Opinion
B321794
12-28-2023
TAMBLYN JOHNSON, Plaintiff and Appellant, v. PASADENA HOSPITAL ASSOCIATION, LTD., Defendant and Respondent.
Stiller Law Firm, Ari J. Stiller; Marlis Park, Young K. Park and Tara Hattendorf for Plaintiff and Appellant. Littler Mendelson, Christopher L. Dengler and Donna M. Leung for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BC720461 Christopher K. Lui, Judge. Reversed.
Stiller Law Firm, Ari J. Stiller; Marlis Park, Young K. Park and Tara Hattendorf for Plaintiff and Appellant.
Littler Mendelson, Christopher L. Dengler and Donna M. Leung for Defendant and Respondent.
BENDIX, J.
Plaintiff Tamblyn Johnson appeals from a grant of summary judgment in favor of her former employer, defendant and respondent Pasadena Hospital Association, LTD., doing business as Huntington Hospital (Huntington). Johnson sued Huntington for retaliation and wrongful discharge, alleging she was terminated for reporting that orthopedic technicians were performing tasks outside the scope of their certifications. Huntington maintained it fired Johnson because she failed to pass a certification exam within 90 days, a condition to which she agreed when hired.
When reviewing a grant of summary judgment, we construe the evidence in the light most favorable to the losing party, and resolve all doubts in that party's favor. That standard is determinative here. Although Huntington submitted extensive evidence supporting its position that Johnson was terminated for failing to obtain her certification by the agreed-upon deadline, Johnson submitted evidence supporting an inference that the deadline was flexible, and that she had been told she could take the exam after the 90-day deadline so long as she had a test date scheduled, which she did. Johnson's evidence is sufficient to raise triable issues of material fact as to whether Huntington's stated reason for firing her was pretextual, thus defeating summary judgment. We further conclude Huntington has not met its burden to obtain summary adjudication on the issue of punitive damages.
Accordingly, we reverse.
FACTUAL BACKGROUND
Consistent with the standard of review of an appeal from a grant of summary judgment, we present this factual summary in the light most favorable to Johnson. (See Dameron Hospital Assn. v. AAA Northern California, Nevada &Utah Ins. Exchange (2022) 77 Cal.App.5th 971, 982.) We note some of Huntington's contrary evidence, although we do not summarize that evidence comprehensively.
1. Huntington hires Johnson
Huntington is a hospital in Pasadena. Huntington hired Johnson on January 8, 2018 as a "Nursing Professional Development Specialist, Perioperative," otherwise known as a "Perioperative Nurse Educator." According to the job description, this position focused on identifying problems and learning needs for perioperative nurses, bringing those issues to the attention of decision-makers, and participating in developing changes to resolve the identified problems and needs.
Perioperative nurses care for patients before, during, and after surgery.
A listed job requirement for the perioperative nurse educator position was "CNOR" certification, a credential for perioperative nurses. To obtain this credential, an individual must pass an examination on patient safety and best practices in a perioperative setting.
Johnson did not have CNOR certification at the time of hire. Huntington therefore imposed as a condition of employment that Johnson obtain CNOR certification within 90 days of her date of hire, i.e., by April 8, 2018. Johnson signed the document memorializing that condition and other conditions of employment on December 5, 2017, about a month before her start date of January 8, 2018. This was the first time Huntington had hired a perioperative nurse educator who did not already have a CNOR certification.
Johnson, like all new hires at Huntington, also was required to serve a 90-day introductory period per a written policy. The stated purpose of the introductory period was to "give[ ] the manager an opportunity to evaluate the employee's performance, skill level and competency to ensure the employee can and will meet the needs of the position." Huntington reserved the right to extend the introductory period up to an additional 45 days. The policy further stated that "[e]ither the Hospital or the employee can terminate the employment relationship at any time during or after the introductory period without advance notice."
2. Johnson identifies issues with orthopedic technicians performing tasks beyond the scope of their certifications
At some point in or around March 2018, two Huntington employees reported concerns to Johnson that orthopedic technicians were performing tasks during surgeries that were outside the scope of their certifications. Johnson shared the concerns with her supervisor, Lynette Dahlman, on or about March 20, 2018. Dahlman e-mailed Johnson, stating, "Thank you for keeping us in the loop with education needs in the OR[. ¶] I met with Gloria [Sanchez-Rico, chief nursing officer] today and conveyed my concerns. [¶] She has asked for a top ten list of the highest risk items and the rationale (what standard or regulatory item is not being followed)[.] [¶] If you could get that to me asap it would be helpful as we escalate the concerns."
