Opinion
A156380
06-29-2020
MARILYN M. SANTIAGO, Plaintiff and Appellant, v. DIGNITY HEALTH, INC., et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CGC-16-553176)
Plaintiff Marilyn M. Santiago sued defendants, Dignity Health, Inc. and Saint Francis Memorial Hospital (collectively, defendants), alleging claims under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for failure to provide reasonable accommodation and disability and age discrimination, as well as a claim for breach of an implied contract. The trial court granted summary judgment in favor of defendants. We affirm.
Undesignated statutory references are to the Government Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff began her employment with defendants in 1980 as a licensed vocational nurse at Saint Francis Memorial Hospital in San Francisco (hospital). Plaintiff became a registered nurse in 1984 and eventually elevated to the "Staff Nurse II" position in the hospital's medical, surgical, and orthopedic unit.
While working at the hospital, plaintiff was a member of the California Nurses Association, which had a collective bargaining agreement (CBA) with defendants. The CBA notes that "[t]he Employer, Dignity Health d/b/a Saint Francis Memorial Hospital . . . , recognizes the California Nurses Association as the exclusive collective bargaining representative for Registered Nurses employed by the Employer in the bargaining agreement." The CBA also provides that "[t]he Nurses covered by this Agreement are all Registered Staff Nurses performing nursing services."
As of 2014, plaintiff typically worked three days a week, for approximately a total of 40 hours every two weeks. According to plaintiff, her job duties, as a Staff Nurse II, included providing bedside nursing care, administering medications, performing blood transfusions, and caring for patients before and after surgery. Plaintiff described bedside nursing care as "[v]ery important," comprising 90 to 100 percent of her job. Plaintiff also explained that bedside nursing care was "very physical." It consisted of assisting patients in and out of bed and to and from the bathroom; bathing patients; changing patients' dressing; feeding patients; cleaning patients' rooms; and observing patients' medical, physical, and emotional states. These tasks sometimes required plaintiff to lift patients, while bearing their body weight.
In March 2014, plaintiff sustained neck and shoulder injuries, when she and her husband were involved in an automobile accident. As a result of the accident, plaintiff took some time off and returned to work in late April 2014.
In September 2014, plaintiff requested a leave of absence under the Family Medical Leave Act, to care for her husband who had been diagnosed with cancer approximately one year prior. Plaintiff's request was denied because she had not worked the requisite number of hours to be eligible under the Family Medical Leave Act.
According to her time stamps, plaintiff stopped reporting to work after October 26, 2014. Plaintiff tried to work one day in March 2015 but was instructed to go home, after telling her supervisor that she was in too much pain to work. Plaintiff was also suffering from depression after her husband died in January 2015. Plaintiff was not on an approved leave of absence.
Defendants scheduled a meeting between plaintiff, her manager, Shannon Griffin, and a human resources department representative for April 7, 2015. Plaintiff did not attend. On that same day, Griffin e-mailed plaintiff: "We do need to find a way forward in terms of your status, and I have come up with a few options which I think will be helpful in terms of deciding the next steps." Griffin explained those options were the following: "Return to work, with orientation"; "Reduce status to per diem"; or "Resignation." Griffin also cautioned plaintiff that if she did not reply before April 13, "we will take this as a resignation."
An April 24, 2015 letter from Bea Greenwood, labor relations manager, to plaintiff stated that on April 13, plaintiff left a voicemail message for Griffin, who in turn left plaintiff a message on April 14. Greenwood wrote: "To date, neither the Human Resources department nor Ms. Griffin, Manager of Surgical Acute, have been able to speak with you nor have you expressed you [sic] desire to stay employed at Saint Francis Memorial Hospital. [¶] If you do not respond by April 28, 2015 by 10am, I will assume that you are no longer interested in retaining your employment with Saint Francis Memorial Hospital and your employment will be terminated on April 28, 2015." (Italics, underscoring, and boldface omitted.)
On April 28, 2015, plaintiff's attorney of record, Edward Suman, emailed defendants, explaining that plaintiff was still "interested in retaining her employment" and "[b]ecause she recently lost her husband of many years on top of her medical conditions, she has been uncertain as to when she can return to work." Plaintiff's attorney stated plaintiff was receiving treatment for her injuries and "will be able to predict when she can return" upon completing physical evaluations. In the meantime, plaintiff requested a three-month leave of absence.
