Opinion
H042030
10-15-2018
BEVERLY AVERY, Plaintiff and Appellant, v. COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA, Defendant and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on October 15, 2018 be modified as follows:
On page 13, <Avery felt she was capable of performing her job and that she was performing it correctly as of the date she was discharged. She agreed that she had not asked for a disability or medical accommodation before October 2011, and that she would have asked for an accommodation had she needed one.> is added before the sentence beginning "But Avery had suffered a stroke in May 2012...".
On page 14, "Avery's written narratives of the events leading to her discharge," and footnote 3 are deleted.
There is no change in the judgment.
The petition for rehearing is denied. Dated: __________
/s/_________
Elia, Acting P. J.
/s/_________
Mihara. J.
/s/_________
Grover, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. M116329)
Community Hospital of the Monterey Peninsula terminated Beverly Avery for poor performance following a disciplinary probation and suspension. Avery sued the hospital for wrongful termination, alleging disability discrimination and related claims, and the hospital prevailed on a motion for summary judgment. Avery argues that the trial court erred by excluding evidence, failing to construe evidence in her favor, and finding no material facts in dispute. She argues that the court misapplied the law related to her claim of failure to accommodate, and incorrectly analyzed her retaliation claim. For the reasons stated here, we will uphold the judgment as to the causes of action for retaliation, age discrimination, and defamation. We will reverse the judgment on the remaining causes of action because we conclude that triable issues exist as to whether Avery's disability was a substantial factor motivating her termination and whether the hospital failed to accommodate her disability.
I. BACKGROUND
Defendant Hospital hired Avery in 1993 as a computer operator. Avery was promoted to Systems Analyst I and continued in that role until she was terminated in October 2011. Avery was responsible for maintaining certain computer applications, preparing reports, and troubleshooting computer problems for specific departments. Hospital used a software program called HelpSTAR which generated a ticket when a user requested an analyst's help. The analyst's progress and time spent responding to the user request could be viewed in the HelpSTAR program.
Kathie Sage became the Applications Support Supervisor of the hospital's Health Information Technology Department (IT Department) in February 2010, managing 14 analysts including Avery. Sage assessed Avery's workload as the lightest among her peers, and it appeared to Sage that Avery was performing her job well. Avery would sometimes miss work to take her husband, who was in poor health, to medical appointments. Avery kept Sage informed of those appointments, and consistently assured Sage she would make up the time. In one email Avery explained that she would rather "work over to make up the time" than take the whole day off to avoid being "short for the pay period."
Avery took two weeks leave in the late summer of 2010 to care for her husband. During that time, a department manager complained to Sage that Avery had failed to make progress on a HelpSTAR request made five months earlier. Sage reviewed Avery's workload and discovered a similar lack of progress on other outstanding projects. When Avery returned from her leave in early September, Sage spoke with her about her performance. Sage acknowledged that Avery would be coming to work late for an additional four weeks because of her husband's medical appointments, which Sage was agreeable to on a short-term basis. But she expressed concern for Avery's performance, and she conveyed to Avery the need to "buckle[] down and focus[] so that we wouldn't have to move this in to the disciplinary cycle." Avery continued to advise Sage when she was taking her husband to appointments.
Sage noted on Avery's annual evaluation in October 2010 that Avery "has been dealing with some personal issues requiring some weird hours but is managing to get her work done." On November 9, Sage emailed Avery: "I'm a little worried about your tickets. They appear to be aging and with no significant progress being made. Anything I can help with?" In late November, Avery explained that she and her husband had multiple appointments, and it was difficult to schedule them during non-work hours. In December Sage gave Avery information on the Employee Assistance Program, and Sage met with Human Resources Employee Relations Specialist Arthur McKenzie to discuss Avery's performance, which continued to lag in the new year.
In February 2011, Sage reminded Avery that her work needed to be completed in a timely manner and began tracking Avery's performance. It had become apparent to Sage that Avery lacked the skill set necessary to perform her job successfully, and Avery attended supplemental training courses. Avery's performance continued to lag in March and April 2011, and in May Sage issued a written warning placing Avery on a 90-day performance improvement plan. Sage met with Avery weekly to help Avery prioritize and complete her work. Avery's attendance improved but her overall job performance continued to be poor. In June, Avery was placed on 90 days' probation and was warned of possible further disciplinary action, including termination, if her performance did not improve.
