Opinion
F087033
10-22-2024
KATHY ARREDONDO, Plaintiff and Appellant, v. SAINT AGNES MEDICAL CENTER, Defendant and Respondent.
Kathy Arredondo, in pro. per., for Plaintiff and Appellant. Wanger Jones Helsley, Michael S. Helsley and Stephanie M. Hosman for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 21CECG02006. Kristi C. Kapetan, Judge.
Kathy Arredondo, in pro. per., for Plaintiff and Appellant.
Wanger Jones Helsley, Michael S. Helsley and Stephanie M. Hosman for Defendant and Respondent.
OPINION
DE SANTOS, J.
Plaintiff Kathy Arredondo appeals from a judgment entered in favor of defendant Saint Agnes Medical Center (Saint Agnes) after the trial court granted Saint Agnes's motion for summary judgment on Arredondo's complaint alleging disability-related employment claims under the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq.) (FEHA). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
" 'Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion.'" (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716717.) We consider all the evidence in the moving and opposing papers, except evidence to which objections were made and properly sustained, liberally construing and reasonably deducing inferences from Arredondo's evidence, and resolving any doubts in the evidence in Arredondo's favor. (Id. at p. 717; Code Civ. Proc., § 437c, subd. (c) .)
Undesignated statutory references are to the Code of Civil Procedure.
Arredondo's Employment History
Saint Agnes hired Arredondo as a Clinical Nurse III on September 24, 2018. Arredondo is a recovered alcoholic who has been sober since September 11, 2020. Due to the Covid-19 pandemic, Arredondo was placed on a two-month unpaid furlough from April 26 to June 20, 2020.
Arredondo took a medical leave of absence beginning July 13, 2020, but she is still an employee of Saint Agnes.
Arredondo's Demotion
Saint Agnes has a Professional Nurse Advancement Program (the program) which, in part, defines Clinical Nurse levels I through IV and requires clinical nurses to timely submit retainment applications. Under the program, a Clinical Nurse III who wishes to remain at that level must apply for retainment every two years by submitting a completed retainment packet one month prior to the nurse's license renewal date. If a completed retainment packet is not submitted, the nurse will be reclassified to the Clinical Nurse II level with a corresponding decrease to the nurse's hourly rate of pay.
Under the program, Arredondo's completed application to remain a Clinical Nurse III was due on March 31, 2020, but she failed to timely submit a completed application. Arredondo also attempted to apply for advancement to a Clinical Nurse IV under the program in 2020, but she failed to complete the required retainment packet to be considered for advancement. Because Arredondo did not timely submit a completed retainment packet or application to advance to a Clinical Nurse IV, she was reclassified from a Clinical Nurse III to a Clinical Nurse II in October 2020. Approximately 100 other nurses also were moved down a clinical nurse level in 2020.
In deciding to reclassify Arredondo, Cathy Klinge, a senior compensation representative at Saint Agnes explained to Arredondo's director: "But I am thinking we should probably proceed with stepping down Kathleen Arre[]dondo 4247101 who was due [] 3/31/2020-and as you said she submitted for CN4 in April but was missing a whole bunch of stuff (that she didn't complete when she was back working in June and July)-since she hasn't completed either the CN3 or CN4 level-she will just submit the CN3 advancement when she returns and the CN4 as she meets the requirements." Arredondo's director agreed with this course of action.
The Alleged Acts of Harassment
During Arredondo's employment at Saint Agnes, she spoke to only three people on three occasions about being a recovering alcoholic. These incidents occurred during the first six months of her employment and Arredondo volunteered the information.
The first incident occurred during Arredondo's interview process in August 2018, when Arredondo told Saint Agnes's recruiter, Lisa Braun, there were gaps in her employment history because she was in recovery for alcoholism. The second occurred during Arredondo's onboarding process when she told her manager, Deb Pimentel, the Board of Registered Nursing disciplined her for her alcoholism with the last incident occurring in 2004. Finally, while in the break room with staff, Arredondo's supervisor, Mitch Basset, talked about drinking "potato juice" and "Russian water." When Arredondo was leaving the break room, she told Basset, in response to the joke, she did not drink as she was in recovery.
Arredondo provided two written complaints to human resources-the first on April 6, 2020, and the other on June 17, 2020-which included all the times she believed she was treated unfairly or harassed from when she started working at Saint Agnes through June 17, 2020. Arredondo, however, never mentioned in these complaints that any of the issues were related to her being a recovered alcoholic. Human resources tried to meet with Arredondo to discuss her concerns, but a meeting never took place due to scheduling conflicts and because Arredondo was ill and she went on a stress leave of absence in July 2020. While Arredondo may reapply for advancement from a Clinical Nurse II to Clinical Nurse III, and then seek advancement to Clinical Nurse IV, she has not reapplied.
Arredondo's Employment File
Saint Agnes uses Workday software to post open positions at the hospital. When Saint Agnes started using Workday, Saint Agnes used three levels of options to post positions-(1) Internal, (2) Standard, and (3) Nursing-which allowed candidates to search for nursing positions more quickly. Saint Agnes later decided to remove "Nursing" as an option, which left only two options-Internal and Standard (which means External).