At Huntington's instruction, Johnson conducted an internal investigation and on March 23, 2018, reported that orthopedic technicians indeed might be performing tasks outside the scope of their certifications. After receipt of this report, Huntington held meetings with Johnson and "key members of the surgical services department" to discuss the issue, and asked Johnson to continue her investigation, research the applicable credentialing requirements, and prepare a compliance report. Johnson did so, and upon review of her report Huntington decided to require its orthopedic technicians to obtain additional credentials so they could perform certain tasks. Johnson does not dispute that she was "applauded for her work in relation to the report."
In an April 3, 2018 e-mail that included Johnson as a recipient, Sanchez-Rico stated a decision had been reached to inform the orthopedic surgeons by letter that orthopedic technicians must no longer perform tasks beyond the scope of their credentials. Sanchez-Rico stated the letter "will explain the findings, describe what a non-certified tech can and can not do, what a certified tech can and can not do, explain that we are willing to support certification of the techs and the rationale behind [ceasing] the practice. I am expecting that this will not go over well but we must move forward."
Huntington then distributed a letter to the orthopedic technicians informing them of the policy change, and met with the technicians to review the changes to their practice. All of this occurred within 13 days of Johnson's first reporting the results of her internal investigation.
On April 4, 2018, Huntington received a complaint from the Joint Commission, an entity with the authority to revoke Huntington's accreditation and impose fines. The complaint stated, "Uncertified orthopedic techs are working far beyond the law and scope of practice cutting bone, drilling screws and setting fractures without a physician. This issue was taken up to the OR director and the CNE and even after that there was nothing done to prevent [Dr. Todd Dietrick, a Huntington surgeon] from using ortho techs to assist in surgery and work beyond their scope of practice like drilling a screw while the MD held the bone in place. Staff are fearful of saying anything to leadership because of retaliation from Rubina [Atakhanian] and the director [Lyudmila Weiss]." (Italics omitted.)
In her opening brief, Johnson identifies Atakhanian as the director of surgical services, and Weiss as the director of perioperative services. Their titles are not material to our resolution of this appeal.
Huntington responded to the complaint in writing, describing the steps it had taken beginning on March 23, 2018, including the decision to require orthopedic technicians to acquire proper certification before performing certain tasks, a decision conveyed to the orthopedic technicians on April 5, 2018. Huntington further explained that a registered nurse was assigned to Dietrick to assist him during surgery in place of an orthopedic technician until Dietrick could hire a physician's assistant or his technician became certified.
During her deposition as a person most knowledgeable, Sanchez-Rico was asked why she wrote on April 3, 2018 that the restrictions on the uncertified orthopedic technicians "will not go over well." She responded, "I did expect . . . for [the orthopedic surgeons] not to be happy because it was really going to change how they practice in the OR. The orthopedic technicians were providing a service to them that assisted them and facilitated their surgeries and that had to change, so I did expect that there was going to be some type of discontent." To her "surprise," however, "there was not." Although in the past physicians had raised concerns with her about changes in practice, in this case "that did not happen."
Sanchez-Rico was deposed again a week later in her individual capacity. She reiterated that when she wrote "this will not go over well," she meant the surgeons would be upset because they could no longer use the orthopedic technicians to assist them in surgery. Asked how the surgeons reacted to the concerns raised by Johnson, Sanchez-Rico said she did not recall.
Dahlman, testifying about Sanchez-Rico's e-mail stating "this will not go over well," said, "I don't specifically have knowledge of what that meant other than our surgeons like to do what they like to do, and they don't like to be told what to do."
In deposition, Atakhanian testified she was not aware of the surgeons being angry about the change in policy, and believed the surgeons knew the "hospital was trying their best to serve them, especially Orthopedic. That's . . . one of the busiest service line[s] of Huntington; so they didn't want to make them unhappy."