Sage documented continuing performance deficiencies, and at the end of the probation period recommended to her own supervisor (IT Department Director, Charlene Webber-Schuss) that Avery be suspended, with termination to follow. McKenzie supported the suspension, but Webber-Schuss disagreed. She felt Avery would improve with a little more time, and directed Sage to extend Avery's probation for an additional 90 days. Sage met with Avery on September 27, 2011 about the extension, and Avery became angry during that meeting. Avery acknowledged she had been under stress during her probation, but in her view she was performing satisfactorily. Sage related Avery's hostile reaction (including the use of profanity, which Avery denies) to Webber-Schuss, who then agreed to the suspension. On Friday September 30, Avery was suspended without pay for one week. The suspension notice stated that Avery had failed to meet performance expectations, hospital policy supported termination for substandard work performance, and Avery would be notified of the results of the hospital's investigation the following Friday, October 7.
On the intervening Monday October 3, a clinical psychologist diagnosed Avery with major depression and chronic post-traumatic stress disorder. The psychologist wrote a letter stating that Avery "needs to be out of work on a disability leave" from October 3, 2011 through January 3, 2012. Avery submitted the letter with a written request for medical leave under the Family and Medical Leave Act (29 U.S.C. § 2601 et seq. (FMLA)) and the California Family Rights Act (Gov. Code, § 12945.2 (CFRA)) to the Employee Wellness Department on October 5, and McKenzie was notified of the request. Avery supported her request with a health care provider certification signed by the psychologist stating that she had a "serious health condition," without disclosing the underlying diagnosis. The certification was received by the Wellness Department on October 7. Unaware of Avery's suspension and ultimate termination, the Wellness Department approved Avery's request on October 10.
FMLA entitles an eligible employee to 12 weeks of leave in a twelve-month period for "a serious health condition." (29 U.S.C. § 2612(a)(1)(D).) CFRA provides up to 12 weeks of concurrent leave for an employee's "serious health condition." (Gov. Code, § 12945.2, subds. (c)(3)(C), (p).)
Sage, Webber-Schuss, McKenzie, and a manager from outside the IT Department (Jodi Schaffer) participated in a Just Culture meeting on Wednesday October 5 to make a recommendation regarding Avery's termination. McKenzie did not inform Sage, Webber-Schuss, or Schaffer of Avery's FMLA/CFRA leave request because of the "circumstances" and "timing" of the request. All agreed that discharge was appropriate. The decision was finalized on October 6 by the hospital's Vice President of Medical Affairs, Dr. Anthony Chavis, who agreed with the Just Culture recommendation (but was unaware of Avery's October 5 FMLA/CFRA leave request). Webber-Schuss scheduled a meeting for the following day to inform Avery of the hospital's decision. Webber-Schuss and Sage first learned of Avery's FMLA/CFRA leave request on October 7 when Avery asked Webber-Schuss to postpone that afternoon's meeting because of her disability status. Avery did not attend the meeting and so was notified of her termination by letter dated October 10.
The hospital's "Just Culture" policy requires the Human Resources Department to convene a panel to "review[] the information and circumstances of the alleged policy violation and make[] a recommendation for appropriate action" before taking any disciplinary action resulting from an employee's probation or suspension.
Avery submitted two grievances to the hospital challenging her termination. The first was denied by Dr. Chavis in a letter dated November 1, and the second by the hospital's chief executive officer on November 14.
II. TRIAL COURT PROCEEDINGS
A. THE OPERATIVE COMPLAINT
Avery filed a complaint against the hospital in February 2012 alleging disability discrimination (Gov. Code, §12940, subd. (a)); first cause of action), failure to accommodate (Gov. Code, § 12940, subd. (m); second cause of action), failure to participate in the interactive process (Gov. Code, § 12940, subd. (n); third cause of action); intentional infliction of emotional distress (fourth cause of action); retaliation under the California Family Rights Act (Gov. Code, § 12945.2, subd. (l)(1); fifth cause of action); discharge in violation of public policy (sixth cause of action); breach of implied contract of continued employment (seventh cause of action); breach of implied covenant of good faith and fair dealing (eighth cause of action); age discrimination (Gov. Code, § 12940, subd. (a); ninth cause of action); and defamation (tenth cause of action). The operative complaint, filed by stipulation after defendant moved for summary judgment, was drafted by new counsel and made no substantive changes to the original complaint.