On the following day, Greenwood instructed plaintiff's counsel to contact, and apply for a leave of absence through, Matrix Absence Management, Inc. (Matrix), a third party administrator whom defendants hired to handle intake and management of leaves of absence for defendants' employees. Greenwood then wrote: "If [plaintiff] does not contact [Matrix] and produce the supporting documentation by May 4, 2015 we will consider her absent without leave."
Plaintiff subsequently called Matrix. She was informed that a staff member named "Amanda" was assigned to plaintiff's case but was unavailable at the time. Plaintiff was transferred to Amanda's line and left a voicemail message. Plaintiff also sent Amanda a text message on May 1, stating she wished to apply for disability leave. Nevertheless, plaintiff did not apply for a leave of absence.
According to Greenwood, when an employee applies for leave through Matrix, she receives an electronic message confirming submission of the application. As of May 6, 2015, Greenwood did not receive a notification confirming that plaintiff either had contacted Matrix or had applied for a leave of absence. Defendants did not otherwise follow up with plaintiff or Matrix.
On May 6, 2015, Greenwood wrote to plaintiff stating she failed to formally submit a request for leave of absence or contact human resources and her department of the hospital. Greenwood also informed plaintiff, "Since you have not applied for a leave of absence or made contact to be placed on the work schedule, we are terminating your employment effective May 6, 2015." (Italics and boldface omitted.) Plaintiff was 63 years old when she was terminated.
Plaintiff's attorney e-mailed Greenwood on May 14, 2015, explaining that plaintiff had informed Greenwood of her wish to remain employed and attempted to contact Matrix, but received no reply. The e-mail requested that defendants restore plaintiff as an employee and place her on disability leave until a date to be determined in August of 2015.
Meanwhile, plaintiff continued to receive treatment for her injuries. In May 2016, plaintiff's physician sent a letter to defendants stating: "Patient was on disability since 3/2014 for rotator cuff injury and cervical radiculopathy. She was unable to perform her typical nursing duties due to the physical nature of her job as an inpatient registered nurse. She may have been able to return to work if she was offered a position to perform administrative duties only." Plaintiff also testified that when she was terminated, she was still unsure as to when she would be able to return to work.
Plaintiff brought this action against defendants, alleging she was discriminated against based on her age and disability and wrongfully denied a reasonable accommodation of her disability, in violation of FEHA. Plaintiff also asserted a cause of action for breach of an implied contract. Plaintiff sought to recover punitive damages as to her FEHA claims.
In May 2018, defendants moved for summary judgment, or, alternatively, summary adjudication as to each cause of action. Plaintiff opposed the motion, and defendants replied to the opposition.
The trial court granted defendants' motion. It found that plaintiff's first cause of action for failure to provide a reasonable accommodation "lacks merit because she has not identified any reasonable accommodation that would enable her to perform her job as a nurse." In addition, the court ruled that plaintiff's claims for age and disability discrimination fail as a matter of law because defendants presented legitimate nondiscriminatory reasons for terminating plaintiff and plaintiff failed to present evidence demonstrating that defendants' stated reasons were a pretext for discrimination. Finally, the court determined plaintiff's fourth cause of action for breach of an implied contract was preempted by federal law. The court entered judgment in favor of defendants. Plaintiff appealed.
DISCUSSION
Plaintiff challenges the grant of summary judgment, asserting the evidence raised triable issues of material fact as to her causes of action for failure to accommodate, disability discrimination, age discrimination, and breach of an implied contract. We address these causes of action in order below.
I. Standard of Review
A "motion for summary judgment shall be granted if all the papers submitted show 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." (Code Civ. Proc., § 437c, subd. (c).) A triable issue of material fact exists "if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.) "The moving party bears the burden of showing the court that the plaintiff 'has not established, and cannot reasonably expect to establish, a prima facie case . . . .' " (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue exists. (Code Civ. Proc., § 437c, subd. (p)(2).)
We review an order granting summary judgment de novo. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) "We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Ibid.)
Further, "[i]n order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record." (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287 (City of Santa Maria).) Plaintiff has failed to support many of her points with cogent argument or legal authority. Although we may "disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt" (id. at p. 287), we exercise our discretion to consider arguments for which we can discern a legal or factual basis in the briefs.