When Arredondo applied for nursing positions in 2017 and 2018, "Nursing" had been removed as an option, and that job posting option was changed to "Nursing-Do Not Use" so recruiters would not select "Nursing" as an option. When Arredondo was offered the clinical nurse position on August 23, 2018, which she accepted, the posting for the position had three options to select: Internal, Standard, and Nursing-Do Not Use. The words "Nursing-Do Not Use" did not have anything to do with Arredondo's employment status and the same words appeared next to other nursing applicants during the same period.
This Lawsuit
In July 2021, Arredondo filed a lawsuit against Saint Agnes alleging causes of action under FEHA for (1) harassment based on disability; (2) discrimination; (3) discrimination based on disability; (4) retaliation for complaining about discrimination; and (5) failure to prevent discrimination and harassment. The complaint also alleged causes of action for wrongful constructive termination in violation of public policy and intentional infliction of emotional distress.
Arredondo was represented by an attorney when she filed the complaint. That attorney was replaced by another attorney in July 2022. The second attorney was relieved as counsel on August 8, 2023, and Arredondo represented herself throughout the summary judgment proceedings and on appeal.
The complaint alleged that when Arredondo applied for her position in 2018, her employment file included the note" 'Do not use this R.N.,'" which was placed in Arredondo's file due to her protected status as a recovered alcoholic, and Saint Agnes subsequently discriminated against Arredondo, denied her advances, and retaliated against her for objecting to her mistreatment.
The causes of action alleged: (1) Arredondo was subjected to unwanted harassing conduct because she is a recovered alcoholic; (2) she was subjected to adverse employment actions, including denial of hours and upward mobility, based on her disability; (3) while Saint Agnes knew Arredondo had a disability that limited her capacity to tolerate harassment and other negative behaviors in the workplace, she was subjected to adverse employment actions motivated by Arredondo's disability; (4) Saint Agnes took adverse employment actions against Arredondo because she made good-faith complaints of FEHA violations; (5) Saint Agnes failed to take reasonable steps necessary to prevent the harassment, discrimination, or retaliation; (6) Saint Agnes constructively terminated Arredondo by forcing her onto disability; and (7) Saint Agnes's discriminatory, harassing, and retaliatory actions caused Arredondo extreme emotional distress.
The Summary Judgment Motion
Saint Agnes moved for summary judgment or, in the alternative, summary adjudication, in February 2023. Saint Agnes argued Arredondo could not establish a claim for harassment under FEHA because it was undisputed that she was never submitted to acts that would constitute actionable harassment because: (1) her status as a recovered alcoholic was only referenced three times during her employment and she volunteered the information; (2) the first two incidents were simply Arredondo explaining her history of recovery; and (3) the last incident was a single, isolated one where a coworker was making a joke.
As for Arredondo's two disability discrimination claims, Saint Agnes contended they failed because Arredondo was not qualified to remain a Clinical Nurse III, and it had a legitimate, nondiscriminatory reason to reassign her to a Clinical Nurse II, which also was fatal to her retaliation claim. Saint Agnes asserted that because Arredondo did not have actionable claims for discrimination, harassment, and retaliation, she could not establish her claim that Saint Agnes failed to take reasonable steps to prevent harassment, discrimination, or retaliation. Saint Agnes argued it was entitled to judgment on the constructive termination claim because Arredondo never resigned her position, and her intentional infliction of emotional distress claim failed because it was based on her discrimination and harassment claims.
Arredondo's Opposition
Pursuant to a joint stipulation signed by the parties and filed on April 12, 2023, Arredondo's response to Saint Agnes's motion was due on August 24, 2023, with the motion to be heard on September 7, 2023.
Arredondo filed her opposition to Saint Agnes's motion on August 22, 2023. Arredondo submitted two documents, one in part entitled, "MOTION OPPOSING SUMMARY JUDGEMENT _," and the other a "MEMORANDUM OF POINTS AND AUTHORITIES _," which contained Arredondo's legal arguments. Arredondo also filed a document entitled, in part, "PLAINTIFF'S OPPOSITION TO DEFENDANT'S UNDISPUTED FACTS ..," to which were attached 273 pages of exhibits, and her own declaration. Finally, Arredondo filed a proof of service on August 22, 2023, which she signed. Arredondo declared she mailed the opposition to "Michael S. Helsley, and Stephanie M. Hosman" at "E. River Park Circle, Suite 310[,] 2 Fresno, California 93720."
In her legal arguments, Arredondo asserted that Saint Agnes retaliated against her due to her protected class as a recovered alcoholic with anxiety and posttraumatic stress disorder, and for her reports of discrimination, harassment, and hostile work environment. Arredondo specifically argued: (1) Saint Agnes did not produce admissible evidence regarding the use of the note "Nursing-Do Not Use" in her employee file, and she believed the note was placed there because she was a recovered alcohol; (2) there were triable issues of fact regarding her constructive termination claim as she took stress leave due to harassment, which consisted of losing hours, her work being scrutinized, being placed on furlough longer than her peers, and scheduling her work so she was unable to attend committee meetings and policy review teams; (3) Saint Agnes falsely claimed she did not submit her documentation to remain as a Clinical Nurse III and demoted her without notifying her, which was evidence of pretext, and while she turned in her binder to be elevated to a Clinical Nurse IV, it was not processed; (4) Saint Agnes did not investigate her complaints to human resources, which was evidence of pretext; (5) Saint Agnes did not follow its own harassment policy as it allowed the harassment to continue, which suggested discrimination; and (6) her employment file was manipulated or modified.