Critical to her lawsuit, the complaint alleged that Avery "had diabetes and high blood pressure; and was diagnosed with Depression, and Post Traumatic Stress Disorder, which Defendant became aware of while Plaintiff was employed there." The complaint alleged that in April 2011 Sage had suggested to Avery that she was depressed, and urged Avery to see someone in the Employee Wellness Department and to " '[t]ake a few months off to get your head together.' " The complaint continued: "As a result, Plaintiff went to [the wellness department] on May 3, 2011. And one day after her second visit with a therapist from its list, Plaintiff was given the first discipline of any kind in eighteen years, a written warning dated May 24, 2011, as [Sage] began a campaign to terminate Plaintiff."
B. SUMMARY JUDGMENT MOTION
The hospital moved for summary judgment, relying on declarations from its managers (Sage, Webber-Schuss, Schaffer, and Chavis), and Avery's interrogatory responses and deposition testimony to show that it had a legitimate, nondiscriminatory reason for terminating Avery. Avery disputed the vast majority of facts presented by the hospital, and opposed the motion with her own set of undisputed facts. She submitted over 700 pages of discovery produced by the hospital, declarations prepared by her husband and a former systems analyst with whom she had worked, and testimony from the depositions of Avery, Webber-Schuss, McKenzie, Schafer, and Employee Wellness Leave Specialist (Carol Ann Eason). She also submitted testimony from the depositions of Sage and the head of human resources (Joanne Webster) taken in a workers' compensation case Avery had filed against the hospital related to her termination.
After a hearing in which both parties presented argument, the trial court issued a written decision granting the hospital's motion in its entirety. The court concluded the hospital had met its burden of showing that Avery had been lawfully terminated, and that Avery had failed to produce substantial evidence establishing pretext or discriminatory animus as to disability, age, or malice. The trial court found that Avery's post-suspension FMLA/CFRA leave request did not prevent the otherwise justified termination, and her discharge was not in retaliation for making that request.
III. DISCUSSION
Summary judgment is warranted when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) We review an order granting a motion for summary judgment de novo, drawing all reasonable inferences in favor of the nonmoving party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 860.)
A defendant moving for summary judgment has the burden of presenting evidence demonstrating that one or more elements of each cause of action cannot be established or that there is a complete affirmative defense to the action. (Code Civ. Proc., § 437c, subds. (a), (o)(1)-(2), (p)(2).) Once the defendant has met its initial burden, the burden shifts to the plaintiff to produce evidence showing a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).)
A. DISABILITY DISCRIMINATION CAUSE OF ACTION
1. Legal Framework
The California Fair Employment and Housing Act (FEHA) prohibits an employer from discharging an employee "because of [the employee's] physical disability, mental disability, [or] medical condition." (Gov. Code, § 12940, subd. (a).) To prove employment discrimination under FEHA based on a single motive theory, California courts have adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214 (Harris); Guz, supra, 24 Cal.4th at p. 354.) Under the McDonnell Douglas test, "a plaintiff [at trial] has the initial burden to make a prima facie case of discrimination by showing that it is more likely than not that the employer has taken an adverse employment action based on a prohibited criterion. A prima facie case establishes a presumption of discrimination. The employer may rebut the presumption by producing evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer discharges this burden, the presumption of discrimination disappears. The plaintiff must then show that the employer's proffered nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may offer any other evidence of discriminatory motive. The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff." (Harris, at pp. 214-215.)
