Perez et al v. John Muir Health

Northern District of California, cand-4:2015-cv-01792

ORDER by Judge Haywood S. Gilliam, Jr. DENYING DEFENDANT'S {{70}} MOTION FOR SUMMARY JUDGMENT.

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6 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MARLENE PEREZ, et al., 7 Case No. 15-cv-01792-HSG Plaintiffs, 8 ORDER DENYING DEFENDANT'S v. MOTION FOR SUMMARY JUDGMENT 9 JOHN MUIR HEALTH, et al., Re: Dkt. No. 70 10 Defendants. 11 12 Northern District of California United States District Court 13 Pending before the Court is Defendant John Muir Health's motion for summary judgment. 14 Dkt. No. 70 ("Motion"). For the reasons articulated below, the Motion is DENIED. 15 I. BACKGROUND 16 Defendant John Muir Health ("JMH") employed Plaintiffs Marlene Perez and Rosa 17 Cerisano as nurses on its hospital staff. Dkt. No. 87-5 ("Perez Decl.") ¶ 2; Dkt. No. 87 ("Cerisano 18 Decl.") ¶ 2. After Plaintiffs provided information in a sexual harassment action brought by 19 Plaintiffs' former co-worker, Ms. Charlotte Reed, against a JMH supervisor, Mr. Charles Griffin 20 (the "Reed Action"), Plaintiffs resigned from JMH. Perez Decl. ¶ 12; Cerisano Decl. ¶ 13. 21 On April 21, 2015, Plaintiffs filed the current action against Defendants JMH and John 22 Muir Medical Center, alleging that Defendants unlawfully retaliated against and constructively 23 terminated Plaintiffs for their participation in the Reed Action. Dkt. No. 1 ("Compl."). Plaintiffs 24 allege four claims against Defendants: (1) retaliation in violation of Title VII; (2) retaliation in 25 violation of California's Fair Employment and Housing Act ("FEHA"); (3) constructive discharge 26 in violation of Title VII, FEHA, and common law; and (4) failure to provide a workplace free of 27 discrimination and retaliation. Dkt. No. 60 ("FAC"). Cerisano also brings claims for (5) disability 28 discrimination in violation of the Americans with Disabilities Act ("ADA") and (6) disability 6 1 discrimination in violation of FEHA. Id. 2 II. DISCUSSION 3 In its Motion, JMH contends that the undisputed evidence establishes that JMH did not 4 subject Plaintiffs to intolerable working conditions or adverse employment actions as a matter of 5 law. Mot. at 1. JMH further asserts that Plaintiffs cannot proffer evidence that JMH took any 6 alleged adverse employment actions because of Plaintiffs' participation in protected activity or 7 Cerisano's disability. Id. Accordingly, JMH moves for summary judgment as to all of Plaintiffs' 8 claims or, in the alternative, requests partial summary judgment. Id. 9 A. Evidentiary Objections 10 Both parties object to evidence submitted with the briefing on JMH's Motion. JMH 11 objects to four categories of evidence: (1) portions of Julie O'Brien's declaration; (2) excerpts 12 from Camino Bell's deposition; (3) certain evidence related to the Reed Action; and (4) Michael Northern District of California United States District Court 13 Robbins's declaration. Dkt. No. 89 ("Reply") at 3-4. On June 15, 2016, Plaintiffs filed objections 14 to "new evidence" submitted for the first time with JMH's Reply. Dkt. No. 90. 15 "To survive summary judgment, a party does not necessarily have to produce evidence in a 16 form that would be admissible at trial, as long as the party satisfies the requirements of Federal 17 Rules of Civil Procedure 56." Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001); 18 see also Chartis Specialty Ins. Co. v. Aqua Scis. Engineers, Inc., No. 11-CV-03669-JST, 2013 WL 19 4647288, at *3 (N.D. Cal. Aug. 29, 2013) ("The Court's focus at summary judgment is not on the 20 form of the evidence submitted, but on whether its content would be admissible."). Rule 56(c)(4) 21 provides that "[a]n affidavit or declaration used to support or oppose a motion must be made on 22 personal knowledge, set out facts that would be admissible in evidence, and show that the affiant 23 or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Evidence is 24 relevant if "it has any tendency to make a fact more or less probable than it would be without the 25 evidence" and "the fact is of consequence in determining the action." Fed. R. Evid. 401. 26 For example, "hearsay evidence attached to an affidavit may be considered at summary 27 judgment if the out-of-court declarant could present the evidence through direct, admissible 28 testimony at trial." Chartis Specialty Ins. Co., 2013 WL 4647288, at *3 (N.D. Cal. Aug. 29, 2013) 2 6 1 (citing Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)). However, because 2 "[a]uthentication is a condition precedent to admissibility," "unauthenticated documents cannot be 3 considered in a motion for summary judgment." Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 4 (9th Cir. 2002). Documents can be authenticated by any manner permitted by the Federal Rules of 5 Evidence, not just personal knowledge. Id. at 774. 6 i. O'Brien Declaration 7 JMH objects to paragraphs 8-13, 16-17, and 22-24 of the O'Brien declaration and exhibits 8 1, 5, and 6 attached thereto for lack of foundation, lack of personal knowledge, speculation, 9 hearsay, irrelevance, and lack of authentication. Reply at 3. To the extent that the Court does not 10 rely upon the aforementioned evidence, the Court OVERRULES JMH's objections as moot.1 11 As to the portions of Ms. O'Brien's declaration that the Court considers, the Court finds 12 those portions to be appropriately based on her own experiences and observations. For example, Northern District of California United States District Court 13 Ms. O'Brien testifies "based on [her] observations" and "[b]ased upon [her] 28-year employment 14 at JMH and [her] experience as a supervisor." See Dkt. No. 86-1 ("O'Brien Decl.") ¶¶ 12, 15. 15 Accordingly, the Court OVERRULES JMH's objections for lack of foundation and lack of 16 personal knowledge. 17 Furthermore, Ms. O'Brien does not speculate but offers testimony regarding her own 18 reactions to and interpretations of others' actions. For example, she testifies about what she saw, 19 how actions "appeared to [her]," and what "[she] genuinely believed." See id. ¶¶ 9-10, 12. The 20 Court OVERRULES JMH's objections on the basis of speculation. 21 The Court also holds that the O'Brien declaration meets the low bar for relevancy under 22 Federal Rule of Evidence 401 and OVERRULES JMH's relevance objection. 23 ii. Bell Deposition 24 JMH also objects to excerpts from the Bell deposition on grounds of lack of foundation, 25 1 26 The Court does not need to rely upon the portions of Ms. O'Brien's declaration and exhibits that JMH argues are inadmissible on the basis of hearsay or lack of authentication. Accordingly, the 27 Court will not address those objections, but notes that most if not all of the statements objected to on hearsay grounds either appear to be party admissions or plainly are not offered for the truth of 28 the matter asserted, or both. 3 6 1 lack of personal knowledge, speculation, and hearsay. Reply at 3. Again, to the extent that the 2 Court does not rely upon the portions of the Bell deposition to which JMH objects, the Court 3 OVERRULES JMH's objections as moot. 4 The Court holds that Mr. Bell testified from his personal observations and experience. 5 Furthermore, in the relevant portions of his deposition, Mr. Bell limits his testimony to his 6 personal thoughts and reactions. As such, the Court OVERRULES JMH's objections for 7 speculation, lack of foundation, and lack of personal knowledge. 8 The Court also finds JMH's hearsay objections meritless because "an out-of-court 9 declarant could present the evidence through direct, admissible testimony at trial." See Chartis 10 Specialty Ins. Co., 2013 WL 4647288, at *3 (citing Fraser, 342 F.3d at 1036). Accordingly, the 11 Court OVERRULES JMH's hearsay objections. 12 iii. Evidence from the Reed Action Northern District of California United States District Court 13 JMH objects to the portions of Plaintiffs' opposition brief and the evidence cited therein 14 that reference Michelle Lopes's and Charles Griffin's alleged sexual relationship on the grounds 15 of lack of foundation, lack of personal knowledge, speculation, irrelevance, and hearsay. Reply at 16 3-4. 17 As an initial matter, the Court finds that evidence that Ms. Lopes and Mr. Griffin engaged 18 in a sexual relationship is relevant to Ms. Lopes's potential motivation for her alleged actions. 19 Thus, the Court OVERRULES JMH's relevance objections. 20 JMH's remaining evidentiary objections are not sufficiently specific to enable the Court to 21 properly consider them. JMH objects to entire pages, "so it is not possible for the Court to fairly 22 evaluate the objections." Schaeffer v. Gregory Vill. Partners, 2015 WL 2267813, at *5 (N.D. Cal. 23 May 14, 2015). The Court therefore OVERRULES JMH's vaguely asserted objections to 24 evidence from the Reed Action without prejudice to the assertion of proper objections, made to 25 specific statements, at the time of trial or in connection with a future motion. 26 27 28 4 6 1 iv. Robbins Declaration 2 Finally, JMH objects to the entire Robbins declaration as irrelevant. Reply at 4. The Court 3 does not rely on the Robbins declaration, and thus OVERRULES the objection as moot. 4 v. Evidence Submitted with JMH's Reply Papers 5 On June 15, 2016, Plaintiffs filed objections to evidence allegedly submitted for the first 6 time with JMH's Reply. Dkt. No. 90. 