Arredondo argued in her opposition that there were issues of fact concerning her claims for: (1) hostile work environment harassment, as she was subjected to severe and pervasive harassment because she is a recovered alcoholic; (2) retaliation, as Saint Agnes demoted her, overlooked her application for the Clinical Nurse III position, sent different employee files to her and her attorneys, brought her back from furlough later than her coworkers, and caused her "Contractual Dismissal" in retaliation for reporting unlawful behavior to human resources and filing complaints with the Department of Fair Employment and Housing and Equal Employment Opportunity Commission; and (3) wrongful constructive termination, as she resigned due to Saint Agnes's discrimination against her.
On August 28, 2023, Arredondo filed a second proof of service, signed by another individual, which stated the opposition was served on Saint Agnes's counsel by first class mail that day. It named the person served as "Michael Hensley Esq. Stephine Hosman Esq., Wagner, Jone[s] and Hensley," and the address as "265 East River Park Circle, Suite 310 Fresno CA 93720."
Saint Agnes's Response
On August 29, 2023, Saint Agnes filed and served a notice of non-opposition to its summary judgment motion. The next day, Saint Agnes filed and served the declaration of Michael S. Helsley, an attorney from the law firm representing Saint Agnes, in support of the notice of non-opposition. Helsley explained that after serving Saint Agnes's notice of non-opposition, Arredondo responded that she mailed documents to the law firm as shown on the August 28, 2023 proof of service. Helsley further explained that he e-mailed Arredondo on August 29, 2023, to confirm that she mailed her opposition and told her the law firm had not received the opposition papers. Arredondo did not respond to this e-mail. As of August 30, 2023, Saint Agnes's counsel had not received the opposition, and Helsley urged the court to disregard any opposition to the summary judgment motion.
The Trial Court's Decision
The hearing on the summary judgment motion was held on October 11, 2023. After considering the arguments made by Arredondo and Saint Agnes's counsel, the trial court adopted its tentative ruling to grant the motion for summary judgment as to the entire complaint.
The trial court found Saint Agnes met its burden of showing that Arredondo could not establish her harassment claim. The trial court explained that Saint Agnes's evidence showed there were only three instances when Arredondo's status as a recovered alcoholic was mentioned by anyone when she worked at Saint Agnes and none of the incidents constituted severe or pervasive harassment necessary to establish a hostile work environment. The trial court noted that while Arredondo filed two complaints with Saint Agnes's human resource department regarding harassment and unfair treatment, none of the incidents she mentioned involved her status as a recovered alcoholic and did not involve her suffering harassment for being a recovered alcoholic.
The trial court found that Arredondo failed to meet her burden to offer some admissible evidence that she was subjected to severe or pervasive harassment due to her disability. The trial court first explained that it "could simply disregard the opposition" as Arredondo did not serve it on Saint Agnes at least 14 days before the hearing date, as required by section 437c, subdivision (b)(2), since Arredondo served the opposition four days after the due date and while she claimed the opposition was mailed to defense counsel's office on August 28, 2023, defense counsel claimed he had yet to receive it.
The trial court next explained that even if it considered the opposition, it did not contain admissible evidence that would raise a triable issue of material fact on whether Arredondo was harassed due to her alcoholism. The trial court found most of the evidence Arredondo submitted was not admissible, as it was not in the form of declarations sworn under penalty of perjury or attached to sworn declarations establishing adequate foundation or authentication, and Arredondo's statements in her opposition brief were not admissible because they were not sworn under penalty of perjury.
The trial court nevertheless stated that if it considered Arredondo's allegations, she did not cite to any evidence that her treatment was based on her status as a recovered alcoholic or that Saint Agnes singled her out for unfair treatment based on her disability. It appeared that most of the incidents Arredondo complained of were not related to her disability and instead involved ordinary workplace conflict and minor disputes that did not suggest unlawful harassment. Although it seemed Arredondo was speculating that the notation in her file "Nursing-Do Not Use" meant Saint Agnes had determined not to allow her to work as a nurse or advance to higher levels, Saint Agnes offered evidence that the notation had nothing to do with Arredondo and instead was an administrative note not to use "Nursing" as a job title on the form. Arredondo did not offer any admissible evidence to show Saint Agnes intended to limit her job prospects based on her history of alcoholism.
The trial court overruled Arredondo's objection to the declaration of the Saint Agnes employee who explained why the "Do Not Use" notation was in Arredondo's file. The trial court found that regardless of the notation's meaning, it did not raise a triable issue of material fact as there was no evidence the notation was used to harass Arredondo or that she was even aware of the note while she was working for Saint Agnes.