The California Supreme Court has interpreted the phrase "because of " in Government Code section 12940, subdivision (a) to require a showing that the employer's conduct is "substantially motivated by discrimination." (Harris, supra, 56 Cal.4th at p. 225.) That degree of causation becomes relevant in what are known as mixed motive cases: A plaintiff can establish unlawful discrimination under FEHA by showing "that improper bias was a substantial factor motivating" an adverse employment action in cases presenting both discriminatory and lawful motives for the adverse action where the employer would have made the same decision in the absence of bias. (Ibid.) Noting that the court in Harris "discussed the employer's motivation and the link between the employer's consideration of the plaintiff's physical condition and the adverse employment action without using the terms 'animus,' 'animosity,' or 'ill will,' " the court in Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109 concluded that an employer can violate FEHA by taking an adverse employment action because of an employee's disability without a finding that the employer harbored animosity or ill will against the employee (or the class of persons with the employee's disability). (Id. at p. 128.) "Based on Harris, ... an employer has treated an employee differently 'because of' a disability when the disability is a substantial motivating reason for the employer's decision to subject the employee to an adverse employment action." (Ibid.)
A defendant may move for summary judgment in FEHA cases by satisfying the second step of the McDonnell Douglas test: "In meeting its initial burden the employer need not rely upon the premise that the plaintiff cannot demonstrate a prima facie case if the employer can set forth admissible evidence of its reasons, unrelated to unlawful discrimination, for the adverse employment action." (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003, citing Guz, supra, 24 Cal.4th at p. 357.) As the moving party, the employer has the initial burden to show that the adverse employment action was based on legitimate, nondiscriminatory factors. (Guz, at p. 357.) Legitimate reasons for the employment action are reasons "facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination." (Id. at p. 358, italics in original.)
If the employer makes a showing by competent and admissible evidence of nondiscriminatory reasons for an adverse employment action, the plaintiff has the burden to show a triable issue that the adverse employment decision was made on a prohibited discriminatory basis. (Guz, supra, 24 Cal.4th at p. 360.) "It is not sufficient for an employee to make a bare prima facie showing or to simply deny the credibility of the employer's witnesses or to speculate as to discriminatory motive." (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 862.) The plaintiff must produce evidence "supporting a rational inference that intentional discrimination, on grounds prohibited by [FEHA], was the true cause of the employer's actions." (Guz, at p. 361, italics in original.)
In mixed motive cases where pretext cannot be established because the adverse employment action is based in part on legitimate nondiscriminatory grounds, a plaintiff can avoid summary judgment by offering sufficient evidence to establish a triable issue of material fact as to whether discrimination was a substantial motivating reason for the adverse employment action. (Husman v. Toyota Motor Credit Corporation (2017) 12 Cal.App.5th 1168, 1186 (Husman).) A causal link between the employer's consideration of a protected characteristic and the adverse employment action must be shown. (Ibid., citing Harris, supra, 56 Cal.4th at pp. 215, 232.) "If triable issues of material fact exist whether discrimination was a substantial motivating reason for the employer's adverse employment action, even if the employer's professed legitimate reason has not been disputed, the FEHA claim is not properly resolved on summary judgment." (Husman, at p. 1186.)
2. The hospital met its initial burden
The hospital moved for summary judgment arguing that it had a legitimate, nondiscriminatory motive for terminating Avery, and it met its burden by showing with competent admissible evidence that Avery had been discharged for poor performance. Sage's declaration chronicled Avery's performance beginning in early 2010 when she became Avery's supervisor, detailing performance deficiencies which led to Avery's discipline, suspension, and termination. The declaration was supported by exhibits including documents prepared by Sage tracking Avery's work performance and time detail, HelpSTAR statistics comparing the number of inquiries resolved by Avery and her peers, Avery's disciplinary notices, the performance improvement plan, and meeting agendas and monthly check-in reports prepared by Avery. The hospital also produced excerpts from Avery's deposition in which Avery admitted that Sage was an honest person who put "a lot of effort into trying to help [her] do [her] job," and that Sage wanted Avery to succeed in her job. The burden thus shifted to Avery to show either pretext or that her discharge was substantially motivated by discrimination.
