Datomi v. Huntington Memorial Hospital CA2/1 ( 2021 )

Filed 4/1/21 Datomi v. Huntington Memorial Hospital CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
FARNAZ DATOMI, B295054
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC683329)
v.
HUNTINGTON MEMORIAL
HOSPTIAL,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lia Martin, Judge. Affirmed.
Law Offices of Victor L. George, Victor L. George and
Wayne C. Smith; Esner, Chang & Boyer, Shea S. Murphy for
Plaintiff and Appellant.
Littler Mendelson, Monica M. Quinn, and Jacob Krall for
Defendant and Respondent.
___________________________________
Farnaz Datomi sued her employer, Pasadena Hospital
Association dba Huntington Memorial Hospital (Huntington or
the hospital) for wrongful termination, alleging the hospital
discharged her in retaliation for her complaints about improper
practices. The trial court concluded no triable issue existed as to
whether Datomi’s discharge was retaliatory, and granted the
hospital’s motion for summary judgment. We affirm.
BACKGROUND
A. Datomi’s Employment
Datomi worked as Huntington’s Director of Risk
Management from April 2012 until her termination on July 17,
2017. Her duties included resolving patient complaints and
reporting potential safety issues and regulatory noncompliance to
her supervisors and the California Department of Health.
Datomi was never disciplined during her tenure at Huntington,
but on the contrary received positive performance reviews and
merit bonuses.
The hospital adopted administrative polices and procedures
with which its employees were obligated to comply. Policy No.
156 restricted access to patient records to the patient and her
authorized representative. Policy No. 013 prescribed ethical and
professional standards. Policy No. 840.3 established a code of
conduct and demanded compliance with patient privacy laws.
On June 22, 2017, L.M., Datomi’s friend, was admitted to
the hospital’s emergency department. On June 23, L.M. asked
Datomi for her medical records, and signed a release form to
obtain them. Datomi conversed with Charlotte Landon, a nurse,
about obtaining the records.
Stephanie Garcia, a nurse, later complained to Terence Ou,
the hospital’s Compliance Officer, that Datomi had tried to coerce
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Landon into obtaining L.M.’s medical records, a violation of both
hospital policy and the Health Insurance Portability and
Accountability Act (HIPAA).
On June 29, 2107, Ou opened an investigation into the
allegation. A week later, on July 6, 2017, Huntington suspended
Datomi pending the outcome of Ou’s investigation.
Ou interviewed Datomi on July 6, 2017, who reported that
Landon had refused to facilitate L.M.’s request for medical
records. When L.M. asked Landon for help in obtaining the
records, Landon dismissively said, “we don’t do that.”
On July 17, 2017, Huntington terminated Datomi’s
employment for violation of hospital policies concerning patient
privacy.
B. Summary Judgment
Datomi sued Huntington, asserting causes of action for
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retaliation and wrongful termination in violation of public policy.
She alleged that the hospital discharged her because she had
made complaints about Landon, Garcia, and a Dr. Verrette.
Huntington moved for summary judgment, arguing it
discharged Datomi for abusing her authority and intimidating
hospital staff in order to obtain L.M.’s medical records in
violation of hospital policies.
Huntington supported the motion with copies of hospital
polices and excerpts from the deposition testimony of Datomi, Ou,
Sylvia Montes, and Gloria Sanchez-Rico. Policy No. 156 required
that a patient’s request for medical records go through the
hospital’s Medical Records Department. Policy No. 013 directed
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Datomi also asserted a cause of action for national origin
discrimination, but abandons it on appeal.
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employees to avoid conflicts of interest or the appearance of a
conflict of interest. Policy No. 840.3 directed employees to
demonstrate respect to one another, and to refrain from
intimidating employees or using condescending language.