II. The Trial Court Properly Granted Summary Judgment
A. Disability Discrimination and Reasonable Accommodation Causes of Action
FEHA establishes separate causes of action for a range of " ' "unlawful employment practices" ' " relating to physical disabilities, including two at issue in the present appeal: disability discrimination and failure to accommodate. (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 970 (Lui), citing Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 961, 982, fn. 12.) Specifically, section 12940, subdivision (a) (section 12940(a)) declares it an unlawful employment practice for an employer "because of the . . . physical disability . . . of any person . . . to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment." Section 12940, subdivision (m) (section 12940(m)) declares it an unlawful employment practice for an employer "to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee."
We first address plaintiff's cause of action for failure to provide reasonable accommodation.
1. Failure to Accommodate
"A reasonable accommodation is a modification or adjustment to the work environment that enables the employee to perform the essential functions of the job he or she holds or desires. [Citation.]" (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373 (Nealy).) Under section 12940(m), "FEHA requires employers to make reasonable accommodation for the known disability of an employee unless doing so would produce undue hardship to the employer's operation." (Nealy, at p. 373.) "The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability." (Ibid.) "[T]he plaintiff bears the burden of proving that he or she had the 'ability to perform the essential functions of a job with accommodation.' [Citation.]" (Lui, supra, 211 Cal.App.4th at p. 971.)
The second element is at issue in this appeal. Defendants argue it was undisputed that plaintiff could not perform the essential function of her job as a nurse, with or without reasonable accommodation. Plaintiff contends there is a triable issue of fact as to the essential functions of the position. She also asserts there is a triable issue on whether a reasonable accommodation that would have allowed her to perform the essential functions of the job included the elimination of "the requirement that she lift patients." We hold the defendants' undisputed evidence entitled it to summary judgment on this cause of action.
a. Essential Functions
" 'Essential functions' means the fundamental job duties of the employment position the individual with a disability holds or desires. 'Essential functions' does not include the marginal functions of the position." (§ 12926, subd. (f).) " 'Marginal functions' of an employment position are those that, if not performed, would not eliminate the need for the job or that could be readily performed by another employee or that could be performed in an alternative way." (Cal. Code Regs., tit. 2, § 11065, subd. (e)(3).) "A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: [¶] (A) . . . [T]he reason the position exists is to perform that function. [¶] (B) . . . [T]he limited number of employees available among whom the performance of that job function can be distributed. [¶] [And] (C) . . . [T]he incumbent in the position is hired based on expertise or the ability to perform a particular [highly specialized] function." (§ 12926, subd. (f)(1); Cal. Code Regs., tit. 2, § 11065, subd. (e)(1).)
"Evidence of whether a particular function is essential includes . . . : (A) The employer's judgment as to which functions are essential. [¶] . . . [¶] (C) The amount of time spent on the job performing the function. [¶] (D) The consequences of not requiring the incumbent to perform the function. [¶] (E) The terms of a collective bargaining agreement." (§ 12926, subd. (f)(2); Cal. Code Regs., tit. 2, § 11065, subd. (e)(2).)
Defendants maintain, and plaintiff concedes, that lifting was an essential function of plaintiff's job. Plaintiff testified that 90 to 100 percent of her job involved bedside nursing care. Bedside nursing care consisted of assisting patients in and out of bed and to and from the bathroom; bathing patients; changing patients' dressing; feeding patients; cleaning patients' rooms; and observing patients' medical, physical, emotional and spiritual statuses. Plaintiff noted these tasks sometimes involved lifting the patients, while bearing their body weight. She further explained that performing these tasks was "very physical" and "[v]ery important." Thus, the trial court correctly concluded that lifting was an essential function of plaintiff's job.
Plaintiff's reliance on Business and Professions Code section 2725 and a provision in the CBA does not compel a different conclusion. Business and Professions Code section 2725, subdivision (b) defines the "practice of nursing" as "those functions, including basic health care, that help people cope with difficulties in daily living that are associated with their actual or potential health or illness problems or the treatment thereof, and that require a substantial amount of scientific knowledge or technical skill . . . ." Plaintiff argues that because "[n]one of the functions mentioned in 2725 (b), included heavy lifting[,] [t]here is thus a material disputed issue of fact as to whether plaintiff as a registered nurse could have performed the essential duties of a registered nurse without heavy lifting, including the lifting of patients." This contention is unavailing. Business and Professions Code section 2725, subdivision (b) is not an exhaustive list of all the functions of a practicing nurse. Plaintiff fails to explain how the lifting of patients does not fall within any of these general definitions of direct patient care. Indeed, plaintiff testified that lifting patients was part of her essential duties.