3. Avery failed to show pretext
Avery argues that she established a triable issue as to pretext, citing what she describes as "the highly suspect timing of the termination decision and McKenzie's disputed participation in the decision." We understand Avery to be arguing that pretext should be inferred from the fact that the decision to terminate her was made immediately following her October 5 request for FMLA/CFRA leave, and by the fact that McKenzie, who was aware of that request, denied participating in the termination decision. But Avery was suspended for one week beginning September 30 in order for the hospital to investigate and decide whether she should be terminated. It is undisputed that the hospital acted on October 5 and 6 as planned, and was prepared to notify Avery of its decision on October 7. Given the hospital's stated objective to make a decision in that one-week timeframe, the fact that the decision was made contemporaneously with Avery's FMLA/CFRA request would not lead a reasonable jury to infer pretext.
Avery argues that the hospital's deviation from its attendance, accommodation, CFRA, and Just Culture policies shows pretext. But the alleged deviations do not support such an inference. Avery argues that "if McKenzie failed to inform Webber-Schuss of [her] disability and leave request, [the hospital] deviated from their own accommodation policy." But McKenzie's withholding that information does not diminish the hospital's evidence that Avery was not performing satisfactorily. Similarly, even if Avery's termination deviated from a hospital policy shielding employees from discharge while on FMLA/CFRA leave, Avery has failed to show a relationship between the deviation and the documentation of her work performance.
Avery argues that the trial court unduly favored the hospital's evidence concerning her performance, including the means by which her performance was evaluated and the termination decision was reached. But rather than improperly weighing evidence, the trial court was evaluating whether the evidence as a whole was sufficient to permit a rational inference that the hospital's reason for termination was pretextual. (See Guz, supra, 24 Cal.4th at pp. 357, 361.)
On de novo review, we reach the same conclusion as trial court regarding pretext. Considering all the evidence before the trial court, Avery has failed to show that a reasonable factfinder could rationally dismiss the hospital's nondiscriminatory reason for her discharge—poor performance—as not credible. (Serri, supra, 226 Cal.App.4th at p. 863.) Accordingly, Avery failed to establish a triable dispute as to pretext.
4. Avery established a triable controversy on whether disability was a substantial motivating factor for her discharge
When pretext cannot be shown (as here) because the adverse employment decision is based at least in part on a legitimate nondiscriminatory ground, a plaintiff may avoid summary judgment by offering evidence of a triable controversy regarding whether disability was a substantial factor motivating the adverse decision. (Husman, supra, 12 Cal.App.5th at p. 1186.) Although Avery did not argue mixed motive in the trial court, she did provide evidence which, viewed in a light most favorable to her as the nonmoving party, establishes a triable issue as to whether the hospital's conduct was substantially motivated by disability discrimination. (Id. at p. 1188.)
The hospital does not dispute that Avery suffered from depression, and the performance and time trackers prepared by Sage show Sage may have been aware of mental health issues impacting Avery's ability to perform. The performance tracker notes that on February 22, 2011 Avery told Sage she had "a multitude of personal issues and was doing the best that she could," but Sage believed Avery could do better because "the Bev that I met when I arrived in the department was performing at a much higher level than what I was seeing now." Both documents note Sage addressing Avery on May 2, 2011 about possible health reasons for her deficient performance: "I told her that if this was a continuation of the personal problems or health related problems that she should contact Darlene [in Wellness]. I gave her an Employee Assistance Program brochure." Sage's time tracker also comments on a May 5, 2011 email from Avery regarding an appointment with a therapist: "I had told her many times that divulging her medical condition(s) to me was not necessary. She works in healthcare and is familiar with protected PH."
The evidence also shows that Webber-Schuss was concerned that Avery's deficient performance could be attributed to a disability, and she related that concern to Sage. In a July 29, 2011 email, Webber-Schuss asked Sage whether she had any recent discussions with Avery "related to a possible disability," and that "it may be a good idea to recommend (again) that she meet with Wellness." Sage responded: "I've not used the 'd' word with [Avery] but we've had many conversations about why she isn't able to get her work done. ... She is really frustrated but has not brought up physical reasons for not getting her work done. She has a ton of personal problems. ... She may be distracted but I didn't pry." The hospital also submitted Avery's verified response to an interrogatory in which she stated that on April 12, 2011 Sage told her that she seemed depressed and needed to see someone at Employee Wellness and take a few months off to "get [her] head together." A jury could infer from the totality of the evidence that Sage either knew Avery was depressed or regarded Avery as being depressed (Gov. Code, § 12926, subd. (j)(4)), and that Sage also attributed Avery's poor performance, at least in part, to that depression.
