed on modified duty through July 6, 2006. A return visit with the physician was scheduled for July 5, 2006. On the same day, she saw the Kaiser workers’ compensation physician, Chu took the work restrictions document to Gloria Yamashiro, a transitional work coordinator in Kaiser’s occupational health department in its office in Panorama City. Yamashiro, in turn, contacted an administrative assistant in the Population Care Management (PCM) department at a Kaiser facility in Woodland Hills and verified that the PCM department in Woodland Hills could accommodate Chu doing modified duty.
On June 15, 2006, Chu sent the following handwritten note to Reginia O’Leary in the human resources department at Kaiser WLA: “Re: Date of return to work on modified duty. [¶] As of June 23, 2006, I will be released on modified duty to work only in Woodland Hills Kaiser as per Steven Grahek M.D. If you would like to arrange any meeting before or after June 23, 2006, please contact my union... representative... in UNAC office, I would be arranging my time to attend....”
On June 22, 2006, Gloria Yamashiro called Tessie Desta, the labor and delivery department administrator at Kaiser WLA, and advised Desta that Chu would be starting work in the Woodland Hill facility. Desta responded by saying that she was “not happy” about Chu being transferred to another facility. Later the same day, Reginia O’Leary in the human resources department at Kaiser WLA called Yamashiro and indicated that Chu should not be doing modified work at Woodland Hills because there were outstanding issues at Kaiser WLA.
In response to discovery promulgated by Chu, Kaiser acknowledged that the company had no written policy in place prohibiting an employee from transferring between Kaiser facilities while a Level IV action was pending.
On July 20, 2006, Kaiser’s workers’ compensation office in Oakland advised Chu by letter that it was handling a workers’ compensation claim which she had filed, and that she would be receiving temporary disability benefits at a compensation rate of $840 per week, effective as of June 13, 2006. Kaiser continued sending disability benefit payments to Chu through January 2008.
Chu’s Lawsuit and Kaiser’s Motion for Summary Judgment
In October 2007, while she was receiving disability benefits from Kaiser, Chu filed her current lawsuit against Kaiser. In January 2008, Chu filed her operative first amended complaint, alleging the following causes of action: retaliation for complaining of harassment in violation of the FEHA; retaliation for exercising her rights under the California Family Rights Act or CFRA (Gov. Code, § 12945.2 et seq.); discrimination based on physical disability in violation of the FEHA; discrimination based on race and/or national origin in violation of the FEHA; and intentional infliction of emotional distress.
Chu’s first amended complaint also alleged a cause of action for harassment under the FEHA based on age, gender, race and/or national origin, but she dismissed that claim in January 2009. Chu’s first amended complaint also alleged a cause of action for conspiracy amongst unidentified Kaiser employees, apparently on the theory that it was unlawful to “coerce” her to sign any corrective action documents. Chu has not addressed this seventh cause of action in her opening brief and we consider the claim to have been abandoned.
Chu’s operative complaint appears to allege that Kaiser terminated her employment in February 2006, when it ended health insurance benefits; that she was the victim of a retaliatory denial of a transfer to Kaiser’s facility in Woodland Hills; and that she was not allowed to resume working someplace within the Kaiser system even though she was available. Chu prayed for economic damages in the form of “losses incurred in seeking substitute employment and loss of earnings, and other employment benefits, ” and for damages for her “humiliation, mental anguish, and emotional distress.”
In July 2008, Kaiser filed a motion for summary judgment or, in the alternative, summary adjudication of each of Chu’s separate causes of action. The motion was set for hearing in September 2008. In August 2008, Chu made an ex parte application for orders continuing the summary judgment hearing date, continuing the then-pending October 2008 trial date, and shortening the time for a hearing on a motion for leave to file a second amended complaint. The trial court denied Chu’s ex parte request to shorten the notice period for a motion for leave to file a second amended complaint but did set a hearing date for the motion and, because of the potential effect of the motion for leave to amend, vacated the summary judgment motion hearing date and the trial date. In October 2008, the trial court set Kaiser’s motion for summary judgment back on calendar for hearing in December 2008. By stipulation, the hearing date was later continued to January 2009. In January 2009, six months after Kaiser filed its motion for summary judgment, Chu filed her opposition.
On January 27, 2009, the trial court heard the parties’ respective arguments on Kaiser’s motion for summary judgment and took the matter under submission. On March 2, 2009, the trial court granted Kaiser’s motion. On March 27, 2009, the trial court entered summary judgment in favor of Kaiser.
Chu filed a timely notice of appeal.