7 JMH submitted its Reply on June 2, 2016, and thus under Civil Local Rule 7-3(d)(1), 8 Plaintiffs' objections to JMH's Reply evidence were due by June 9, 2016. Plaintiffs' objections 9 were filed 6 days after the deadline, and the Court OVERRULES the objections on that basis. 10 B. Legal Standard for Summary Judgment 11 Summary judgment is proper where the pleadings and evidence demonstrate "there is no 12 genuine issue as to any material fact and. . . the movant is entitled to judgment as a matter of Northern District of California United States District Court 13 law." Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material 14 issue of fact is a question a trier of fact must answer to determine the rights of the parties under the 15 applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute 16 is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving 17 party." Id. 18 The moving party bears "the initial responsibility of informing the district court of the 19 basis for its motion." Celotex, 477 U.S. at 323. To satisfy this burden, the moving party must 20 demonstrate that no genuine issue of material fact exists for trial. Id. at 322. To survive a motion 21 for summary judgment, the non-moving party must then show that there are genuine factual issues 22 that can only be resolved by the trier of fact. Reese v. Jefferson Sch. Dist., No. 14J, 208 F.3d 736, 23 738 (9th Cir. 2000). To do so, the non-moving party must present specific facts creating a genuine 24 issue of material fact. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. "A conclusory, self-serving 25 affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine 26 issue of material fact." F.T.C. v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 27 1997), as amended (Apr. 11, 1997). 28 The court must review the record as a whole and draw all reasonable inferences in favor of 5 6 1 the non-moving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). 2 However, unsupported conjecture or conclusory statements are insufficient to defeat summary 3 judgment. Id. Moreover, the court is not required "to scour the record in search of a genuine issue 4 of triable fact," Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citations omitted), but rather 5 may limit its review to the documents submitted for purposes of summary judgment and those 6 parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 7 237 F.3d 1026, 1030 (9th Cir. 2001). 8 In an employment discrimination case, a plaintiff "need produce very little evidence in 9 order to overcome an employer's motion for summary judgment." Chuang v. Univ. of Cal. Davis, 10 Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000); see also Nigro v. Sears, Roebuck & Co., 784 11 F.3d 495, 499 (9th Cir. 2015) (reversing grant of summary judgment for defendant in employment 12 discrimination case and noting that "it should not take much for [a] plaintiff in a discrimination Northern District of California United States District Court 13 case to overcome a summary judgment motion."). "This is because the ultimate question is one 14 that can only be resolved through a searching inquiry—one that is most appropriately conducted 15 by a factfinder, upon a full record." Chuang, 225 F.3d at 1124 (internal quotation marks omitted). 16 The Ninth Circuit has "emphasized the importance of zealously guarding an employee's right to a 17 full trial, since discrimination claims are frequently difficult to prove without a full airing of the 18 evidence and an opportunity to evaluate the credibility of the witnesses." McGinest v. GTE Serv. 19 Corp., 360 F.3d 1103, 1112 (9th Cir. 2004). 20 C. Constructive Discharge 21 Plaintiffs assert constructive discharge claims against Defendants under Title VII, FEHA, 22 and common law. 23 A "constructive discharge in violation of fundamental public policy gives rise to a tort 24 action in favor of the terminated employee." Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 25 1252 (1994). "Constructive discharge occurs when the employer's conduct effectively forces an 26 employee to resign." Id. at 1244; Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 27 1987). In order to prevail on a claim for constructive discharge, a plaintiff must show "that the 28 employer either intentionally created or knowingly permitted working conditions that were so 6 6 1 intolerable or aggravated at the time of the employee's resignation that a reasonable employer 2 would realize that a reasonable person in the employee's position would be compelled to resign." 3 Turner, 7 Cal. 4th at 1251. 4 Constructive discharge requires "adverse working conditions [that are] unusually 5 'aggravated' or amount to a 'continuous pattern.'" Id. at 1247. While a "single isolated instance" 6 of employment discrimination is insufficient to establish constructive termination, "incidents of 7 differential treatment over a period of months or years" can be enough. Watson, 823 F.2d at 361. 