Ou testified that he was informed Datomi sought to obtain
a copy of L.M.’s CT scan. Landon told him that Datomi tried to
intimidate her, and other staff said Datomi tried to leverage her
position as a hospital director to obtain L.M.’s records. Ou
testified that the decision to terminate Datomi’s employment for
violation of Polices Nos. 156, 013 and 840.3 was made collectively
by Gloria Sanchez-Rico, the hospital’s Senior Vice President and
Chief Nursing Officer, Jim Noble, the Chief Operating Officer,
and Steve Ralph, the Chief Executive Officer. The group
considered imposing lesser discipline, but in the end concluded
that because Datomi was a director, she should be held to a high
standard.
Datomi argued in opposition to Huntington’s motion that
the hospital terminated her employment due to her
complaints about Landon, Garcia and Varrette. She argued
that she did not attempt to obtain L.M.’s medical records, and
never possessed or reviewed them. She merely helped L.M.
obtain them for herself, and never coerced Landon to obtain
them.
The trial court found that Huntington articulated a
nonretaliatory reason for discharging Datomi, and Datomi failed
to rebut this showing or present evidence supporting a nexus
between any protected action and her discharge. The court
stated that Huntington “has established the investigation into
[Datomi] was opened on June 29, 2017[, but it] was undisputed
that on that date plaintiff had not made any complaint to a
person with authority over any employee with the authority to
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investigate the incident of June 23.” Accordingly, the court
granted Huntington’s motion and entered judgment for the
hospital.
DISCUSSION
Observing that the adverse employment action in this case
occurred not on June 29, 2017, when Ou opened the hospital’s
investigation, but July 17, 2017, when she was fired, Datomi
contends the evidence raised a triable issue as to whether a
causal link existed between her protected activity and the
adverse employment action. This is so, she argues, because the
evidence indicated that she complained to Ou about Landon on
July 7, 2017, and had made several previous complaints about
other employees.
A. Legal Principles
Labor Code section 1102.5 makes it unlawful for an
employer to “retaliate against an employee for disclosing
information . . . to a person with authority over . . . another
employee who has the authority to investigate, discover, or
correct the violation or noncompliance, . . . 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).)
Health and Safety Code section 1278.5 makes it unlawful
for a health facility to retaliate against an employee for having
“[p]resented a grievance, complaint, or report to the facility.”
(Health & Saf. Code, § 1278.5, subd. (a)(1)(A).)
To state a claim for retaliation, a plaintiff must show (1)
she engaged in a protected activity, (2) she was subjected to an
adverse employment action, and (3) there is a causal link
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between the protected activity and the adverse action. (Gov.
Code, § 12940, subd. (h); Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1042.)
Because direct evidence of an unlawful retaliation is
seldom available, courts use a system of shifting burdens to aid in
the presentation and resolution of such claims at trial. (See Guz
v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) To
establish a prima facie case of retaliation, the employee must
demonstrate that the employer had a retaliatory motive for an
adverse employment action. The employer may rebut the
showing by producing admissible evidence that it discharged the
employee for a legitimate nonretaliatory reason. If it does so, the
burden shifts to the employee to produce substantial evidence
that the employer’s justification for its decision is either untrue
or pretextual or that the employer acted with retaliatory animus.
(See id. at pp. 355-356.)
In the context of a motion for summary judgment, “ ‘the
employer, as the moving party, has the initial burden to present
admissible evidence showing either that one or more elements of
plaintiff’s prima facie case is lacking or that the adverse
employment action was based upon legitimate, [nonretaliatory]
factors.’ ” (Galvan v. Dameron Hospital Assn. (2019) 37
Cal.App.5th 549, 558-559.) A legitimate reason is one that is
facially unrelated to retaliation, and which, if true, “would thus
preclude a finding of [retaliation].” (See Guz, supra, 24 Cal.4th at
p. 358.) Making this showing is “ ‘not an onerous burden
[citation], and is generally met by presenting admissible evidence
showing the defendant’s reason for its employment decision
[citation].’ ” (Swanson v. Morongo Unified School Dist. (2014)