On the two discrimination claims, the trial court first noted that Arredondo did not allege she was fired or forced to leave her employment; rather, she admitted she took a leave of absence and remained employed with Saint Agnes. Arredondo instead alleged Saint Agnes discriminated against her by denying her hours and upward mobility and subjecting her to other adverse employment actions due to her disability, namely, that she was denied the chance to be promoted to the position of Clinical Nurse IV and demoted to Clinical Nurse II after she took a leave of absence from her job due to medical reasons in July 2020.
The trial court found Saint Agnes met its burden of showing it had a legitimate, nondiscriminatory reason for demoting Arredondo, as she failed to complete the required paperwork to remain a Clinical Nurse III or move up to a Clinical Nurse IV. While the burden shifted to Arredondo to present some admissible evidence showing Saint Agnes's claimed legitimate reason for demoting her was a pretext and instead it demoted her based on an improper motive, she failed to do so, as she did not deny she failed to submit completed documents to be retained as a Clinical Nurse III and there was no admissible evidence that the documents to be promoted to a Clinical Nurse IV were actually complete and entitled her to the promotion.
In addition, Arredondo had not presented any evidence tending to show Saint Agnes's reason for demoting her was a pretext for discriminating against her based on her history of alcoholism. The trial court acknowledged Arredondo's claim that the recruiter who hired her gave an inconsistent explanation for the "Nursing-Do Not Use" notation during her deposition. The trial court, however, determined the recruiter's testimony failed to create a triable issue on whether the notation indicated Saint Agnes discriminated against Arredondo because, while that testimony was somewhat inconsistent with the explanation given by the other Saint Agnes employee, the recruiter agreed the notation had nothing to do with Arredondo or her history of alcoholism.
On the retaliation claim, the trial court noted Arredondo alleged Saint Agnes retaliated against her for complaining about harassment and discrimination by demoting her and denying her the opportunity to advance in her career, as well as denying her hours, reducing her pay, subjecting her to further harassment, and giving her unreasonably increased workloads. Saint Agnes, however, offered a facially legitimate reason for its decision to demote Arredondo and Arredondo failed to point to any admissible evidence that would raise a triable issue of fact on whether Saint Agnes's proferred reason was a pretext for illegal retaliation or to show a causal connection between her filing the complaints and her subsequent demotion.
The trial court found that because Arredondo failed to raise any triable issues of fact regarding her harassment, discrimination, and retaliation claims, she could not prevail on her claims for failure to prevent such harassment, discrimination, or retaliation, and intentional infliction of emotional distress. Finally, the trial court found Arredondo could not prevail on her constructive discharge claim because she had not resigned from her job.
Judgment was entered in Saint Agnes's favor on October 20, 2023.
DISCUSSION
Arredondo contends the trial court erred in granting the summary judgment motion because triable issues of fact exist. Throughout her opening brief, Arredondo lists approximately 11 purported triable issues of fact that she argues the trial court failed to consider, but she does not link them to any cause of action or make any cognizable argument, supported by citation to the record and to authority, as to why these facts preclude entry of summary judgment on the causes of action alleged in her complaint. Arredondo also complains that defense counsel willfully suppressed evidence during discovery, and the trial court was biased or prejudiced against her.
Arredondo has attached documents to her reply brief which she asks us to consider, including letters she purportedly sent to Saint Agnes attempting to resign from her position and settlement discussions between her and Saint Agnes's counsel. Of course, we decline to consider these documents as they are not part of the appellate record and do not otherwise constitute an item that is appropriate to include as an attachment to a brief. (See Cal. Rules of Court, rule 8.204(d); Wilson v. 21st Century Ins. Co., supra, 42 Cal.4th at pp. 716-717; Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 ["[t]he appellate court must examine only papers before the trial court when it considered the motion, and not documents filed later"].)
Saint Agnes asks us to affirm the trial court's decision to grant summary judgment because Arredondo failed to file an appropriate responsive separate statement and her opening brief does not comply with the California Rules of Court. Saint Agnes further argues it met its burden of proving a lawful basis existed for the employment actions taken against Arredondo and Arredondo failed to provide admissible evidence showing any disputed issues of material fact in support of her claims.
I. Summary Judgment and the Standard of Review
A defendant such as Saint Agnes is entitled to a summary judgment on the basis that the "action has no merit" (§ 437c, subd. (a)(1)) only where the court can determine from the evidence presented that "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" (§ 437c, subd. (c)). A cause of action "has no merit" if one or more of the elements of the cause of action cannot be established or an affirmative defense to the cause of action can be established as a matter of law. (§ 437c, subd. (o).) Thus, the moving defendant has the ultimate burden of persuasion that one or more elements of the cause of action at issue "cannot be established" or that "there is a complete defense to the cause of action." (§ 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 850, 853-854.) In attempting to achieve this goal, the defendant has the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. (§ 437c, subd. (p)(2); Aguilar, at p. 850.) If the defendant meets this burden, then the burden of production shifts to the plaintiff to establish the existence of a triable issue of material fact. (§ 437c, subd. (p)(2); Aguilar, at pp. 850-851.)