Dietrick, the surgeon mentioned in the Joint Commission complaint, testified in deposition that his technicians' activities during surgeries "was the same before, during, and after the accusation." He said when he was told there was a complaint that technicians were operating outside the scope of their credentials, he was also told "it wouldn't affect anything, specifically as it related to me." He did not recall any changes to his practice as a result of Johnson's report, other than him taking on some tasks that the technicians were concerned they no longer were allowed to perform. When he discussed the technician issue with other surgeons, "no one seemed to think that it would matter too much other than the orthopedic technicians had to take a test to get certified." As for the technicians themselves, Dietrick thought requiring additional certification "was an inconvenience for many of them, but ultimately I convinced them all that they should go through with their certification so that they could be more marketable."
All of the orthopedic technicians subsequently obtained their new credentials.
3. Johnson's efforts to take the CNOR exam
In January 2018, the month of her hire, Johnson attempted to apply for the CNOR exam, but "glitches" on the exam provider's website prevented her from logging in to apply.Johnson called the exam provider multiple times and heard a recorded message that the provider was aware of issues with its website. Johnson could not, however, reach a live person to assist her. She was finally able to log in to the exam provider's website on January 31, 2018.
The evidence cited by Johnson does not specify when in January 2018 she attempted to apply for the exam.
On that same day, January 31, 2018, Johnson's supervisor, Dahlman, e-mailed Johnson asking for the scheduled date for her CNOR exam. Johnson replied that she had been unable to log in to the provider's website or reach anyone by phone, but had been able to access the website that morning. She stated she would be scheduling her exam date in February.
Although Johnson now had access to the provider's website, she did not have the money to pay the $395 exam fee until she received her paycheck from Huntington on February 2, 2018. She submitted her application and paid the exam fee on February 5, 2018.
By mid-February 2018, Johnson had yet to hear from the exam provider as to the status of her application. Her voicemails and e-mails to the provider went unanswered. On February 21, 2018, she informed Dahlman of this.
Records subpoenaed by Huntington from the exam provider indicated Johnson's February 5, 2018 registration was cancelled. Johnson denied cancelling the registration or the provider informing her the registration was cancelled. Huntington does not contend it was aware of those records or any purported exam cancellations when Johnson was terminated, and indeed did not acquire them until after Johnson had initiated her lawsuit.
On March 1, Johnson finally reached the exam provider by phone and was told her application was under "audit review." Johnson was told she could expect a response as to her eligibility to take the exam within a week or two, at which point she could schedule the exam. Johnson informed Dahlman and another supervisor, Rodney Chan, of this development.
On March 16, 2018, having heard nothing further on her exam application, Johnson again contacted the exam provider and asked if there was anything she could do to expedite the process. The provider said there was nothing Johnson could do.
On March 20, 2018, the same day Johnson first reported the issue with the orthopedic technicians, Dahlman e-mailed the following to Johnson: "Just a reminder that the CNOR is due to be in place by 4/8/18 per your [conditions of hire]. If that date is not feasible, we need to have something in your file that explains the delay. I wanted to give you a heads[ ] up so it is not a surprise. Let us know if we can facilitate in any way." Johnson replied, informing Dahlman of her March 16 communication with the exam provider, and that she was still waiting for her authorization to test.
On April 6, 2018, two days before the expiration of the 90-day deadline set forth in Johnson's conditions of employment, the exam provider notified Johnson she was scheduled to take the exam on May 5, 2018.
In her deposition, Johnson testified that she called Dahlman "to explain to her what was going on, that I had just got the authorization to test, as well as I sent the e-mail to her concerning that, explaining what the-I guess what was going on within the [exam provider] so that she would know what was going on. [¶] I can't test . . . without an authorization number to test; so that was beyond my control. There was nothing that I could do about that. And she stated that she understood and it shouldn't be a problem."
Leigh Ann Reynolds, who was Johnson's officemate at Huntington, submitted a declaration averring that she overheard Johnson speaking to Dahlman on the phone "about her difficulty getting a CNOR exam scheduled. I heard Johnson talk to Dahlman about how she was not able to get an exam on one particular date, but that she was able to get another date, which fell outside of her probationary period. I heard Dahlman tell Johnson, to the effect of, 'Well, that's okay, as long as you've got your date.' "
According to the evidence cited by Johnson below and on appeal, it does not appear Dahlman herself ever corroborated that she told Johnson on April 6 she did not think it would be a problem to take the CNOR exam after April 8. Dahlman testified in deposition that by the time Johnson informed her on April 6 of the May 5 test date, Dahlman and others already had decided to terminate Johnson for failing to take the exam within 90 days.