DISCUSSION
I. Kaiser’s Separate Statement Was Not Defective
Chu’s first contention is procedural. She contends the summary judgment in favor of Kaiser must be reversed because Kaiser’s separate statement of undisputed facts (Code Civ. Proc., § 437c, subd. (b)) was somehow defective with regard to Kaiser’s challenges to her second through seventh causes of action. Chu argues the summary judgment statute prohibited Kaiser from incorporating facts, and their parallel references to supporting evidence, presented in its separate statement challenging Chu’s first cause of action, into its following challenges to Chu’s second through seventh causes of action. Chu argues that Kaiser’s incorporation of previously offered facts and evidence into its challenges to her second through seventh causes of action somehow means Kaiser failed to meet its initial burden of proof with regard to those causes of action. We reject Chu’s procedural attack on the trial court’s summary judgment for two reasons.
First, Chu did not interpose an objection in the trial court to the format of Kaiser’s separate statement, and we will not consider her objection for the first time on her appeal. (Evers v. Cornelson (1984) 163 Cal.App.3d 310, 315.) Second, we disagree with Chu’s argument. Kaiser’s separate statement set forth some 67 facts, with the requisite references to supporting evidence, in its challenge to Chu’s first cause of action for retaliation under the FEHA. Kaiser’s presentation covers 15 pages of typed material. Kaiser then elected to rely upon the same facts and supporting evidence in its ensuing challenges to Chu’s second through seventh causes of action. Rather than copy 15 pages of material six times over, Kaiser incorporated its initial factual and evidentiary showing for purposes of its challenges to Chu’s remaining second through seventh causes of action. None of the legal authorities cited by Chu support her proposition that the use of this format in a separate statement is barred by the summary judgment statute. The rules simply did not require Kaiser to submit an additional 90 pages –– comprised of nothing more than multiple copies of the same material –– with its initial 15-page showing.
II. Inferences from the Evidence
Chu contends reasonable inferences drawn from the evidence “should be made in [her] favor.” We agree with Chu’s abstractly stated legal principle applicable to summary judgment motions (see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843), but find it unhelpful, offered alone as it is, for purposes of determining the correctness of the trial court’s decision to grant Kaiser’s motion for summary judgment.
III. Cause of Action Five: Race and/or National Origin Discrimination
Chu contends summary judgment must be reversed because her evidence showed the existence of triable issues of fact regarding her fifth cause of action for discrimination based on race and/or national origin in violation of the FEHA. We disagree.
California resolves discrimination claims under the FEHA by applying a burden-shifting procedure known as the McDonnell Douglas test. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz), discussing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) Under this test, the plaintiff bears the initial burden of proving a prima facie case of discrimination by presenting evidence showing: (1) he or she was a member of a protected class, (2) he or she was qualified for the position sought or was performing competently in the position held, (3) he or she suffered an adverse employment action, and (4) some other circumstance suggests a discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 354-355.)
Where the plaintiff establishes such a prima facie case, a rebuttable presumption of discrimination arises and the burden shifts to the employer to rebut the presumption by producing admissible evidence –– sufficient to raise a genuine issue of fact and to justify a judgment for the employer –– that its employment action was taken for a legitimate, nondiscriminatory reason. Where the employer sustains this burden, the presumption of discrimination disappears, and the plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer other evidence of discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 355-356.) The ultimate burden of persuasion –– at the time of trial –– on the issue of actual discrimination is on the plaintiff. (Id. at p. 356.)
The rules are slightly adjusted in the context of a motion for summary judgment. The employer bears the initial burden of showing either that the plaintiff cannot establish one or more elements of her prima facie case, or that a legitimate, nondiscriminatory reason motivated its employment action. (Guz, supra, 24 Cal.4th at pp. 356-357; see also Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851.) Where the employer meets this initial burden on summary judgment, the burden then shifts to the plaintiff to produce evidence that the employer’s asserted nondiscriminatory reason for the employment action was pretextual, or that 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 unlawful discrimination. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098, applying Guz, supra, 24 Cal.4th at pp. 356-357 and Aguilar v. Atlantic Richfield Co., supra, at pp. 850-851.) When the plaintiff fails to present any evidence from which a reasonable fact finder could infer that the employer’s true reason was discriminatory, the employer is entitled to summary judgment. (Kelly v. Stamps.com Inc., supra, at pp. 1097-1098.)