Also unpersuasive is plaintiff's citation to the CBA. Plaintiff states that, although "she didn't dispute that St Francis Memorial Hospital required the nurses to lift patients, . . . she disputed that lifting patients should have been required in view of the negative language in the Collective Bargaining Agreement towards the lifting of patients by nurses." She quotes the paragraph under "Safe Patient Handling" which provides that "[r]easonable efforts will be made to eliminate the need for patient care providers to manually lift patients. Reasonable efforts may include the integration of mechanical lifts, education and appropriate training for staff involved in handling of patients. Appropriately trained and designated staff is to be available to assist with patient handling." (All caps omitted.) While the CBA does encourage nurses to engage in practices that would eliminate situations requiring them to manually lift patients, it does not prohibit lifting. Thus, the CBA does not present a triable issue of fact as to whether lifting patients was an essential job function.
Given our conclusion, we need not consider defendants' reference to plaintiff's job description describing lifting patients as one of the duties, evidence which defendants submitted for the first time with their reply to the opposition to the summary judgment motion.
Accordingly, the trial court correctly concluded that lifting patients was an essential function of plaintiff's job.
b. Ability to Perform Essential Functions
It is undisputed that plaintiff could not perform her essential job functions at the time she was terminated. Plaintiff testified she could not lift patients and that she was not able to return to work until late 2016, approximately one year after her termination. Her physician also confirmed that "[s]he was unable to perform her typical nursing duties due to the physical nature of her job as an inpatient registered nurse." We now discuss whether plaintiff has identified a reasonable accommodation that would have allowed her to perform her essential functions.
c. Potential Reasonable Accommodations
Reasonable accommodations may include, among other things, job restructuring, part-time or modified work schedules, alteration of when and/or how an essential function is performed, and a paid or unpaid leave for treatment and recovery. (§ 12926, subd. (p)(2); Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(E), (F), (G), (M), (O).) "Although the question of reasonable accommodation is ordinarily a question of fact [citation], when the undisputed evidence leads to only one conclusion as to the reasonableness of the accommodation sought, summary judgment is proper. [Citation]." (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1227, fn. 11.)
Plaintiff insists that defendants could have restricted her old position so that she did not have to perform heavy lifting which might have been possible by assigning her to handle only administrative duties, such as administering medications, reading charts, assessing patients' conditions, and educating patients and their families concerning patients' health problems. Plaintiff, however, did not request this accommodation until a year after she was terminated. Defendants were thus not obligated to provide such an accommodation when it was never requested. (See Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 [a failure to accommodate cause of action first requires that the employee request the accommodation].)
In any event, FEHA does not obligate an employer to provide an accommodation that would effectively eliminate performance of the essential functions of a job. (See Nealy, supra, 234 Cal.App.4th at p. 375; see Lui, supra, 211 Cal.App.4th at p. 985.) "The examples of reasonable accommodations in the relevant statutes and regulations include reallocating nonessential functions or modifying how or when an employee performs an essential function, but not eliminating essential functions altogether." (Nealy, at p. 375; § 12926, subd. (p)(2); Cal. Code Regs., tit. 2, § 11065, subd. (p)(2).) As explained in Nealy, "permitting elimination would be at odds with the definition of the employee's prima facie case. The employee's case consists, in part, of showing he or she can perform the essential functions of the job with accommodation, not that an essential function can be eliminated altogether to suit his or her restrictions." (Nealy, at p. 375.) By permitting plaintiff to perform only administrative functions, employers would have had to excuse her from performing her essential lifting functions as a nurse. FEHA did not obligate defendants to accommodate plaintiff in such a manner. (Ibid.)
We also find that a leave of absence for plaintiff, whose ability to return to work was uncertain at the time of her termination, was not a reasonable accommodation. "A finite leave of absence may be a reasonable accommodation to allow an employee time to recover, but FEHA does not require the employer to provide an indefinite leave of absence to await possible future vacancies." (Nealy, supra, 74 Cal.App.4th at pp. 377-378; see Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226-227 [" 'Reasonable accommodation does not require the employer to wait indefinitely for an employee's medical condition to be corrected' "].) Here, the undisputed evidence shows that plaintiff could not prove that she would be able to perform her duties at the end of a leave of absence. At the time she was terminated, plaintiff remained unsure as to when she would return to work. Thus, because a leave of absence would have been indefinite, it was not a potential reasonable accommodation. Plaintiff has therefore failed to identify a reasonable accommodation available to her.