8 An "employer must either deliberately create the intolerable working conditions that trigger the 9 resignation or, at a minimum, must know about them and fail to remedy the situation in order to 10 force the employee to resign." Turner, 7 Cal. 4th at 1249-50. "The determination whether 11 conditions were so intolerable and discriminatory as to justify a reasonable employee's decision to 12 resign is normally a factual question left to the trier of fact." Watson, 823 F.2d at 361. Northern District of California United States District Court 13 i. Perez 14 JMH moves for summary judgment as to Perez's constructive termination claim on the 15 basis that grievances related to schedule and work assignments do not amount to intolerable 16 working conditions as a matter of law. Mot. at 11. Further, according to JMH, other nurses were 17 scheduled to work more demanding schedules than Perez, Perez's special scheduling requests 18 were always accommodated, and Perez never suffered any loss in pay or benefits. Id. at 11-13. 19 The Court disagrees that summary judgment is proper on this claim. 20 JMH oversimplifies — or ignores —Perez's evidence suggesting that her scheduling 21 assignments, particularly the four-hour floats, were intolerably stressful and risked her livelihood. 22 Perez testified that she was "scared. . . to lose [her] license every day" because of her daily four- 23 hour float assignments, "increased workloads," assignments to the postpartum unit despite her 24 lack of a neonatal resuscitation license, and unexplained removal from the transport unit. Dkt. No. 25 87-10 ("Perez Dep.") at 19:25-23:1. Indeed, Ms. Lopes, one of Perez's supervisors, testified that 26 four-hour floats increase incomplete documentation; incorrectly administered medications; 27 incomplete hand-off reports; and nurses' feelings of being rushed, fatigued, and stressed. Dkt. No. 28 86-24 ("Lopes Dep.") at 36:17-40:11. If Perez's evidence is credited, a rational trier of fact could 7 6 1 conclude that the cumulative stresses of her work assignments would result in objectively 2 intolerable work conditions. 3 Perez also presents evidence that she was singled out for additional four-hour float shifts. 4 Shanda Dellner, Perez's Float Pool Supervisor, changed Perez's schedule "often." Dkt. No. 86-20 5 ("Bell Dep.") at 60:6-14. These changes included increased float assignments even when it did 6 not make sense to assign Perez to float because she was going to another floor and "other nurses 7 could have floated" instead. Id. at 64:15-65:6. Moreover, while other nurses were relieved of 8 four-hour float assignments after voicing complaints, Perez's complaints went unheeded, and she 9 continued to be assigned four-hour floats out of rotation. Id. at 99:8-101:10, 101:25-105:13. If it 10 is true, as JMH represents, that other nurses who have not resigned were assigned more four-hour 11 floats than Perez, Dkt. No. 70-6, Ex. F, her claim would no doubt be weakened. But at this stage 12 the Court is required to make all reasonable inferences in the plaintiff's favor, and cannot now Northern District of California United States District Court 13 conclude as a matter of law that Perez's assignments were not "so intolerable and discriminatory 14 as to justify a reasonable employee's decision to resign." 15 Though Perez's evidence is far from overwhelming, it is the province of the jury to decide 16 what a reasonable person would do under these circumstances. Applying the well-settled standard 17 for summary judgment, the Court finds that Perez has presented sufficient evidence to raise triable 18 issues of material fact regarding whether her working conditions were so intolerable that a 19 reasonable employee in her position would resign. Accordingly, the Court DENIES JMH's 20 motion for summary judgment on Perez's constructive termination claim. 21 ii. Cerisano 22 JMH moves for summary judgment on Cerisano's constructive termination claim on the 23 grounds that it did not subject her to intolerable working conditions as a matter of law because 24 Cerisano received annual wage increases, never suffered a demotion, and received positive 25 remarks from her supervisors in her performance reviews. Mot. at 15. JMH further asserts that all 26 disciplinary actions issued to Cerisano were due to legitimate violations of JMH's Standards of 27 Professional Relations. Id. at 15-16. Again, the Court disagrees that JMH is entitled to summary 28 judgment on this claim. 