The burden of persuasion, sometimes referred to as the burden of proof, means the party's obligation "to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court." (Evid. Code, § 115.)
The burden of production means "the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue." (Evid. Code, § 110.)
When a plaintiff appeals from an order granting a defendant summary judgment, we must independently examine the record to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; § 437c, subd. (c).)" 'Since defendants obtained summary judgment in their favor, "we review the record de novo to determine whether [they have] conclusively negated a necessary element of the plaintiff's case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial." '" (Saelzler, at p. 767.) "In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Id. at pp. 768-769.)
While we review the record de novo to determine if the moving party met its burden of proof, we are not required to cull the record for Arredondo's benefit in order to attempt to uncover the requisite triable issues. (Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, 212.)" 'As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.'" (Ibid.) "One cannot simply say the court erred, and leave it up to the appellate court to figure out why." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.)
At the same time, "[a] party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. (See Code Civ. Proc., § 437c, subd. (o)(2).) This is true even if the opposing party fails to file any opposition. (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087.) 'The court's assessment of whether the moving party has carried its burden-and therefore caused a shift-occurs before the court's evaluation of the opposing party's papers. [Citations.] Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers. And because a reviewing court employs the same three-step process in the course of its de novo review of a summary judgment [citation], this conclusion applies with equal force on appeal.'" (Mosley v. Pacific Specialty Ins. Co. (2020) 49 Cal.App.5th 417, 434; see Denton v. City and County of San Francisco (2017) 16 Cal.App.5th 779, 794 ["even without opposition, a court may not grant a motion for summary judgment unless it first determines that defendants have met their initial burden of proof"].)
For this reason, Saint Agnes's argument is meritless that we should affirm the grant of summary judgment merely because Arredondo did not comply with the California Rules of Court in her response to Saint Agnes's separate statement of undisputed material facts. Moreover, the trial court did not grant summary judgment based on an improper responsive separate statement. Had it done so, it arguably would have been an abuse of discretion, as generally in such circumstances the trial court must give the opposing party the opportunity to file a proper separate statement. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263.) Instead, the trial court here exercised its discretion to address the merits of the motion notwithstanding Arredondo's failure to fully comply with California Rules of Court, rule 3.1350. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1212 [trial court has discretion to proceed to the merits of a summary judgment motion despite the opposing party's failure to comply with the California Rules of Court].) Saint Agnes, who appears not to have raised this issue below and has not appealed, does not contend the trial court abused its discretion in so proceeding. Accordingly, we disregard Saint Agnes's contention that we should affirm the grant of summary judgment because Arredondo did not file a response to Saint Agnes's separate statement that addressed Saint Agnes's undisputed material facts or that failed to include additional material facts.
As a self-represented litigant, Arredondo "is entitled to the same but no greater consideration than other litigants," and she is required to follow the rules of appellate procedure. (County of Sacramento v. Singh (2021) 65 Cal.App.5th 858, 861; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) As Saint Agnes points out, Arredondo's brief is deficient in many ways, including: (1) no separate headings for claims of error supported by argument and citation of authority; (2) no citations to the record for many factual assertions; and (3) inclusion of facts that are not in the record. (Cal. Rules of Court, rule 8.204(a)(1)(B), (C), (2)(C), (b)(4).) Although such defects would allow us to strike the brief (id., rule 8.204(e)(2)(B)), we exercise our discretion to disregard Arredondo's noncompliance with the rules (id., rule 8.204(e)(2)(C)), and disregard all factual assertions unsupported by the record and all legal arguments unsupported by authority. (County of Sacramento, at p. 861; Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 150.)
II. Summary Judgment Was Properly Granted
As best we can glean from Arredondo's opening brief, although she does not tie her argument to specific causes of action, her focus on the evidence Saint Agnes submitted in support of its motion is meant to contest the trial court's ruling on the harassment, discrimination, and retaliation causes of action. In support of her argument that the trial court erred, Arredondo contends the trial court erred in relying on the declarations of the Saint Agnes employees who explained the meaning of the "Nursing- Do Not Use" notation in her employment file, and why she was not retained as a Clinical Nurse III or promoted to a Clinical Nurse IV.
A. The Elements of the FEHA Claims
Arredondo's causes of action for harassment, discrimination, and retaliation arise under FEHA, which is designed to further the public policy that "[e]mployment practices should treat all individuals equally, evaluating each on the basis of individual skills, knowledge and abilities and not on the basis of characteristics generally attributed to [protected groups]." (Cal. Code Regs., tit. 2, § 11006.) Specifically, FEHA prohibits "an employer, because of the ... physical disability, ... medical condition, ... of any person," to discharge a person from employment, discriminate against the person in compensation or in terms, conditions, or privileges of employment, harass, or fail to make reasonable accommodation for a known physical disability of the person. (Gov. Code, § 12940, subds. (a), (j), (m).) The statute also prohibits an employer from terminating or otherwise discriminating against an employee because he or she has opposed any practices forbidden under the statute or has filed a complaint in any proceeding under it. (Id., § 12940, subd. (h).)