In sum, we conclude that the trial court correctly granted summary judgment as to plaintiff's failure to accommodate cause of action. We turn now to the disability discrimination cause of action.
2. Disability Discrimination
"Section 12940(a) prohibits employers from discharging an employee because of a physical disability." (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra, 166 Cal.App.4th at p. 962.) In order to prevail on a discriminatory discharge claim under section 12940(a), an employee bears the burden of showing that "he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability. [Citation.] Once the employee establishes his or her prima facie case, 'the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action.' [Citation.] The employee may still defeat the employer's showing with evidence that the stated reason is pretextual, the employer acted with discriminatory animus, or other evidence permitting a reasonable trier of fact to conclude the employer intentionally discriminated. [Citation.]" (Nealy, supra, 234 Cal.App.4th at p. 378.)
Defendants assert plaintiff cannot satisfy the second element of the prima facie case and did not present any evidence demonstrating defendants' stated reasons for termination were pretext for discrimination. Plaintiff apparently only focuses on the question of pretext, asserting that evidence of defendants' knowledge of her disability is sufficient to establish discriminatory intent. We agree with defendants.
a. Prima Facie Showing
The second element of the prima facie case for disability discrimination that an employee is a "qualified individual" within the meaning of FEHA "is identical to that required for a cause of action for failure to reasonably accommodate. That is, a qualified individual is someone who is able to perform the essential functions of his or her job, with or without reasonable accommodation. [Citation.]" (Nealy, supra, 234 Cal.App.4th at p. 378.) We have already discussed defendants' evidence that plaintiff could not perform the essential functions of her job with or without reasonable accommodation, and we need not reiterate that discussion here. It follows that defendants have shown plaintiff cannot establish one or more elements of her disability discrimination claim.
b. Defendants' Proffered Reasons for Termination
Even assuming plaintiff has made a prima facie showing of disability discrimination, defendants presented facially legitimate reasons for terminating plaintiff. It is undisputed that plaintiff failed to report to work for several months after late October 2014, without formally obtaining a leave of absence. According to defendants, plaintiffs' months-long absence violated defendants' standards of conduct, which authorizes defendants to discharge an employee following three consecutive days of unexcused absence. We find the unexcused absences are a facially valid reason to terminate plaintiff. (See E.E.O.C. v. Con-Way Freight, Inc. (8th Cir. 2010) 622 F.3d 933, 936-937 [given company policy of automatically disqualifying applicants with theft-related convictions, employer had legitimate reason not to hire job applicant with two shoplifting convictions].)
The question, then, is whether plaintiff presented sufficient evidence that defendants' proffered reasons were an illegitimate pretext for firing her.
c. Pretext
Plaintiff's attempt to demonstrate pretext fails. Citing Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 592, plaintiff argues that in order to prove her disability discrimination claim: "All that is required is that the plaintiff show that the 'employees who decided to discharge [her] knew of[her] disability." (Sic.) Plaintiff's reliance on Soria is misplaced. At issue in the disability discrimination claim in Soria was whether the employer was aware of the plaintiff's medical condition. (Id. at pp. 592, 593.) By contrast, here, it is undisputed that defendants knew about plaintiff's disability.
Plaintiff then asserts that Matrix's failure to respond to plaintiff's messages regarding her application for disability leave "is imputed to [defendants] . . . ." Assuming an agency relationship between Matrix and defendants existed, plaintiff makes no effort to cogently explain how defendants' failure to follow up with Matrix or plaintiff concerning her intentions for a leave of absence was motivated by discriminatory animus towards her because of her disability. Thus, although we may treat such conclusory argument as waived, we nonetheless exercise our discretion to consider it. (See City of Santa Maria, supra, 211 Cal.App.4th at p. 287.)
We find that a discriminatory intent cannot be reasonably inferred from defendants' inaction in the days leading up to plaintiff's termination. As the trial court explained, "While [plaintiff] shows that she attempted to apply for leave and did not do so because of a misunderstanding or miscommunication, the law is settled that a non-discriminatory error in judgment by an employer is not discrimination." " 'The [employee] cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. [Citations.]' " (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)
Accordingly, we affirm the grant of summary judgment as to plaintiff's second cause of action for disability discrimination.