4. Johnson's termination
On April 9, 2018, Huntington fired Johnson. The discharge memorandum noted the condition of employment that Johnson obtain her CNOR certification within 90 days of hire, and stated Johnson had "not demonstrated the required performance standards."
Johnson testified in deposition that when she was terminated purportedly for not satisfying the CNOR requirement, she said to Dahlman," 'I thought you said it was not a problem.'" Dahlman, who was crying, said "she didn't think it was a problem. It wasn't supposed to be a problem, or words to that extent." Reynolds averred in her declaration she observed Johnson and Dahlman crying, and "[b]oth appeared to be surprised by the termination."
Dahlman in deposition denied making any such statements to Johnson, although she testified she did cry in front of Johnson. She further testified that she discussed with a human resources employee whether to "extend" Johnson, that is, give her more time to take the CNOR exam, and decided against it, because "we are not going in a good direction where she would be able to get the CNOR within any reasonable time frame."
Johnson asked the human resources representative present at her termination whether she could return once she obtained her CNOR certification. According to Johnson, the representative said no. Dahlman testified to the contrary, stating Johnson was told she could return if she obtained her certification.
Following her termination, Johnson took the CNOR exam as scheduled in May 2018 and failed. She took it again in October 2019 and again failed. As of June 29, 2021, Johnson did not yet have CNOR certification.
PROCEDURAL HISTORY
In September 2018, Johnson sued Huntington for whistleblower retaliation in violation of Labor Code section 1102.5 and Health and Safety Code section 1278.5, and for wrongful termination in violation of public policy.Johnson alleged her termination for purportedly not taking the CNOR exam within 90 days was pretextual, and Huntington actually fired her in retaliation for her reporting the orthopedic technicians performing tasks outside the scope of their certifications. The prayer included a request for punitive damages.
Loretta Cannon was listed as co-plaintiff. She dismissed her claims with prejudice on February 22, 2022.
Huntington moved for summary judgment, arguing Johnson could not establish a causal link between her termination and her report on the orthopedic technicians. Huntington contended Johnson was fired for the legitimate reason that she did not obtain CNOR certification within 90 days, and Johnson had no credible evidence that legitimate reason was pretextual. Huntington further argued there was no evidence of oppression, fraud, or malice justifying punitive damages.
Johnson argued in opposition that her evidence established triable issues, including evidence that her report and the Joint Commission complaint that followed upset the status quo and risked backlash from the surgeons, her termination happened soon after she provided her report, and Huntington gave inconsistent explanations for why it did not extend her probationary period after she secured a CNOR exam date.
The trial court granted the motion. It found Johnson had established a prima facie case for retaliation based on the temporal proximity of her report and her termination, but otherwise had not met her burden to defeat summary judgment.
As to the claim under Labor Code section 1102.5, the trial court found Johnson's failure to pass the CNOR exam in May 2018 or in the 2 4 years since established that she would have been terminated even absent the allegedly protected conduct, and even if Huntington had extended her probationary period. As to the claim under Health and Safety Code section 1278.5, the court summarized Johnson's cited evidence and found it failed to establish that Huntington's stated reason for terminating her, i.e., her failure to obtain a CNOR credential within 90 days, was pretext for a retaliatory motive. The court further found Johnson's claim for wrongful termination in violation of public policy failed for the same reasons as her statutory claims. Finally, the court found Huntington did not meet its burden as to the claim for punitive damages, having not addressed the factors set forth in Civil Code section 3294, but the issue was moot given the court's ruling as to the underlying causes of action.
The trial court entered judgment for Huntington. Johnson timely appealed.
STANDARD OF REVIEW
" 'A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. [Citation.] ....' [Citation.]" (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 90.)" 'We independently review an order granting summary judgment. [Citation.] We determine whether the court's ruling was correct, not its reasons or rationale. [Citation.] "In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment." [Citation.]' [Citation.]" (Scheer v. Regents of University of California (2022) 76 Cal.App.5th 904, 913 (Scheer).) In conducting our de novo review, "[w]e '" 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.'"' [Citation.]" (Taswell v. Regents of University of California (2018) 23 Cal.App.5th 343, 351.)
DISCUSSION
We disagree with the trial court that Johnson has not met her burden to defeat summary judgment on her three causes of action. We agree with the trial court that Huntington has not met its burden to obtain summary adjudication on the issue of punitive damages.