In cases brought under FEHA, the plaintiff bears the initial burden of proving a prima facie case. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) A prima facie case of discrimination is proved where: (1) the plaintiff was a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the position she held; (3) she suffered an adverse employment action; and (4) some other circumstance suggests a discriminatory motive. (Id. at p. 355; see Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.) A prima facie case of retaliation is proved where: (1) the plaintiff was engaged in a protected activity; (2) the employer subjected her to an adverse employment action; and (3) a causal link existed between the protected activity and the employer's action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) And to establish a prima facie case of disability harassment, a plaintiff must show he or she was subjected to a hostile work environment based on a disability, and the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1045; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608; see Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431, 446 [looking to requirements for a hostile environment sexual harassment claim to evaluate claim of harassment based on mental disability or medical condition], disapproved on another point in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.)
Where an employer moves for summary judgment in a case involving alleged violations of FEHA, the employer must show either that the plaintiff cannot establish one or more elements of her prima facie case, or that one or more legitimate, nondiscriminatory and nonretaliatory reasons motivated its allegedly adverse employment action. (Guz, supra, 24 Cal.4th at p. 356; Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098; Jones v. Department of Corrections &Rehabilitation (2007) 152 Cal.App.4th 1367, 1379 (Jones).)
If the employer meets this initial burden, the burden shifts to the plaintiff to produce substantial evidence that the employer's stated nondiscriminatory and nonretaliatory reason for the adverse employment action was untrue or pretextual, or evidence the employer acted with a discriminatory or retaliatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination or intentional retaliation. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005; see Jones, supra, 152 Cal.App.4th at pp. 1379-1380; Yanowitz, supra, 36 Cal.4th at p. 1042; see also Guz, supra, 24 Cal.4th at pp. 355-356 [under FEHA, "[t]he ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff"].)
B. Analysis
Here, Saint Agnes sought summary judgment on the basis that it had legitimate, nondiscriminatory reasons for taking each of the adverse employment actions alleged in this case, namely, denying Arredondo the chance to be promoted to a Clinical Nurse IV and demoting her to Clinical Nurse II after she took her leave of absence in July 2020. Saint Agnes further argued Arredondo was not subjected to harassment for being a recovered alcoholic, and the "Nursing-Do Not Use" notation in her employment file was not evidence of harassment or discrimination.
Specifically, on the issue of Arredondo's demotion and failure to advance, Saint Agnes submitted the declaration of Cathy Klinge, who was a senior compensation representative for Saint Agnes responsible for advancing, retaining, or reassigning clinical nurses as part of the program. Klinge declared that she was involved in the decision to move Arredondo from a Clinical Nurse III to a Clinical Nurse II, because Arredondo failed to timely submit a completed retainment packet as required by the program. Klinge further declared that Arredondo failed to complete a packet required to be considered for advancement to a Clinical Nurse IV position under the program. Accordingly, on October 2, 2020, Klinge e-mailed Paula Jordan, the director of surgical services where Arredondo worked, and explained that because Arredondo did not complete her Clinical Nurse III or IV applications, she should be moved down to a Clinical Nurse II. Klinge thereafter e-mailed Arredondo and notified her that because she had not completed the required retainment packets, she would be reclassified to the preceding clinical nurse level. Klinge stated that Arredondo was not the only one who was demoted in 2020-approximately 100 other nurses were also moved down a clinical nurse level.
With respect to Arredondo's harassment claim, Saint Agnes offered evidence from Arredondo's deposition. Arredondo admitted there were only three instances where her status as a recovered alcoholic was mentioned by anyone while she worked at Saint Agnes. On two of those occasions, Arredondo brought up the issue to explain gaps in her employment history and explain that she was disciplined by the Board of Registered Nurses, and the third involved her supervisor joking about "Russian water" and "potato juice" in front of her. Arredondo also testified about two written complaints she made to human resources in which she included all the times she believed she was treated unfairly or was harassed, but she never mentioned that any of the alleged issues were due to her being a recovered alcoholic.
Finally, to address the meaning of the "Nursing-Do Not Use" notation in Arredondo's file, Saint Agnes submitted a declaration from Alison Millhollen, who had been Saint Agnes's regional manager of talent acquisition since February 2014 in charge of locating and recruiting qualified applicants. Millhollen explained: (1) Saint Agnes uses Workday software to post open positions at the hospital; (2) when Saint Agnes started using the software it used three levels of options to post positions-"Internal, Standard and Nursing"; (3) in 2017 and 2018, Saint Agnes removed "Nursing" as an option and included only two options, "Internal and Standard"; (4) when Arredondo applied for nursing positions, "Nursing" was removed as an option and that option was changed to "Nursing-Do Not Use" so recruiters would not use that option, which was reflected on the job posting for Arredondo's position; and (5) the words "Nursing-Do Not Use" had nothing to do with Arredondo's employment status and appears next to other nursing applicants during the same time.
Having considered this evidence, we conclude it was sufficient to establish Saint Agnes had legitimate, rather than illicit, reasons for taking adverse employment actions against Arredondo and Arredondo was not subjected to actionable severe or pervasive harassment due to her disability. Thus, the burden shifted to Arredondo to produce evidence that, taken as a whole, would permit a reasonable inference these actions were taken to harass or intentionally discriminate or retaliate against her. (Guz, supra, 24 Cal.4th at pp. 356, 361; Kelly v. Stamps.com Inc., supra, 135 Cal.App.4th at pp. 10971098; Jones, supra, 152 Cal.App.4th at p. 1379.)