Broadly summarized, Kaiser’s evidence showed that Chu was required under the CBA between Kaiser and Chu’s union, UNAC, to complete a corrective action plan as part of the rules governing her employment. Further, Chu took a leave of absence in January 2006, without completing a corrective action plan and at no time after Chu left in January 2006, did she complete a corrective action plan. Based on these facts, Kaiser argued that Chu could not show, among other elements, any causal nexus between acts by Kaiser and any loss by Chu. In other words, Kaiser essentially argued that the damages suffered by Chu in the form of lost pay or benefits or emotional distress resulted from Kaiser’s decision to exclude her from returning to work until she completed a plan for correcting her job performance (which she never did), and not from discrimination. In granting Kaiser’s motion for summary judgment, the trial court agreed with Kaiser’s causation argument.
Chu argues her evidence showing the following facts should have defeated Kaiser’s challenge to her fifth cause of action for discrimination in violation of the FEHA because it supports a reasonable inference that discrimination occurred: Chu is a member of a protected class “as she is known to be Asian;” she was “qualified to do her job, ” she worked as a nurse at Kaiser since 1988, and worked in the labor and delivery department since 1992. Chu was not subjected to any adverse employment actions until 2005, when she was subjected to the following adverse employment actions: (a) her schedule was changed, (b) she was reprimanded for making harassment complaints; and (c) she was required to complete the Level IV process based on the events that occurred on October 27, 2005. Chu further claims Kaiser’s determination that she did not act professionally on October 27, 2005, was based on the “contradictory” statements of Dr. Lurvey and the midwife, Ms. Harrington. Finally, Chu claims Denise Gatewood stated in April 2005 that she did not want Chu in her department and was quick to decide to remove her from the weekend scheduled shortly after becoming her supervisor. Additionally, Denise Gatewood’s declaration in support of Kaiser’s motion for summary judgment states that Chu’s conduct on April 24, 2005 (the C-section incident) was “unprofessional” and “not appropriate, ” and that Chu’s conduct on October 27, 2005 (the precipitous birth incident) was “highly inappropriate.”
We will not reverse the trial court’s decision to grant Kaiser’s motion for summary judgment because, in our view, Chu failed to present evidence from which a reasonable fact finder could infer that Kaiser’s “true” reason for not allowing Chu to return to work was discriminatory. (Kelly v. Stamps.com Inc., supra, 135 Cal.App.4th at p. 1097.) First, the evidence in the record is undisputed that the Level IV corrective action process was part of the job structure at Kaiser. Further, it is undisputed that Kaiser initiated the Level IV corrective action process for Chu, and that Chu has never completed the corrective action process. There is no dispute regarding these facts. Absent illegal discrimination, we may not substitute our view of what are reasonable rules and procedures in the workplace for those implemented by Kaiser. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.) What this means, even though it is not cleanly articulated in Chu’s opening brief on appeal, is that the primary issue in this case is whether or not there is evidence suggesting that Kaiser’s decision to initiate a Level IV process for Chu was predicated on an unlawful discriminatory motive. In other words, if Kaiser properly initiated the Level IV process which Chu did not complete, then Kaiser did nothing wrong and did not cause Chu any wrongful harm.
The evidence offered by Chu does not support an inference that Kaiser had a discriminatory motive in October or November 2005 for initiating a Level IV corrective action process for Chu. First, Denise Gatewood’s decision in April 2005 to return Chu, a day-shift employee, to work her usual day shift does not suggest the existence of some discriminatory motive for initiating a Level IV process in October 2005. A supervisor’s decision to schedule an employee to work her normal hours shows nothing more than a reasonable managerial decision. Second, Chu cites us to no evidence in the record to support her assertion that she was reprimanded for complaining about harassment. Assuming Chu is referring to her complaint about the C-section assignment incident in April 2005, or about the incident involving her coworker complaining about her body odor in June 2005, we have not been referred to evidence in the record showing that Chu was reprimanded for making complaints about either of those events. Third, with regard to events more contemporaneous to the Level IV process, it is undisputed that Kaiser initiated the Level IV process immediately after a precipitous birth on October 27, 2005, and it is undisputed that birth did not go well for Kaiser’s patient. Although Chu objected that she was not to blame for any problems, no trier of fact could reasonably find that Kaiser had no grounds for investigating the care provided to its patient. The statements made by Dr. Lurvey and the midwife concerning Chu’s failure to provide proper care were not, as Chu asserts, contradictory. Fourth, there is no evidence in the record that any person associated with Chu’s Level IV process made any remarks suggesting that racial or national origin animus prompted the initiation of the process. Denise Gatewood’s statements regarding Chu’s work performance, offered in support of the summary judgment motion, do not show that Gatewood was biased at the time she decided to initiate the Level IV process.