A. Johnson Has Shown Triable Issues as to Her Claim Under Health and Safety Code Section 1278.5
Health and Safety Code section 1278.5 "prohibits retaliation against any employee of a health facility who complains to an employer or government agency about unsafe patient care." (Scheer, supra, 76 Cal.App.5th at p. 916.) A cause of action under this statute is analyzed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Scheer, at pp. 916-917.) Under this framework, "the employee must first establish a prima facie case of unlawful discrimination or retaliation [citation]; next, the employer bears the burden of articulating a legitimate reason for taking the challenged adverse employment action [citation]; and finally, the burden shifts back to the employee to demonstrate that the employer's proffered legitimate reason is a pretext for discrimination or retaliation [citation]." (Id. at p. 910.)
When a health facility discharges an employee within 120 days of that employee reporting a concern about unsafe patient care, Health and Safety Code section 1278.5, subdivision (d)(1) establishes a rebuttable presumption that discharge was retaliatory. (Scheer, supra, 76 Cal.App.5th at p. 916.) As the trial court correctly found, and the parties do not dispute, that presumption applies to Johnson's termination, and establishes a prima facie case of retaliation satisfying the first step of McDonnell Douglas analysis.
Huntington has met its burden at the second step of analysis by offering a legitimate reason for Johnson's termination, namely her failure to meet her condition of employment of obtaining CNOR certification within 90 days of hire.
The burden thus shifts back to Johnson to show that Huntington's stated reason for her termination was in fact pretext to cover Huntington's retaliatory motive. Johnson's proffered evidence raises triable issues of material fact as to this element. Johnson's evidence, if accepted as true, could support an inference that Huntington was flexible on the 90-day deadline so long as Johnson had a test date scheduled before that deadline expired, even if the test date itself was past the deadline. Johnson testified that when she told her supervisor, Dahlman, on April 6, a few days before the deadline, that she had scheduled a test date for May 5, Dahlman "stated that she understood and it shouldn't be a problem." Johnson's officemate Reynolds corroborated this testimony, declaring that she overheard Dahlman tell Johnson it was" 'okay'" that Johnson had scheduled her test "outside of her probationary period"" 'as long as you've got your date.'" Huntington has not argued that Dahlman lacked the authority to give such assurances. Indeed, Johnson's testimony and Reynolds' declaration are consistent with Dahlman's earlier e-mail to Johnson stating that if Johnson could not meet the 90-day deadline, "we need to have something in your file that explains the delay," suggesting the deadline could be extended for good cause. Allowing Johnson to take the exam about a month past the 90-day deadline also is consistent with Huntington's stated policy permitting up to a 45-day extension on the 90-day introductory period.
Johnson also offered evidence that Dahlman was "surprised" by Johnson's termination, tearfully telling Johnson the delay in taking the test "wasn't supposed to be a problem." Also significant was Johnson's testimony that when she asked a human resources representative if she could return once she had passed the exam, the representative said no, further supporting an inference that Johnson's failure to pass the exam within 90 days was not the true reason for her termination.
Dahlman's own testimony supported Johnson's position that Huntington was flexible on the deadline, because Dahlman acknowledged she discussed the possibility of extending the deadline with a human resources employee. Dahlman testified she ultimately decided not to extend the deadline, but the fact that such a conversation took place nonetheless is evidence the deadline was not set in stone.
Huntington in its briefing on appeal does not address the above-described evidence, and therefore offers no argument why this evidence is insufficient to defeat summary judgment. To the extent Huntington has offered its own evidence contradicting Johnson's evidence, that is immaterial on summary judgment. The question is whether Johnson has met her burden to show triable issues of material fact. Her evidence of pretext satisfies that burden.
B. Johnson Has Shown Triable Issues as to Her Claim Under Labor Code Section 1102.5
As an initial matter, Johnson contends Huntington has forfeited certain arguments concerning Labor Code section 1102.5 by failing to assert them in the trial court. Because we conclude Johnson prevails on the merits, we do not reach her forfeiture argument.
As relevant here, Labor Code section 1102.5 provides that an employer may not retaliate against an employee for disclosing information "to a person with authority over the employee . . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation ...." (Lab. Code, § 1102.5, subd. (b).) For purposes of
Huntington's motion for summary judgment, there is no dispute that Johnson's report concerning the orthopedic technicians was a protected disclosure under this statute.