B. Age Discrimination Cause of Action
"[A] prima facie case[] of age discrimination arises when the employee shows (1) at the time of the adverse action he or she was 40 years of age or older, (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job and (4) the employee was replaced in his position by a significantly younger person." (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1003.)
Plaintiff focuses on the third element, asserting that she worked at the hospital for 34 years in good standing, without any negative performance assessments or discipline taken against her. The parties do not dispute plaintiff's years of service with the hospital and positive performance assessments in the past. As explained above, however, the undisputed evidence shows that plaintiff's performance at the time of termination was nonexistent, let alone satisfactory. Thus, she failed to make a prima facie showing for age discrimination.
Moreover, as with her disability discrimination claim, plaintiff presents no evidence demonstrating defendants' stated reasons for termination were pretext for age discrimination. Plaintiff's argument on appeal on this issue consists of one sentence unsupported by legal analysis or citation to legal authority and is therefore waived. (See City of Santa Maria, supra, 211 Cal.App.4th at p. 287.) She claims "that when she was younger, she was given modified work for a work-related injury." Even if we were to consider this contention, we find it lacks merit. Plaintiff suggests she was a victim of age discrimination because defendants had offered plaintiff a work modification when she sustained a work-related injury sometime after 2012, but did not similarly accommodate her when she was injured from the car accident in 2014. This argument, however, incorrectly assumes she was entitled to an accommodation that eliminated her essential job functions. We have concluded above that FEHA did not obligate defendants to accommodate plaintiff in that regard.
Plaintiff also asserts in her reply brief that evidence that 12 or 15 other employees were offered retirement packages after she was terminated raises a triable issue of fact as to her age discrimination claim. We do not consider this argument because plaintiff raises it for the first time in reply without having made any showing of good cause for failing to raise the argument in her opening brief. (See Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10 [" ' "points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before" ' "].)
The trial court correctly granted summary judgment as to plaintiff's age discrimination cause of action.
C. Breach of Implied Contract Cause of Action
Plaintiff challenges the trial court's finding that her fourth cause of action for breach of an implied contract is preempted by federal law. Again, plaintiff offers hardly any legal analysis to support this assertion. Nonetheless, having independently reviewed the record and relevant law, we agree with the trial court that plaintiff's breach of implied contract claim is preempted.
Under section 301 of the Labor Management Relations Act (29 U.S.C. § 185), federal law preempts state law pertaining to the interpretation of collective bargaining agreements. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 762.) " '[A]lthough state courts have concurrent jurisdiction . . . , the substantive law governing union-management labor relations is exclusively federal, and the interpretation of collective bargaining agreements is exclusively a matter for arbitration under federal law." (Sciborski v. Pacific Bell Directory (2012) 205 Cal.App.4th 1152, 1163.) "Section 301 preemption applies only to 'state laws purporting to determine "questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement." ' [Citation.]" (Id. at p. 1163.) Thus, "[a] state law claim is preempted if a court must interpret a disputed provision of the collective bargaining agreement to determine whether the plaintiff's state law claim has merit. [Citations.]" (Ibid.)
Section 301(a) provides: "Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties." (29 U.S.C. § 185(a).)
As applied here, plaintiff's job position was unquestionably covered by the CBA. The CBA between defendants and the California Nurses Association, of which plaintiff was a member, states, "The Nurses covered by this Agreement are all Registered Staff Nurses performing nursing services." Further, plaintiff's breach of implied contract claim seeks to enforce the CBA. Plaintiff alleges that "[d]efendants implicitly agreed not to terminate plaintiff provided that she competently perform her duties" and "breached the implied agreement not to terminate plaintiff except for good cause." The resolution of these claims is directly dependent upon analysis of the terms of the CBA. The CBA permits defendants to "discharge and discipline" employees "for just cause." (All caps omitted.) A court would have to analyze the meaning of "just cause" to determine whether plaintiff's employment was terminated without good cause. Plaintiff's contract claim, therefore, is one to enforce the CBA and is controlled by section 301 of the Labor Management Relations Act. (See Hill v. The Boeing Co. (C.D.Cal. 2011) 765 F.Supp.2d 1208, 1213-1214 [allegation that employer breached contract by terminating employee " 'without good cause' " required interpretation of term " 'justifiable reason' " in the collective bargaining agreement and thus was preempted].) In light of our conclusion, we do not address plaintiff's additional arguments.
DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Jackson, J. WE CONCUR: /s/_________
Fujisaki, Acting P. J. /s/_________
Petrou, J.