That leaves just one piece of evidence from which discrimination may be inferred: Denise Gatewood’s statement in April 2005, when she became Chu’s supervisor, to the effect, “I don’t want you in my department.” Accepting this evidence is true, as we must in the context of a summary judgment motion (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-839), Gatewood’s statement does not show that discriminatory motive prompted the initiation of the Level IV process for Chu in October 2005. First, the cited comment is remote in time. In addition, the comment is racially neutral as it does not suggest that Gatewood wanted Chu out of the department for a race-based reason. Last, assuming Gatewood disliked Chu based on her race, it is undisputed that it was a bad medical outcome for a patient that prompted the Level IV process. In other words, there is no evidence that Gatewood actually acted on any racial animus she may have harbored.
Chu contends her case is analogous to Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138 (Sada). We disagree. In Sada, the plaintiff was a registered nurse who worked on a temporary basis at a hospital as an independent contractor. When the hospital had openings for full-time employees, the plaintiff applied, and interviewed, but was not hired. The plaintiff thereafter filed a complaint against the hospital alleging she had been the victim of a discriminatory nonhiring. The evidence in the case, submitted in the context of a summary judgment motion, showed that during the plaintiff’s interview she was complimented on her job performance during her tenure working for the hospital as a temp, before being asked, “Where are you from?” and “How come you don’t have an accent?” and “[W]hy don’t you just go back to Mexico and work there?” When the nurse started to explain that the only work she had found in Mexico had been missionary work, the interviewer interrupted and said, “We’re going to have to end this.” (Id. at p. 145.) Given this evidence, Division One of our court ruled that there were triable issues of fact precluding summary judgment on the plaintiff’s discriminatory nonhiring claim.
Sada is distinguishable from Chu’s current case. In Sada, a hiring employer considered plaintiff’s work to have been satisfactory, but did not hire plaintiff after her answers to interview questions disclosed that she was from Mexico. In Chu’s case, the employment decision was made in a context where it was undisputed that she had been involved in a medical situation with a bad outcome. And, in Chu’s case, there is no evidence showing any person at Kaiser made negative, racially tinged comments. We are satisfied that the trial court’s decision to rule in favor of Kaiser on Chu’s fifth cause of action for discrimination is not infected with error.
IV. Cause of Action One: Retaliation Under the FEHA
Chu contends summary judgment must be reversed because her evidence showed the existence of triable issues of fact regarding her first cause of action alleging retaliation under the FEHA. We disagree.
An employee engages in “protected activity” under FEHA when he or she opposes practices forbidden under FEHA. (Sada, supra, 56 Cal.App.4th at p. 155.) According to Chu’s opening brief, she engaged in “protected activity by making several complaints and suffered adverse employment action (unfavorable schedule changes, formal discipline).” What this means, says Chu, is that the issue in her case is whether “a causal link existed between her engaging in protected activity and the adverse employment actions which she was forced to endure.”
Assuming without deciding that a schedule change legally constitutes an adverse employment action, Chu cannot establish that the schedule changes were the result of unlawful retaliation in violation of the FEHA. This conclusion is inescapable because the undisputed evidence in the record establishes that Chu’s supervisor, Denise Gatewood, changed Chu’s schedule immediately upon Gatewood becoming supervisor. In other words, Gatewood changed Chu’s schedule before Chu submitted any complaint about anything in the workplace.
We also find that Chu cannot establish that the initiation of the Level IV process was the result of retaliation. In her opening brief on appeal, Chu argues she suffered this alleged adverse employment action immediately after making complaints about discriminatory conduct in September and October 2005. The problem with Chu’s argument, however, is that she does not cite us to any evidence to support her assertion that she made any complaints to Kaiser in September or October. In the absence of such evidence, Chu’s claim that she was subjected to a retaliatory, adverse employment action based on the initiation of the Level IV process in October 2005, can only be shown by the evidence that she made complaints in April and June 2005 about harassment by her coworker, Trenell Smith. We agree with Chu that, when an adverse employment action is “taken within a reasonable period of time after complaints of discrimination have been made, retaliatory intent may be inferred.” (Passantino v. Johnson & Johnson Consumer Products (9th Cir. 2000) 212 F.3d 493, 507, italics added.) In Chu’s case, however, there is a four month gap between her complaints about harassment and the initiation of the Level IV process. Further, Chu’s complaints about Smith did not aver that Smith had engaged in harassment based on race and/or national origin, and the evidence is undisputed that the Level IV process was initiated immediately after a problematic birth by a patient under Chu’s direct care. No reasonable trier of fact could find an inference of retaliation in Chu’s case.
Chu’s argument also implicitly asks us to assume that Smith’s harassment was race-based; there is no evidence to that effect in the record.
The evidence of Chu’s complaints shows that Chu essentially complained that Smith had engaged in unprofessional conduct. The FEHA does not protect employees from harassment or discrimination based on personality conflicts.