The hospital relies heavily on Avery's August 2013 deposition to defeat any showing of discrimination. Avery stated in her deposition that she never felt Sage had treated her worse than anyone else, or discriminated or tried to discriminate against her for any reason, and she never thought Sage had been "out to get" her. But Avery had suffered a stroke in May 2012, which affected her short and long term memory, and resulted in her inability to recall many details of her job performance at her deposition. We view Avery's deposition testimony in the context of the entire record—including the undisputed evidence of her stroke, Avery's written narratives of the events leading to her discharge, Sage's tracking notes, and Avery's verified interrogatory response prepared after her deposition in which she recalled an April 2011 conversation with Sage about her depression. Viewing this record in a light favorable to Avery, as we must, we find she has offered sufficient evidence to proceed with her discrimination claim on the theory that, despite the hospital's legitimate reason for letting her go, her disability was a substantial motivating reason for her termination. B. CAUSES OF ACTION BASED ON BREACH OF CONTRACT, WRONGFUL TERMINATION, AND INFLICTION OF EMOTIONAL DISTRESS
Before her stroke, Avery wrote a response to Dr. Chavis's November 1, 2011 letter which she submitted with her second grievance, and she wrote a detailed rebuttal to Sage's performance tracker in anticipation of litigation. Avery stated in her grievance that Sage had learned of her depression and post-traumatic stress disorder in March 2010, that Sage urged Avery to see someone about her depression in April 2011, that Avery followed Sage's advice and met with an Employee Wellness representative followed by two therapy sessions, and that Sage knew about those appointments. Rebutting Sage's performance tracker, Avery stated she had informed Sage in March 2011 that she "was having some mental problems due to stress" caused by an increased workload and "[t]his was the first time [Sage] was told of my mental disability." She stated in the rebuttal that she had informed Sage on September 29, 2011 that her probation period had adversely affected her health, and she had increased her blood pressure and anti-depressant medications as a result of the added stress. Although those documents are hearsay, they may be admissible at trial as prior consistent statements to rehabilitate Avery should she be impeached with her deposition testimony. (Evid. Code, § 1236.)
The trial court granted summary judgment on Avery's causes of action for breach of an implied contract of continued employment, breach of the covenant of good faith and fair dealing, wrongful termination in violation of public policy, and intentional infliction of emotional distress based on its conclusion that Avery's discharge was lawful. The hospital does not dispute the existence of an implied contract of continued employment, but argues that the claims should fail because there was no violation of FEHA or CFRA and Avery was discharged for legitimate reasons. Because a triable issue exists as to whether Avery's discharge was lawful, we will reverse the summary judgment on these causes of action.
C. CAUSES OF ACTION FOR FAILURE TO ACCOMMODATE AND FAILURE TO PARTICIPATE IN THE INTERACTIVE PROCESS
Under FEHA, an employer is required to reasonably accommodate an employee's known physical or mental disability. (Gov. Code, § 12940, subd. (m)(1).) FEHA also requires an employer "to engage in a timely, good faith, interactive process" in response to an employee's request for accommodation "to determine effective reasonable accommodations, if any." (Gov. Code, § 12940, subd. (n).) In granting summary judgment on the causes of action for failure to accommodate and failure to participate in the interactive process, the trial court found that Avery's October 5 FMLA/CFRA leave request was a request for accommodation under FEHA, but the hospital's failure to provide an accommodation or engage in a process to determine a reasonable accommodation was lawful because the hospital had no duty to accommodate a FMLA/CFRA leave request made during a suspension for poor performance resulting in a lawful discharge. We will reverse the summary judgment on these causes of action because, as we have explained, a triable controversy exists as to whether the hospital's termination decision was lawful.