232 Cal.App.4th 954, 965 (Swanson).)
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When the employer satisfies its initial burden with
evidence that negates the plaintiff’s prima facie case or
establishes a legitimate nonretaliatory reason for the discharge,
the burden shifts to the employee to offer substantial evidence
that the employer’s stated reasons are “ ‘untrue or pretextual, or
evidence the employer acted with a [retaliatory] animus, or a
combination of the two, such that a reasonable trier of fact could
conclude the employer engaged in intentional [retaliation].’ ”
(Swanson, supra, 232 Cal.App.4th at p. 966.)
To satisfy this burden, the employee may not “simply deny
the credibility of the employer’s witnesses” or speculate as to
retaliatory motive. (See Serri v. Santa Clara University (2014)
226 Cal.App.4th 830, 862.) Nor is it enough to show that the
employer’s reasons were unsound, wrong, or mistaken; the
employee has brought an action for retaliation, not general
unfairness. (Hersant v. Department of Social Services (1997) 57
Cal.App.4th 997, 1005.) Rather, the employee “ ‘must
demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder
could rationally find them “unworthy of credence,” ’ ” and hence
infer that the employer did not act for the asserted nonretaliatory
reason. (Ibid.) If, “considering the employer’s innocent
explanation for its actions, the evidence as a whole is insufficient
to permit a rational inference that the employer’s actual motive
was [retaliatory],” the employer is entitled to summary judgment.
(Guz, supra, 24 Cal.4th at p. 361.)
But “evidence that the employer’s claimed reason is false—
such as that it conflicts with other evidence, or appears to have
been contrived after the fact—will tend to suggest that the
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employer seeks to conceal the real reason for its actions, and this
in turn may support an inference that the real reason was
unlawful.” (Mamou v. Trendwest Resorts, Inc. (2008) 165
Cal.App.4th 686, 715.)
On appeal, we apply an independent standard of review to
determine whether a trial is required—whether the evidence
favoring and opposing the summary judgment motion would
support a reasonable trier of fact’s determination in the plaintiff’s
favor on the cause of action or defense. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850.) In doing so we view the
evidence in the light most favorable to the party opposing
summary judgment. (Id. at p. 843; Alexander v. Codemasters
Group Limited (2002) 104 Cal.App.4th 129, 139.) We accept as
true the facts shown by the evidence offered in opposition to
summary judgment and the reasonable inferences that can be
drawn from them. (Spitzer v. The Good Guys, Inc. (2000) 80
Cal.App.4th 1376, 1385-1386.)
B. Application
As discussed above, an employer has the initial burden on
summary judgment to establish either that one or more elements
of plaintiff’s prima facie case is lacking or that the adverse
employment action was based on a nonretaliatory reason. Here,
Huntington adduced evidence that Datomi engaged in no
protected activity and that her complaint to Ou had no causal
nexus to her termination. It also presented evidence that its
reason for discharging Datomi was nonretaliatory.
1. Protected Action
Labor Code section 1102.5 makes it unlawful for an
employer to “retaliate against an employee for disclosing
information . . . if the employee has reasonable cause to believe
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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, regardless of whether disclosing the
information is part of the employee’s job duties.” (Lab. Code,
§ 1102.5, subd. (b).)
Health and Safety Code section 1278.5 makes it unlawful
for a health facility to retaliate against an employee for having
“[p]resented a grievance, complaint, or report to the facility.”
(Health & Saf. Code, § 1278.5, subd. (a)(1)(A).)
Datomi argues she told Ou that Landon refused to help
L.M. obtain her medical records, but the evidence she cites in
support indicates only that Datomi testified she “thinks” she
“might” have told Ou that Landon was dismissive of L.M.’s
request. When asked in her deposition whether Landon had
refused to facilitate L.M. obtaining her medical records, Datomi
testified, “I think I might have said [Landon] was dismissive
because of—like ‘we don’t do that.’ So not—you know, not
compassionate. . . . Not helpful.” Datomi cites no statute or
regulation obligating a nurse to be solicitous of requests for
medical records.
