Ortiz v. Dameron Hosp. Ass'n

250 Cal. Rptr. 3d 1, 37 Cal. App. 5th 568
CourtCalifornia Court of Appeal, 5th District
DecidedJune 20, 2019
DocketC081091
StatusPublished
Cited by45 cases

This text of 250 Cal. Rptr. 3d 1 (Ortiz v. Dameron Hosp. Ass'n) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ortiz v. Dameron Hosp. Ass'n, 250 Cal. Rptr. 3d 1, 37 Cal. App. 5th 568 (Cal. Ct. App. 2019).

Opinion

BLEASE, Acting P. J.

*572Plaintiff Nancy Ortiz brings this employment discrimination case against her former employer Dameron Hospital Association (Dameron) and former supervisor Doreen Alvarez (collectively defendants), alleging that she was discriminated against and subjected to harassment based on her national origin (Filipino) and age (over 40) at the hands of Alvarez, and that Dameron failed to take action to prevent it in violation of the California Fair Employment and Housing Act (the FEHA) ( Gov. Code, § 12900 et seq. ).1 Ortiz claims that she was forced to resign due to the intolerable working conditions created by Alvarez in order to accomplish Alvarez's goal of getting rid of older, Filipino employees, like Ortiz, who, in Alvarez's words, "could not speak English," had "been there too long," and "ma[d]e too much money." The complaint asserts causes of action for discrimination (§ 12940, subd. (a); against Dameron), harassment (§ 12940, subd. (j); against Dameron and Alvarez), retaliation (§ 12940, subd. (h); against Dameron), failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring (§ 12940, subd. (k); against Dameron), and injunctive relief ( Code Civ. Proc., § 526 ; against Dameron).2 The complaint also prays for punitive damages.

*573Defendants moved for summary judgment, or in the alternative summary adjudication. The trial court granted defendants' motion for summary judgment. The trial court found that Ortiz could not make a prima facie showing of discrimination because she cannot show that she suffered an adverse employment action, and could not make a prima facie showing of harassment because she cannot show that any of the complained of conduct was based on her national origin or age.3 The trial court determined that the remaining causes of action as well as the claims for injunctive relief and punitive damages were derivative of the discrimination and harassment causes of action and thus had no merit.

*6Ortiz appeals, contending that there are triable issues of material fact as to each of her causes of action, except retaliation, and her claims for injunctive relief and punitive damages. We agree in part. We will reverse the judgment and direct the trial court to vacate its order granting summary judgment and enter a new order granting summary adjudication of Ortiz's retaliation cause of action and request for punitive damages as to Dameron but denying summary adjudication of her discrimination, harassment, and failure to take necessary steps to prevent discrimination and harassment causes of action, her claim for injunctive relief, and her request for punitive damages as to Alvarez.4

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from the evidence set forth in the papers filed in connection with the summary judgment motion, except that to which objections were properly made and sustained. ( Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037, 32 Cal.Rptr.3d 436, 116 P.3d 1123.) Consistent with the applicable standard of review, we summarize the evidence in the light most favorable to Ortiz, the party opposing summary judgment, resolving any doubts concerning the evidence in her favor. ( Ibid. )

Ortiz, a registered nurse, worked for Dameron Hospital for approximately 10 years. She was born in the Philippines and immigrated to the United States. English *574is her second language and she speaks with a thick accent. Ortiz was over 40 years old when her employment with Dameron ended in July 2012.

In mid-2011, Alvarez became the director of the medical-surgical and telemetry departments. At the time, Ortiz was working as a unit coordinator in the medical-surgical department, overseeing the work of the other nurses, and Alvarez became her direct supervisor. Like Ortiz, the vast majority of unit coordinators in those departments were Filipino. According to Alvarez, "It was 99 percent Filipino and one percent Japanese or Chinese." There was also at least one unit coordinator from Africa.

Every time Alvarez met with the unit coordinators, she provided "negative feedback," and "insult[ed]," "degrade[d]," and "humiliate[d]" them. At her first meeting with the unit coordinators, Alvarez brought the unit coordinators' personnel files to the meeting and stated that she had found "horrible" and "disgusting" things in the files. She told them that she had already heard about them around the hospital, and that she was ready to "make a change." She also stated that "she ha[d] eyes around the hospital" and whatever they said about her would get back to her.

Alvarez singled out unit coordinators who spoke English as a second language for criticism and often focused her comments on their accents and their supposed poor English language skills. At one meeting, Alvarez told the unit coordinators, "I don't know how Dameron gets you guys. Your accents are thick. [You] don't know what [you are] doing." She read from performance evaluations drafted by unidentified unit coordinators and criticized the drafters' grammar. She stated that "those of you with a thick accent, those of you that cannot speak English ... need to go *7back to school and learn how to read and write grammar," and that her young son could follow directions better than those unit coordinators who spoke English as a second language. She also advised them that she was there "to clean the house."

At another meeting, Alvarez introduced a new unit coordinator who was White, and told the other unit coordinators, "She speak[s] good English. She's well educated. She's going to do a better job [than] most of you guys here because you guys don't know how to speak English."

On at least one occasion, Alvarez specifically stated that the "Filipino unit coordinators" did not speak English well, could not formulate a sentence, and had poor grammar. She also stated that "she was tired of attending meetings where Filipinos and minority workers over 40 were present."

At one point, Alvarez told the unit coordinators that they could "step down, step up or step out," and handed them job openings in other departments.

*575Ortiz had face-to-face interactions with Alvarez during her annual evaluations, at staff and unit coordinator meetings, during a meeting with Alvarez and clinical manager Bassey Duke, and during a meeting with Alvarez and another nurse in the medical-surgical department.

Duke worked with Ortiz and reported to Alvarez.

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Bluebook (online)
250 Cal. Rptr. 3d 1, 37 Cal. App. 5th 568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-dameron-hosp-assn-calctapp5d-2019.