Summary judgment is also not appropriate on these causes of action due to triable issues regarding the decision makers' purported ignorance of Avery's FMLA/CFRA leave request at the time the termination decision was made. Avery produced evidence showing that the Just Culture panel formulated its recommendation on October 5, after McKenzie had been notified of Avery's leave request. There is a factual dispute as to whether McKenzie participated in the termination decision. The trial court cites McKenzie's deposition testimony as conclusively establishing that he did not participate in the decision. But the hospital's personnel manual describes the Just Culture review panel as including a Human Resources representative, and the policy calls for the panel to make a recommendation to the Director of Human Resources and Administration regarding appropriate action. Consistent with that policy, the other Just Culture panel members (Sage, Webber-Schuss, and Schaffer) each described the decision-making process as a collective one, and none singled out McKenzie as having a passive role on the panel.
The evidence also shows that Sage had been consulting with McKenzie about Avery since the previous year. Sage's time tracker shows a November 2010 email to McKenzie relating that Avery "was not paying attention to the warnings re her time away from work or working with Wellness to explore her options." In June 2011, Sage emailed McKenzie regarding a "conversation with [Avery] about looking for another position." In July 2011 Sage emailed Webber-Schuss to report she had spoken with McKenzie about suspending Avery. Sage also consulted with McKenzie about the decision to extend Avery's probation. On September 23 Sage requested a meeting with McKenzie because Webber-Schuss wanted to extend Avery's probation, and on September 28 Sage emailed Webber-Schuss that McKenzie wanted "to know why we're extending probation." The email continued, "This is not the 'norm.' [McKenzie's] correct. ... Would you like to talk with me about this before I meet with [him]?" On October 4, McKenzie wrote his supervisor that Avery had been suspended the previous Friday and "[i]t appears that we will be terminating her." A jury could infer from ongoing communications and consultation with McKenzie that he played a role in the decision to terminate Avery knowing that she had effectively requested a disability accommodation under FEHA. D. CAUSES OF ACTION FOR AGE DISCRIMINATION, RETALIATION, AND DEFAMATION
1. Age Discrimination
Avery has failed to meet her burden to show that she was discriminated against because of her age. She has produced no evidence showing a causal connection between her discharge and her age (Guz, supra, 24 Cal.4th at p. 375 [a general dispute concerning job performance is an insufficient basis upon which to infer age discrimination]), nor has she presented argument on appeal directed at that claim.
2. CFRA Retaliation
Avery pleaded a retaliation cause of action under CFRA based on the timing of her termination in relation to her October 5 FMLA/CFRA leave request. Avery has failed to produce evidence showing that she was terminated because of that leave request. Even drawing all inferences in Avery's favor, the evidence shows that termination would have resulted regardless of the request.
Avery argues that the hospital violated CFRA by failing to advise her of her rights under the act when she was missing work in 2010 to care for her husband, and the trial court overlooked those violations when granting judgment on the retaliation claim. Assuming Avery's cause of action for retaliation under CFRA encompassed a failure to advise allegation, the hospital is still entitled to judgment as a matter of law because CFRA does not require an employer to personally advise an employee of her rights. The hospital is under a duty to advise its employees of their rights under CFRA by posting notices "on its premises, in conspicuous places where employees are employed" (Cal. Code Regs., tit. 2, § 11095, subd. (a)), and Avery has produced no evidence showing that the hospital failed to comply with the posting requirement.
3. Defamation
a. Absolute privilege
Avery's defamation cause of action alleged generally that the hospital had "published and written" false allegations in connection with her termination, and Avery identified Dr. Chavis's November 1 letter as the defamatory communication in a verified interrogatory response. But by filing a formal grievance with the hospital, Avery "agree[d] to an investigation with knowledge of the contemplated publication of findings." (5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 694, p. 954.) Therefore, the letter was subject to an absolute privilege under the doctrine of consent. (Royer v. Steinberg (1979) 90 Cal.App.3d 490, 498 [consent has been classified as a form of absolute privilege].)