Arredondo failed to satisfy her burden. She did not cite any evidence that her treatment was based on her status as a recovered alcoholic or that Saint Agnes singled her out for unfair treatment based on her disability. Most of the incidents Arredondo complained of in her written complaints were ordinary workplace conflicts and minor disputes, and she does not point to any evidence that they were related to her being a recovered alcoholic or because she had anxiety and depression. As the trial court found, most of Arredondo's evidence was not admissible as it was not in the form of declarations signed under penalty of perjury or attached to sworn declarations with adequate foundation attached. Arredondo does not explain on appeal how that finding was erroneous.
Arredondo asserts that in addition to being a recovered alcoholic, her disabilities include "emotional dysregulation, anxiety, and depression," and the trial court failed to consider the evidence she submitted that shows she has a disability. But the trial court was not required to do so, as Saint Agnes's motion assumed she was disabled and instead addressed other elements of her claims, namely, that she was not subjected to actionable harassment or adverse employment actions.
Arredondo contends Klinge's declaration does not establish that her application to be promoted to a Clinical Nurse IV was incomplete, as Klinge does not explain how the application was incomplete, or that Arredondo was not qualified to remain a Clinical Nurse III. She asserts there is no document to substantiate the summary of the application produced by defense counsel or that management met with her when she returned from furlough in June 2020 to review what was missing from the application binder. She claims she was not notified of the demotion because Klinge e-mailed her at her work e-mail, which she was locked out of after she took medical leave.
Arredondo, however, does not cite to any record evidence to support her assertions. Klinge's declaration was sufficient to establish that Arredondo failed to timely submit a completed retainment packet, and Arredondo failed to complete the application to be promoted to Clinical Nurse IV. It was incumbent on Arredondo to present admissible evidence that these statements were untrue, i.e., that she timely submitted a completed retainment packet and her application for advancement was complete. She failed to do so.
Arredondo asserts she had sufficient experience to remain a Clinical Nurse III, but she ignores that the program required her to reapply for retainment at clinical level III. Arredondo claims the program expired, but the program document clearly states that it became effective in October 1979 and was revised in November 2018. Thus, the program was in effect in 2020, when Arredondo was required to reapply for retainment.
Arredondo also contends Millhollen was not qualified to explain how the "Nursing-Do Not Use" notation got into Arredondo's employment file. She argues only an expert in the field of information technology or someone with software experience could testify about the notation's use. The trial court addressed this contention below, treating it as an evidentiary objection, which the trial court overruled.
Trial court evidentiary rulings are generally reviewed for abuse of discretion, and the weight of authority applies this standard even on review of a summary judgment motion, which is otherwise reviewed de novo. (Strobel v. Johnson &Johnson (2021) 70 Cal.App.5th 796, 810; Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 226; Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 82; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) "[E]videntiary objections based on lack of foundation, qualification of experts, and conclusory and speculative testimony are traditionally left to the sound discretion of the trial court." (Alexander, at p. 226.)" '[T]he appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered.'" (Ibid.)
Here, the trial court found Millhollen was competent to testify about the notations used by the Workday program as she was familiar with the Workday program and how Saint Agnes used it when hiring new employees since she is the regional manager of Saint Agnes's recruiting department. The trial court determined she did not need to be an expert in computer programming to testify about how Saint Agnes uses the program or what the notes regarding job positions meant. Arredondo does not show that this ruling exceeded the bounds of reason.
A computer expert is not required to authenticate a computer-generated report. (People v. Rodriguez (2017) 16 Cal.App.5th 355, 376.) Rather, a person who generally understands the automated system's operation and possesses sufficient knowledge and skill to use the system and explain the resultant data, even if unable to perform every task from initial design and programming to final printout, is a qualified witness for purposes of authentication. (People v. Lugashi (1988) 205 Cal.App.3d 632, 640.) Courts in California "have refused to require, as a prerequisite to admission of computer records, testimony on the 'acceptability, accuracy, maintenance, and reliability of ... computer hardware and software'" in similar situations. (People v. Martinez (2000) 22 Cal.4th 106, 132 [computer generated printout of defendant's criminal history from CLETS (California Law Enforcement Telecommunications System) properly authenticated by paralegal working in district attorney's office]; see Rodriguez, at pp. 359, 374-375 [police officer's testimony sufficient to authenticate GPS data transmitted by the defendant's electronic ankle bracelet]; People v. Goldsmith (2014) 59 Cal.4th 258, 272 [evidence from automated traffic enforcement system properly authenticated by police department investigator]; Lugashi, at p. 642 [computer records of merchant credit card transactions properly authenticated by bank employee who regularly used computerized system that generated and stored information].)