Nor does Datomi’s statement to Ou constitute a “grievance,
complaint, or report” for purposes of Health and Safety Code
section 1278.5. Setting aside that Datomi only “thinks” she
“might” have told Ou about Landon, she relayed nothing that
Landon actually said to L.M. The phrase “like ‘we don’t do that’ ”
characterized only Landon’s attitude, not any statement she
made. And Datomi made the characterization not as part of any
report, but only to explain her own actions to Ou.
Datomi argues she made several disclosures to her
supervisors about patient health and safety concerns going back
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10 years before her termination. She notified the hospital of
patient safety issues stemming from a patient’s death in Garcia’s
unit in April 2007, when Garcia violated Huntington’s policy by
failing to advise risk management about the death. And earlier
in 2017 Datomi reported issues concerning Garcia to the
Department of Public Health related to hospital acquired
pressure injuries. Datomi referred to a pediatric patient issue as
a “sentinel event” to Dr. Verrette, who became upset at the use of
the term, and raised patient safety issues about Dr. Verrette
regarding hospital acquired conditions and the accuracy of the
reporting. Datomi complained to Ortega about infections from
endoscopes regarding a procedure called ERCP, and raised
concerns with Ortega about Dr. Verrette.
Datomi’s position as Director of Risk Services was to
resolve patient complaints and report potential safety issues and
regulatory noncompliance to her supervisors and the California
Department of Health. Routine reports made as part of one’s job
duties arguably qualify as protected activity under Labor Code
section 1102.5, but not for purposes of Health and Safety Code
section 1278.5. (See Melamed v. Cedars-Sinai Medical Center
(2017) 8 Cal.App.5th 1271, 1289 [routine reports fail to satisfy
Health & Saf. Code, § 1278.5].)
We conclude a triable issue exists as to whether Datomi’s
reports as part of her job duties qualified as protected activity for
purposes of Labor Code section 1102.5, but not Health and Safety
Code section 1278.5, and no triable issue exists as to whether her
statements to Ou constituted protected activity under either
statute.
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2. Nexus
No triable issue exists regarding a causal connection
between any report made by Datomi—either to Ou or as part of
her job duties—and her termination. Her earlier reports to
supervisors about patient health and safety concerns resulted not
in disciplinary action, but in positive reviews and performance
bonuses. And Datomi’s report to Ou about Landon’s unhelpful
attitude came only after she was already under investigation for
violating patient privacy policies. Nothing suggests that the
course of Ou’s investigation changed when Datomi told him (if
she did so) that Landon had been unhelpful.
Ou’s report and deposition testimony indicated that the
hospital discharged Datomi because it determined that she
violated hospital policy by calling on a nurse to make a copy of
L.M.’s CT scan. Ou testified he received a complaint about
Datomi’s attempt to access L.M.’s medical records, found the
allegation was well grounded, and recommended, with several
others, that Datomi’s employment be terminated.
Even if this decision was incorrect, it was not unlawful.
(See Hersant v. Department of Social Services, supra, 57
Cal.App.4th at p. 1005 [a showing that the employer’s reasons
were unsound, wrong, or mistaken raises no triable issue; the
employee has brought an action for retaliation, not general
unfairness].) Datomi presents no evidence that if credited would
establish that the hospital’s rationale for her discharge was so
weak, implausible, inconsistent, incoherent or contradictory as to
give rise to a reasonable inference that the explanation is
unworthy of credence. (Ibid.)
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We conclude no triable issue exists as to whether Datomi’s
reports to Ou and others caused her termination. Therefore,
summary judgment was appropriate.
DISPOSITION
The judgment is affirmed. Respondent is to receive its
costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
*
FEDERMAN, J.
*
Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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