Avery argues that the doctrine of consent should not apply because the grievance was a natural and foreseeable consequence of the hospital's actions, citing McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787. But that case addressed foreseeable republication by the plaintiff, not whether the plaintiff had consented to the initial publication. (Id. at p. 793.) The McKinney court reversed the dismissal of a discharged employee's defamation causes of action that were premised on the employee's own republication of the alleged defamatory statements. The appellate court reasoned that the plaintiff was under a strong compulsion to disclose the statements in a job search and the third-party disclosure was reasonably foreseeable to the former employer. (Id. at p. 798.) Here, the November 1 letter was published only to Avery and internally to the hospital's Director of Human Resources. There was no republication to a third-party by Avery or the hospital.
b. Statutory privilege
The letter is also statutorily privileged. A communication is privileged under the Civil Code if it is made "without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information." (Civ. Code, § 47, subd. (c).) In his capacity as Vice President of Medical Affairs, Dr. Chavis wrote the November 1 letter in response to Avery's employment grievance, making Dr. Chavis and Avery interested persons under the statute. The letter was copied only to Joanne Webster, also an interested person in her capacity as the hospital's Director of Human Resources.
Avery argues that she presented evidence establishing a triable issue as to malice—including evidence that the hospital failed to investigate how her husband's health conditions could have contributed to her alleged performance deficiency; that Sage fabricated Avery's use of profanity; that Sage provided Avery with an informal accommodation in 2010 instead of alerting Webber-Schuss or the Human Resources Department that caring for her husband was causing her job performance to suffer; that Sage disciplined Avery for tardiness even though Avery was an exempt employee; and that Sage did not issue a verbal warning to Avery in 2010. None of the evidence cited by Avery, disputed or otherwise, would lead a rational jury to find that Dr. Chavis acted with malice in responding to Avery's grievance. (Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 275-276 [malice requires a culpable mental state, which may be shown by evidence of motive and failure to adhere to professional standards].)
The parties dispute whether the defamation cause of action encompassed the allegation that Sage falsely communicated to Webber-Schuss or other hospital managers that Avery had used profanity in a meeting with Sage. Regardless, Avery has failed to show that Sage's communication could be found to have been made with malice. Malice cannot be inferred from the communication (Civ. Code, § 48), and the culpable mental state is refuted by the Bullock declaration (submitted by Avery in opposition to summary judgment) and by Avery's own deposition testimony. Bullock, who had worked with Avery, explained that it was actually she herself who had used profanity when speaking with Sage during the same time period, and that Sage had often confused Bullock and Avery because they looked and dressed alike. Avery confirmed in her deposition that she thought Sage was confused and not intentionally lying about who had used profanity.
E. EVIDENTIARY RULINGS
Avery argues that the trial court erred by sustaining the hospital's objections to deposition transcripts taken from a workers' compensation case she filed in connection with her discharge. Sage and Human Resource Director Joanne Webster were deposed in that case, and the trial court sustained the hospital's hearsay objection to those depositions in the summary judgment proceeding. Avery argues that the deposition testimony is admissible as a party admission under Evidence Code section 1220, and an authorized admission under Evidence Code section 1222. The hospital counters that the deposition testimony is inadmissible former testimony under Evidence Code section 1290, subdivision (c), which includes "[a] deposition taken in compliance with the law in another action," and section 1291, subdivision (a), which, to overcome a hearsay objection, requires a foundational showing of the declarant's unavailability.
We grant Avery's October 8, 2015 request for judicial notice of the Sage and Webster deposition notices in the Workers' Compensation Appeals Board proceeding. --------
It is unnecessary for us to address Avery's asserted evidentiary error because, having reviewed the deposition excerpts, we conclude that none of the testimony creates a triable issue related to Avery's age discrimination, retaliation, or defamation claims. Avery has thus failed to show prejudice from the trial court's evidentiary rulings. Nor do we find prejudice from the trial court's discretionary consideration of exhibits submitted in the first instance with the hospital's reply brief, which Avery also challenges, as none of those exhibits informs our dispositions on her age discrimination, retaliation, or defamation causes of action.
IV. DISPOSITION
The judgment is reversed. The trial court is directed to enter a new order granting summary adjudication as to the fifth (retaliation), ninth (age discrimination), and tenth (defamation) causes of action and denying summary adjudication as to the remaining causes of action. The parties shall bear their own costs on appeal.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Elia, Acting P. J. /s/_________ Mihara, J.