Our Supreme Court has made clear that causes of action under Labor Code section 1102.5 are subject not to the McDonnell Douglas three-step burden-shifting framework, but to a two-step framework set forth in Labor Code section 1102.6. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 707 (Lawson).) Under that framework, "[f]irst, it must be 'demonstrated by a preponderance of the evidence' that the employee's protected whistleblowing was a 'contributing factor' to an adverse employment action. [Citation.] Then, once the employee has made that necessary threshold showing, the employer bears 'the burden of proof to demonstrate by clear and convincing evidence' that the alleged adverse employment action would have occurred 'for legitimate, independent reasons' even if the employee had not engaged in protected whistleblowing activities." (Id. at p. 712, quoting Lab. Code, § 1102.6.)
The key difference between the McDonnell Douglas framework and the Labor Code section 1102.6 framework is that McDonnell Douglas requires proof "that an employer's proffered legitimate reason for taking an adverse action was a pretext for impermissible retaliation," whereas Labor Code section 1102.6 does not require proof of pretext. (Lawson, supra, 12 Cal.5th at pp. 715-716.) Under Labor Code section 1102.6, "[e]ven if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action." (Lawson, at p. 716.) Thus, in a lawsuit under Labor Code section 1102.5, there is "no reason why whistleblower plaintiffs should be required to satisfy the three-part McDonnell Douglas inquiry," which the Supreme Court characterized as an "unnecessary burden . . . inconsistent with the Legislature's evident purpose in enacting [Labor Code] section 1102.6." (Lawson, at p. 716.)
Under these principles, we conclude Johnson has demonstrated triable issues of material fact as to her Labor Code section 1102.6 claim. Unlike Health and Safety Code section 1278.5, Labor Code section 1102.5 does not contain a statutory presumption of retaliation based on temporal proximity between the protected conduct and the adverse employment action. Even absent such a statutory presumption, however, case law has held that "[b]ecause the employee's burden of establishing a prima facie case under McDonnell Douglas is fairly minimal, the temporal proximity between an employee's [protected conduct] and a subsequent termination may satisfy the causation requirement at the first step of the burden-shifting process." (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353 (Arteaga), italics omitted.) If temporal proximity can satisfy the plaintiff's prima facie burden under McDonnell Douglas, we see no reason it cannot similarly satisfy a plaintiff's burden at the first step of the more forgiving Labor Code section 1102.6 framework.
To rely solely on temporal proximity to establish a prima facie case, the proximity must be" 'very close.'" (Zirpel v. Alki David Productions, Inc. (2023) 93 Cal.App.5th 563, 578.) We conclude that Johnson's termination, which took place approximately three weeks after she first raised concerns about the orthopedic technicians, was sufficiently close in time to her protected activity to establish a prima facie case of retaliation under Labor Code section 1102.5. We are informed by the 120-day presumption under Health and Safety Code section 1278.5, subdivision (d)(1), through which the Legislature has established a measure with which to assess whether an employer's actions are in retaliation for an employee raising a patient safety issue. Whether or not the Legislature intended that 120-day measure to apply beyond causes of action specifically brought under the Health and Safety Code, the statutory presumption reflects a broader public policy protecting health care employees who report patient safety concerns. Deeming a three-week period brief enough to support an inference of retaliation is consistent with that policy.
We further conclude Johnson has demonstrated triable issues as to the second step of Lawson analysis. Although neither Labor Code section 1102.6 nor Lawson requires plaintiffs to show pretext under the McDonnell Douglas framework to establish a claim under Labor Code section 1102.5, a plaintiff who can satisfy that higher McDonnell Douglas burden necessarily can also meet the lesser burden under Labor Code section 1102.6. If an employer's stated legitimate reasons for termination are pretextual, then those false reasons cannot establish by clear and convincing evidence that the employer would have terminated the employee absent the protected whistleblower conduct. We already have concluded Johnson's evidence raises triable issues as to pretext under McDonnell Douglas-a fortiori, that same evidence supports an inference satisfying Lawson that Johnson's protected conduct contributed to her termination. Her Labor Code claim survives summary judgment.
In concluding to the contrary, the trial court focused on Johnson's failure ultimately to pass the CNOR exam, which the trial court viewed as evidence that Huntington would have made the decision to fire her regardless of her protected conduct. An employer, however, may not support an adverse employment action with after-acquired evidence-rather, the employer must show that "in the absence of any discrimination," it "would have made the same decision at the time it made its actual decision." (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 224. An "employer cannot make a same-decision showing 'by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision.'" (Ibid.)