8 6 1 Cerisano presents evidence that her JMH supervisors treated her in an intolerably hostile 2 manner with the ultimate goal of terminating her employment. For example, Julie O'Brien, a 3 clinical coordinator in Cerisano's "4-West" group, states in her declaration that JMH supervisors 4 Pam Volberding and Andrea Lovejoy treated Cerisano in an "unfair and hostile" manner. Dkt. 5 No. 86-1 ("O'Brien Decl.") ¶¶ 9-10, 12. Ms. O'Brien felt "coerced" by Ms. Volberding to 6 discipline Cerisano for conduct that Ms. O'Brien felt "was trivial and was not a legitimate basis 7 for discipline." Id. ¶ 15. Furthermore, Ms. O'Brien observed that other JMH staff members were 8 not disciplined for similar issues, and perceived that the JMH supervisors were "instituting steps to 9 get rid of [Cerisano]." Id. ¶¶ 9, 12. Even when Cerisano requested time off in advance of 10 important events such as her wedding, Ms. Lovejoy denied her requests in contravention of JMH 11 policy. Bell Dep. at 43:14-17, 44:1-9, 45:18-46:8; Cerisano Decl. ¶ 12. While each of the 12 aforementioned incidents would be insufficient to constitute constructive termination in isolation, Northern District of California United States District Court 13 a rational factfinder could conclude that "incidents of differential treatment over a period of 14 months or years" resulted in constructive termination. See Watson, 823 F.2d at 361. 15 A jury may or may not find Cerisano's evidence persuasive, but given the vigorously 16 disputed factual record, and making all reasonable inferences in Cerisano's favor, the Court cannot 17 conclude as a matter of law that JMH did not constructively terminate her. The Court DENIES 18 JMH's motion for summary judgment on Cerisano's constructive termination claim. 19 D. Retaliation 20 Next, Plaintiffs assert retaliation claims against Defendants under Title VII and FEHA. 21 To establish a prima facie case of retaliation, an employee must show that (1) she "engaged 22 in a protected activity"; (2) she "was subsequently subjected to an adverse employment action"; 23 and (3) "a causal link exists between the two."2 Dawson v. Entek Int'l, 630 F.3d 928, 936 (9th Cir. 24 2011); Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005). Retaliation claims "must be 25 2 26 The analysis for a retaliation claim is substantively similar under Title VII and FEHA with the following exception: under Title VII, an adverse employment action "is not limited to 27 discriminatory actions that affect the terms and conditions of employment," Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006), whereas under FEHA, the adverse action "must 28 materially affect the terms, conditions, or privileges of employment," Yanowitz, 36 Cal. 4th at 1052. This distinction does not affect the Court's analysis in this Order. 9 6 1 proved according to traditional principles of but-for causation." Univ. of Tex. Sw. Med. Ctr. v. 2 Nassar, 133 S. Ct. 2517, 2533 (2013). If a plaintiff is able to establish a prima facie case, the 3 burden shifts to the defendant to show a "legitimate, non-discriminatory" reason for subjecting the 4 plaintiff to the adverse employment action. Id. If the defendant meets that burden, the plaintiff 5 must raise a genuine issue of material fact as to whether the defendant's legitimate, non- 6 discriminatory reason is pretextual. Id. 7 A plaintiff asserting a discrimination claim can "demonstrate pretext in either of two ways: 8 (1) directly, by showing that unlawful discrimination more likely than not motivated the employer; 9 or (2) indirectly, by showing that the employer's proffered explanation is unworthy of credence 10 because it is internally inconsistent or otherwise not believable." Earl v. Nielsen Media Research, 11 Inc., 658 F.3d 1108, 1112-13 (9th Cir. 2011). Direct evidence—that is, "evidence which, if 12 believed, proves the fact [of discriminatory animus] without inference or presumption"—creates Northern District of California United States District Court 13 "a triable issue as to the actual motivation of the employer. . . even if the evidence is not 14 substantial." Godwin, 150 F.3d at 1221 (internal quotation marks omitted). If direct evidence is 15 not available, "the plaintiff may come forward with circumstantial evidence that tends to show that 16 the employer's proffered motives were not the actual motives because they are inconsistent or 17 otherwise not believable." Id. at 1222. Although the Ninth Circuit has stated that "the 18 circumstantial evidence relied on by the plaintiff must be 'specific' and 'substantial,'" France, 795 19 F.3d at 1175, that standard "is tempered by our observation that a plaintiff's burden to raise a 20 triable issue of pretext is hardly an onerous one." Earl, 658 F.3d at 1113 (internal quotation marks 21 omitted). 