V. Cause of Action Three: Retaliation for Using CFRA Leave
Chu contends summary judgment must be reversed because her evidence showed the existence of triable issues of fact regarding her third cause of action for retaliation for using CFRA leave. We disagree.
Government Code section 12945.2, subdivision (a), provides that it is an unlawful employment practice for any employer to refuse to grant a request by any employee with a specified work history to take up to a total of 12 workweeks in a 12-month period for family care and medical leave.
According to Chu’s opening brief on appeal, Kaiser “likely based [its] decision” not to allow Chu to transfer to another facility in “retaliation for her using CFRA leave.” Chu’s argument misses the point of Kaiser’s challenge to her cause of action under the CFRA. Management at Kaiser WLA advised Chu in January 2006 that she could not return to work at Kaiser WLA until she completed the Level IV corrective action process. Kaiser’s alleged retaliatory act of initiating a Level IV process against Chu, occurred before Chu ever requested CFRA leave.
Chu’s theory that Kaiser retaliated against her for using CFRA leave by denying her a transfer from Kaiser WLA to Kaiser’s Woodland Hills facility also fails because a causal nexus is defeated by the undisputed evidence. Chu was on family leave between January and June 2006. While on family leave, she claimed she had suffered a disabling injury in October 2005. She began receiving disability benefits effective June 13, 2006, and continued receiving such benefits through January 2008. Regardless of the evidence showing that Kaiser had no formal policy precluding an employee who had a Level IV corrective action pending from transferring between Kaiser facilities, the undisputed evidence shows that Chu remained off work because she had arranged to be placed on disability, not because she was the victim of retaliation for having taken family leave. Moreover, the evidence showing that Kaiser had no formal policy barring an employee with a Level IV corrective action pending from transferring between Kaiser facilities is irrelevant to Chu’s CFRA claim. Regardless of formal policy, it is undisputed that managers at Kaiser WLA did not want Chu to transfer until she had completed her Level IV corrective action plan. In other words, the evidence shows that the managers at Kaiser WLA did not retaliate against Chu for taking family leave. Assuming the managers at Kaiser WLA otherwise violated some internal, formal policy governing employee transfers, their actions did not constitute a violation of the CFRA.
VI. Cause of Action Four: Disability Discrimination
Chu contends summary judgment must be reversed because her evidence showed the existence of triable issues of fact regarding her fourth cause of action for discrimination based on physical disability under the FEHA. We disagree.
We agree with Chu that Kaiser recognized she was disabled with an arm injury because Kaiser’s own workers’ compensation doctor determined as much. That is plainly the reason Kaiser paid disability benefits to Chu from June 2006 to January 2008. Chu’s cause of action for disability discrimination fails, however, because there is no evidence upon which a reasonable trier of fact could conclude that Kaiser’s decision not to allow her to return to work was based on her disability. As with her other claims under the FEHA, Chu’s disability-based claim is defeated because the undisputed evidence shows that Kaiser would not allow Chu to return to work until she completed a corrective action plan, and Chu never would do so.
Chu’s argument that Kaiser never undertook the “interactive process” required by Government Code section 12940, subdivision (k), misses the mark. Assuming that Chu could have been accommodated by an interactive process which led to a transfer away from Kaiser WLA, it remains undisputed that Chu did not return to work because she never completed her corrective action plan, not because of any disability.
VII. Cause of Action Six: Intentional Infliction of Emotional Distress
Chu contends summary judgment must be reversed because her evidence showed the existence of triable issues of fact regarding her sixth cause of action alleging intentional infliction of emotional distress (IIED). We disagree.
In her opening brief, Chu acknowledges that her IIED claim “is formulated upon [Kaiser’s] discriminatory and retaliatory acts against her.” According to Chu, she has “adequately established extreme and outrageous conduct via the unlawful conduct committed by [Kaiser], ” and also established that her claim for emotional distress damages was not barred by the exclusivity provisions of the Workers’ Compensation Law. In light of our conclusion that the evidence does establish any “unlawful conduct” on Kaiser’s part, Chu’s IIED claim falls with her other claims. Apart from that, Chu’s entire case is predicated on Kaiser’s acts of changing her schedule and imposing formal discipline. These types of management decisions are not sufficiently “outrageous” to support an IIED claim. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) Without deciding whether the rules applicable to an independent cause of action for IIED are the same as for the recovery of emotional distress damages attendant with a violation of the FEHA, Chu’s argument that a plaintiff may recover emotional distress damages attendant with a violation of the FEHA (see, e.g., Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1363) is a not persuasive because she has no viable FEHA claim.
DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
We concur: RUBIN, J., GRIMES, J.