Huntington argues temporal proximity cannot support a prima facie case of retaliation in this case because after Johnson reported the orthopedic technician issue, there was an "intervening event" that justified her termination, namely her failure to take and pass the CNOR exam. In support, Huntington cites a federal district court case, Stevens v. County of San Mateo (N.D. Cal., Mar. 7, 2006, No. C 04-02762 SI) 2006 WL 581092. That case is distinguishable on its facts. In Stevens, the court found inadequate evidence of a causal link between protected conduct and an adverse employment action when 1) there was four-month gap between the allegedly protected complaints and the adverse employment action; 2) during those four months, the plaintiff had a physical altercation with a co-worker, which the court deemed "a significant intervening event" justifying the adverse employment action; and 3) the plaintiff offered no evidence that the person who subjected him to the adverse employment action knew about the protected activity. (Id. at pp. *1, *7.) Here, there was at most only a three-week gap between the protected conduct and Johnson's termination, the decisionmakers were well aware of her protected conduct, and Johnson's evidence, taken in the light most favorable to Johnson, shows that just days before her termination, her supervisor reassured her it was fine to take her test after the 90-day deadline.
Huntington cites cases holding that temporal proximity alone is not sufficient to prove retaliation at the third step of McDonnell Douglas, after the employer has offered a nonretaliatory reason for the adverse employment action. (Arteaga, supra, 163 Cal.App.4th at p. 353; Curley v. City of North Las Vegas (9th Cir. 2014) 772 F.3d 629, 634; Strong v. University Healthcare System, L.L.C. (5th Cir. 2007) 482 F.3d 802, 807-808.) That principle has no application here, where Johnson has also offered evidence that Huntington's nonretaliatory explanation was pretextual, thus supporting an inference that her protected conduct contributed to her termination.
C. Johnson Has Shown Triable Issues as to Her Claim for Wrongful Termination In Violation of Public Policy
A cause of action for wrongful termination in violation of public policy is subject to the McDonnell Douglas three-step framework. (Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913, 930.) Huntington raised no arguments in the trial court regarding this cause of action apart from stating the cause of action was based on Johnson's statutory retaliation claims, and therefore fails to the extent her statutory claims fail. Huntington repeats this argument in its appellate briefing. Because we conclude Johnson's statutory claims survive summary judgment, we similarly conclude her wrongful termination claim survives.
D. Huntington Has Not Met its Burden To Obtain Summary Adjudication on the Issue of Punitive Damages
In moving for summary judgment in the trial court, Huntington set forth the relevant general standard for punitive damages-clear and convincing evidence that an officer, director or managing agent of the employer acted with oppression, fraud, or malice, or that such individual ratified the conduct (Civ. Code, § 3294)-and then stated, "There is no such conduct in this case." In its reply brief below, Huntington expanded slightly on this argument, stating that Johnson "has not cited to any record evidence that would establish a viable punitive damages claim," or "identif[ied] any officers, directors or managers of [Huntington] or describe any malicious, fraudulent or oppressive conduct." Huntington's separate statement did not identify any evidence specific to the issue of punitive damages.
The trial court found Huntington had not met its burden for summary adjudication of the punitive damages issue because its "separate statement does not address the punitive damage factors set forth in Civil Code § 3294." Because the trial court had granted summary judgment as to all causes of action, however, it deemed the issue of punitive damages moot.
Punitive damages are no longer moot given our holding that Johnson's three causes of action survive summary judgment. We agree with the trial court that Huntington did not meet its burden on this issue. A defendant moving for summary judgment "must 'present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.' [Citation.]" (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939, 946.) This evidence might include, for example," 'admissions by the plaintiff following extensive discovery to the effect that [she] has discovered nothing.' [Citation.]" (Ibid.) Here, Huntington offered no evidence specific to the issue of punitive damages-rather, it" 'simply point[ed] out'" an absence of evidence on plaintiff's part. (Ibid.) This was insufficient to shift the burden to Johnson to show the existence of triable issues.
DISPOSITION
The judgment is reversed. Tamblyn Johnson is awarded her costs on appeal.
We concur: ROTHSCHILD, P. J. CHANEY, J.