22 i. Perez 23 JMH does not dispute that Perez's participation in the Reed Action constitutes "protected 24 activity" for purposes of her retaliation claim. However, JMH urges the Court to grant summary 25 judgment on Perez's retaliation claim because (1) there was no significant change in Perez's 26 workload following her deposition testimony and (2) Perez cannot establish a causal connection 27 between her Reed Action testimony and Ms. Dellner's actions. Mot. at 17-20. The Court 28 disagrees with both arguments. 10 6 a. JMH Has Not Shown that Perez Cannot Establish a Prima Facie Case for 1 Discrimination 2 As noted above, Perez has produced sufficient evidence to raise a triable issue of fact as to 3 whether she was subject to an adverse employment action. For example, Perez has offered 4 evidence that four-hour floats increase errors and cause nurses to feel rushed, fatigued, and 5 stressed. See Lopes Dep. at 36:17-40:11. There is also evidence that Ms. Dellner "often" 6 increased Perez's float assignments without apparent reason. See Bell Dep. at 60:6-14, 64:15- 7 65:6, 99:8-101:10, 101:25-105:13. 8 JMH contends that Perez's schedule "does not show any appreciable change in Perez's 9 workload after she gave her deposition testimony in March 2013." Mot. at 18. In support of its 10 argument, JMH generally cites to over fifty pages of schedules for every nurse at JMH during the 11 relevant time period. See id. (citing Dkt. No. 70-6, Ex. F). The Court is not responsible for 12 wading through JMH's exhibit to piece together its argument: it is JMH's burden to inform the Northern District of California United States District Court 13 Court of the basis of its Motion, and the Court cannot discern whether JMH accurately represents 14 the nature of Perez's schedule given its general citation to a lengthy, inscrutable document. See 15 Celotex, 477 U.S. at 323; Vincent v. Countrywide, No. C13-01569 HRL, 2013 WL 5690153, at *3 16 n. 4 (N.D. Cal. Oct. 16, 2013). Accordingly, the Court finds a triable issue of fact as to whether 17 Perez suffered an adverse employment action. See Yanowitz, 36 Cal. 4th at 1052 ("Although an 18 adverse employment action must materially affect the terms, conditions, or privileges of 19 employment to be actionable, the determination of whether a particular action or course of conduct 20 rises to the level of actionable conduct should take into account the unique circumstances of the 21 affected employee as well as the workplace context of the claim."). 22 Perez has also made a sufficient prima facie showing of a causal link between her 23 participation in the Reed Action and Ms. Dellner's actions. Ms. Dellner provided a declaration in 24 the Reed Action and thus was aware of the Reed Action allegations. See Dkt. No. 86-5. 25 Additionally, Perez has submitted evidence tending to show that Ms. Dellner possessed 26 knowledge of her participation in the Reed Action given that Ms. Dellner coordinated Perez's 27 meeting with Mr. Lester, JMH's attorney in the Reed Action. Dkt. No. 86-31 ("Dellner Dep.") at 28 Exs. 75, 76. Thereafter, according to Perez and Mr. Bell, Ms. Dellner began assigning Perez to 11 6 1 high risk four-hour floats out of rotation in spite of her objections. Perez Decl. ¶¶ 6-11; Bell Dep. 2 at 60:6-14, 64:15-65:6, 99:8-101:10, 101:25-105:13. 3 JMH vigorously asserts that Perez's failure to establish that Ms. Dellner was aware of the 4 nature or contents of Perez's testimony in the Reed Action precludes a prima facie showing of 5 causation. See Mot. at 19. Yet Ninth Circuit law only requires that "the employer was aware that 6 the plaintiff had engaged in the protected activity," Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 7 (9th Cir. 1982), and JMH presents no authority imposing the additional requirement that the 8 employer know the substance of such activity. See Mot. at 17 (collecting cases). As such, the 9 Court finds that Perez has proffered sufficient evidence to meet the low burden of establishing a 10 prima facie case of retaliation. The persuasiveness of the evidence on this score is a question for 11 the jury at trial. 12 b. JMH Has Articulated a Legitimate, Non-Discriminatory Reason for Its Northern District of California United States District Court Actions 13 14 JMH maintains that Perez did not receive additional workload after her participation in the 15 Reed Action and that any appreciable changes were due to normal hospital operations such as the 16 elimination of transport leads in the Medical Imaging Unit. Mot. at 4, 17-20. 