Here, as the person in charge of locating and recruiting qualified applicants, Millhollen knew how the Workday system operated, why the notation "Nursing-Do Not Use" appeared in Arredondo's employment records, and what that notation meant. Arredondo has not presented any evidence that conflicts with Millhollen's explanation. Arredondo asserts the notation is hearsay, but data that is automatically generated by a computer is not hearsay because it is not a statement of a person. (People v. Rodriguez, supra, 16 Cal.App.5th at pp. 379, 381 [computer-generated report of GPS data generated by ankle monitor was not hearsay because it did not consist of statements by a person].) Here, as Millhollen explained, the notation was automatically generated by the Workday software; therefore, the notation is not hearsay.
Arredondo asserts there is a triable issue of fact because Lisa Braun, the recruiter who hired her, gave an inconsistent explanation for the "Nursing-Do Not Use" notation during Braun's deposition. Braun testified she was unsure of why the notation appeared in Arredondo's file and it was beyond the scope of her area of expertise, but she thought it meant "we're not allowed to use that regret letter," meaning the system would not allow the recruiter to use the "Nursing" entry to send a "regret letter" to candidates who were not hired. Braun, however, did not believe the notation was entered just for Arredondo, but rather was used for any candidate applying for a job at that time, and the same notation was in other people's files.
Documents that appear to be excerpts from Braun's deposition are attached to Arredondo's opposition, but they are not authenticated.
We agree with the trial court that while Braun gave an explanation concerning the notation that was somewhat inconsistent with Millhollen's explanation, she agreed with Millhollen that the code had nothing to do with Arredondo and it was a generic code that appeared in many people's files at the time. Therefore, Braun's testimony failed to raise any triable issue on whether the notation indicated Saint Agnes discriminated or retaliated against Arredondo by adding a notation that she was a nurse who was not to be used.
Arredondo makes two additional arguments in opposing summary judgment-that the trial judge was biased against her and failed to consider Arredondo's evidence, and defense counsel did not produce discovery. On the first point, Arredondo appears to complain about the judge's characterization of her opposition in ruling on the summary judgment motion, asserting the judge was biased and personally hostile toward her. But it is the judge's duty to make a ruling when a party makes a motion. A ruling against a party, even if erroneous, does not indicate either bias against, or personal hostility toward, that party. (Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 674; Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 12191220 [not "every statement a judge makes to explain his or her reasons for ruling against a party constitutes evidence of judicial bias"]; Ryan v. Welte (1948) 87 Cal.App.2d 888, 893 [a trial judge's wrong opinion on the law of the case is not evidence of bias or prejudice].) Arredondo has not shown bias or prejudice. (Ryan, at p. 893.) While Arredondo asserts the trial court failed to consider her evidence, the trial court's ruling shows that it certainly did. Arredondo does not point to what evidence the trial court did not consider.
On the second point, she argues that defense counsel willfully suppressed evidence by not producing comparative discovery and other evidence during discovery. Arredondo, however, fails to recognize there are rules and procedures applied in summary judgment proceedings that every party must follow, and the focus of this appeal is on whether the trial court erred in ruling on the summary judgment motion when it did, not on the merits of any discovery dispute.
In applying these rules and procedures, we conclude that, although Arredondo mentioned defense counsel's alleged failure to produce certain documents during discovery in her opposition to Saint Agnes's summary judgment motion, because she did not explain why the missing discovery was required or request a continuance of the hearing so she could obtain the discovery, Arredondo forfeited appellate review of her argument. That is because unless the party opposing the summary judgment motion makes a sufficient showing that discovery is required and requests a continuance under section 437c, subdivision (h), the existence of outstanding discovery is not a basis on which to deny or continue a summary judgment motion. (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1056-1057; accord, Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1224 [by failing to request a continuance of the hearing on the summary judgment motion to conduct additional discovery, appellants "waived any objection to the trial court having ruled on the summary judgment motion before it decided their motion to compel"]; see generally Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 818, fn. 36 [legal theory raised for first time on appeal following grant of summary judgment motion not considered].)
Section 437c, subdivision (h) provides: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due. Section 437c, subdivision (i) provides, in pertinent part: "If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication."
Here, Arredondo failed to request additional time to obtain outstanding discovery responses (and file a motion, if necessary), in her opposition to Saint Agnes's summary judgment motion. Thus, she forfeited appellate review of this issue.
In sum, Arredondo has not satisfied her appellate burden of showing the trial court erred in granting Saint Agnes's summary judgment motion. Saint Agnes met its burden of showing Arredondo's harassment, discrimination, and retaliation claims were meritless because Arredondo was not harassed due to her disability, and Saint Agnes had a legitimate, nondiscriminatory reason for demoting Arredondo. Arredondo has not shown that there is a triable issue of fact on these points. Accordingly, we affirm the trial court's decision.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
Our Supreme Court has held that "[a]n appellate court may not award costs or fees on appeal to a prevailing FEHA defendant without first determining that the plaintiff's action was frivolous, unreasonable, or groundless when brought, or that the plaintiff continued to litigate after it clearly became so." (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 950-951.) Saint Agnes, the prevailing FEHA defendant, has not asked us to determine that Arredondo's action was at any point frivolous, unreasonable, or groundless.
WE CONCUR: FRANSON, Acting P. J., MEEHAN, J.