17 c. Perez Has Raise a Triable Issue as to Pretext 18 Even if JMH's evidence is sufficient to demonstrate a legitimate, non-discriminatory 19 reason for its conduct, Perez has presented sufficient evidence of pretext or discriminatory motive 20 to create a triable issue of fact. Mr. Bell testified that Ms. Dellner targeted Perez for additional 21 four-hour floats "often," even when it did not make sense because others could have floated. Bell 22 Dep. at 60:6-14; 64:15-65:6. Indeed, other nurses were relieved of four-hour floats after 23 complaining, but Perez's pleas went unheeded. Id. at 99:8-101:10, 101:25-105:13. Making all 24 reasonable inferences in Perez's favor, this testimony suffices to satisfy Perez's "hardly onerous" 25 burden of raising a triable issue as to whether JMH's explanations for Perez's schedule are valid.3 26 3 27 The Court notes that it appears undisputed that at least one other JMH employee, Matthew Buechter, provided testimony unfavorable to JMH in the Reed Action without experiencing any 28 subsequent adverse employment actions. See Dkt. No. 70-11. Without prejudging any issue, this evidence potentially poses a significant challenge to both Plaintiffs' ability to convince a trial jury 12 6 1 See Godwin, 150 F.3d at 1221-222 (internal quotation marks omitted); see also Earl, 658 F.3d at 2 1113 (internal quotation marks omitted). 3 Accordingly, the Court DENIES JMH's motion for summary judgment as to Perez's 4 retaliation claim. 5 ii. Cerisano 6 Here, too, JMH does not dispute that Cerisano engaged in protected activity but asserts that 7 Cerisano (1) did not suffer an adverse employment action because "she resigned her employment 8 directly from her medical leave" and (2) cannot "prove that her protected activities motivated 9 JMH's conduct." Mot. at 20-21. Further, JMH contends that Cerisano possesses no admissible 10 evidence that JMH's legitimate, non-discriminatory justifications for its actions are pretextual. Id. 11 at 22-23. The Court disagrees with JMH. 12 a. JMH Has Not Shown that Cerisano Cannot Establish a Prima Facie Case Northern District of California United States District Court For Discrimination 13 14 Cerisano has produced enough evidence to establish a material dispute as to whether she 15 suffered an adverse employment action. Ms. O'Brien observed that JMH supervisors, Ms. 16 Volberding and Ms. Lovejoy, exhibited "unfair and hostile" behavior towards Cerisano. O'Brien 17 Decl. ¶¶ 9-10, 12. Ms. O'Brien felt pressured by her supervisor Ms. Volberding to discipline 18 Cerisano for matters that she felt were trivial and illegitimate. Id. ¶ 15. Ultimately, Ms. O'Brien 19 perceived that Ms. Volberding, Ms. Lovejoy, and Ms. Sara Monahan were "treating [Cerisano] 20 with hostility as compared to other nurses, and instituting steps to get rid of her." Id. ¶ 12. 21 Finally, three weeks after the Reed Action settled, Cerisano was placed on a 45-day probationary 22 period known as a Performance Improvement Plan ("PIP"). Cerisano Decl. ¶¶ 8-10. This 23 evidence raises a triable issue of fact as to whether Cerisano was subject to an adverse 24 employment action. 25 JMH asserts that Cerisano cannot establish the requisite causal link between her protected 26 activities and JMH's conduct because Ms. Lovejoy, Ms. Volberding, and Ms. Monahan all had 27 28 of causation and pretext. 13 6 1 little substantive knowledge regarding the Reed Action and the nature of Cerisano's involvement. 2 Mot. At 21. However, Cerisano need only establish that "any of the persons involved in bringing 3 about the adverse action held the requisite animus, provided that such person's animus operated as 4 a 'but-for' cause" of her adverse employment action. Reeves v. Safeway Stores, Inc., 121 Cal. 5 App. 4th 95, 108 (Ct. App. 2004). Cerisano has proffered sufficient evidence to create a triable 6 issue as to the "but for" cause of her adverse employment action. 7 Cerisano has presented evidence that both Ms. Lopes and Ms. Dellner were aware of her 8 participation in the Reed Action. Dkt. No. 86-24 at 102:6-103:8; Cerisano Decl. ¶ 3; Dkt. No. 86- 9 14 ¶ 17; Dellner Dep. at 145:19-146:24; Dellner Decl. ¶ 8. In May 2012, Ms. Dellner sent an 10 email to Ms. Volberding and Ms. Lopes complaining about Cerisano's professionalism, which 11 spurred a meeting between Cerisano and her 4-West management team, including Ms. Lovejoy 12 and Ms. Volberding. Dellner Dep., Ex. S. Thereafter, Ms. Lovejoy and Ms. Volberding were Northern District of California United States District Court 13 observed treating Cerisano in a noticeably hostile manner. See O'Brien Decl. This evidence 14 raises a triable factual dispute as to whether Ms. Lopes's and Ms. Dellner's animus towards 15 Cerisano infected her reputation in the 4-West unit and constituted a but-for cause of her 16 subsequent adverse employment action. 17 Accordingly, Cerisano has produced sufficient evidence to establish a prima facie case of 18 retaliation. Again, whether this evidence will suffice to meet the substantially higher burden 19 imposed at trial is a question for the jury. 20 b. JMH Has Articulated a Legitimate, Non-Discriminatory Reason for Its Actions 21 JMH has proffered evidence that Cerisano has a history of issues with communication and 22 professionalism, which could explain the heightened scrutiny and increased disciplinary action 23 that she experienced. See, e.g., Lopes Decl. ¶ 5; Dellner Decl., Ex. S. 24 c. Cerisano's Evidence Establishes Triable Issues of Fact Regarding Pretext 25 26 Cerisano has presented sufficient evidence of pretext or discriminatory motive to create a 27 triable issue of fact. For example, Ms. O'Brien testified that Cerisano was singled out for 28 disciplinary actions and perceived that other JMH supervisors were "instituting steps to get rid of 14 6 1 [Cerisano]." O'Brien Decl. ¶¶ 9-10, 12. 2 Furthermore, there is circumstantial evidence that Cerisano's PIP was retaliatory. A 3 January 3, 2012, email from Ms. Lopes provides evidence that Ms. Lopes briefed Ms. Monahan 4 on the nature of the Reed Action on or around that date, Dkt. No. 86-24, Ex. 87, and Ms. Monahan 5 was aware of Cerisano's Reed Action participation, Monahan Decl. ¶ 3. Thereafter, Ms. Monahan 6 approved Cerisano's PIP, which was issued in the wake of the Reed Action settlement. Dkt. No. 7 86-19, Ex. 129. Given the timing of Cerisano's PIP, and making all factual inferences in favor of 8 Cerisano regarding Ms. Monahan's knowledge of the Reed Action, a rational trier of fact could 9 conclude that Ms. Monahan delayed the issuance of Cerisano's retaliatory PIP until she could no 10 longer harm JMH in the Reed Action. 11 Although Cerisano's evidence is highly circumstantial, and again far from conclusive, 12 viewing the evidence in the light most favorable to Cerisano, the Court finds that the cumulative Northern District of California United States District Court 13 evidence creates a triable issue of fact as to whether JMH's legitimate, non-discriminatory reasons 14 for its adverse employment actions are pretext. Therefore, the Court DENIES JMH's motion for 15 summary judgment on Cerisano's retaliation claim. 16 E. Failure to Provide a Workplace Free from Discrimination and Retaliation 17 Plaintiffs bring their failure to provide a workplace free from discrimination and retaliation 18 claim against Defendants under California law. At the June 16, 2016, Motion hearing, the parties 19 agreed that Plaintiffs' claim for failure to provide a workplace free from discrimination and 20 retaliation rises or falls with Plaintiffs' claims for constructive discharge and retaliation. 21 Because the Court has held that Plaintiffs have raised a triable issue of fact as to their 22 constructive discharge and retaliation claims, the Court DENIES JMH's motion for summary 23 judgment as to Plaintiffs' claim for failure to provide a workplace free from discrimination and 24 retaliation. 25 F. Disability Discrimination 26 Lastly, Cerisano asserts disability discrimination claims in violation of the ADA and 27 FEHA. 28 JMH moves for summary judgment on Cerisano's disability discrimination claims, 15 6 1 asserting that she has failed to establish a prima facie case of disparate treatment. Mot. at 23-24. 2 However, in the opposition, Cerisano responds that her disability discrimination claims are 3 premised upon a failure to accommodate and that she "does not allege" a claim for disparate 4 treatment. Dkt. No. 86 at 25. JMH addresses the failure to accommodate theory for the first time 5 in its Reply. See Dkt. No. 89. 6 Because it is not appropriate for this Court to address arguments raised for the first time in 7 a party's reply, the Court DENIES JMH's motion for summary judgment as to Cerisano's failure 8 to accommodate claims.4 See Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010). 9 III. CONCLUSION 10 A plaintiff "need produce very little evidence in order to overcome an employer's motion 11 for summary judgment," Chuang, 225 F.3d at 1124, and the ultimate determination of Plaintiffs' 12 claims is the province of a jury. In line with the Ninth Circuit's clearly-stated standards, the Court Northern District of California United States District Court 13 DENIES JMH's motion for summary judgment. All pretrial and trial dates remain in effect. 14 15 IT IS SO ORDERED. 16 Dated: June 23, 2016 17 ______________________________________ HAYWOOD S. GILLIAM, JR. 18 United States District Judge 19 20 21 22 23 24 25 26 4 The Court notes that the FAC is vague as to whether Cerisano asserts a disability discrimination 27 claim premised upon disparate treatment. See Id. ¶¶ 87, 109. However, based on Plaintiffs' arguments in the opposition and at the June 16, 2016 hearing, the Court will hold Cerisano to her 28 representation that her disability discrimination claims are based solely on a failure to accommodate theory. 16