Filed 1/19/16 Yang v. Hebrew Home for the Aged, Disabled CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



JI YANG, et al.,
         Plaintiffs and Appellants,
                                                                     A143052
v.
HEBREW HOME FOR THE AGED,                                            (San Francisco County
DISABLED, etc.,                                                      Super. Ct. No. CGC 13-530998)
         Defendant and Respondent.


         Ji Yang, Aleli San Juan, Irmanette de Rosas, and Marlyn Datar (collectively,
plaintiffs) are former employees of Hebrew Home for the Aged, Disabled (the Home).
After their termination, plaintiffs sued the Home for race and national origin
discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov.
Code, § 12940 et seq.). The trial court granted summary judgment for the Home,
concluding the Home presented a legitimate business reason for the terminations and
plaintiffs failed to demonstrate the reason was untrue or pretextual.
         Plaintiffs appeal. They contend the court erred by granting summary judgment
because they demonstrated the Home’s reason for their terminations was false and
pretextual. We disagree and affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
         The Home is a licensed skilled nursing facility in San Francisco. In 2011, 75
percent of the nurses at the Home were Asian. The Home’s staff nurses are required,


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among other things, to document the residents’ health conditions and to communicate
significant changes to appropriate staff. Staff nurses are also required to perform “skin
assessment[s]” on the residents and to record their findings on multidisciplinary skin
assessment sheets. The Home compiles these notes into a clinical notes report, on which
the medical staff relies to treat the patient.
Plaintiffs’ Employment at the Home and Resident X
       Plaintiffs identify as Asian. Plaintiff Yang identifies as South Korean. Plaintiffs
San Juan, de Rosas, and Datar identify as Filipina. In 2011, plaintiffs were nurses at the
Home. Plaintiffs Yang, San Juan, and de Rosas were registered nurses; plaintiff Datar
was a licensed vocational nurse. In 2011, the elderly Resident X — who suffered from a
chronic condition causing his skin to blister — lived at the Home. From May to
September 2011, plaintiffs cared for Resident X “virtually every single day” and
sometimes up to three times daily. Plaintiffs knew of Resident X’s skin condition and his
tendency to develop blisters.
       In early May 2011, Resident X developed a blister on his right foot. Plaintiffs
were aware of the blister. The blister did not heal with standard treatment; by July 2011,
it had progressed into a necrotic wound. In July 2011, plaintiff San Juan notified nurse
practitioner Jennifer Serafin about the wound; in September 2011, the Home assigned
wound care specialist Barbara Newman to examine the wound and recommend treatment.
In October 2011, Resident X was hospitalized for treatment of the wound; he died of
pneumonia in late 2011.
The Home’s Investigation and Plaintiffs’ Termination
       Dr. Edwin Cabigao, Ph.D., is Asian and was raised in the Philippines. He has a
doctoral degree in health care administration and is a registered nurse and a former
licensed vocational nurse. As the Home’s Director of Nursing, Dr. Cabigao manages the
Home’s registered nurses and licensed vocational nurses. In September 2011, Dr.
Cabigao learned of Resident X’s wound and began an investigation. Zenaida Cura, the
Home’s Assistant Director of Nursing — who is also Asian and from the Philippines —
helped Dr. Cabigao with the investigation. Dr. Cabigao interviewed each of the 12

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nurses who cared for Resident X between May and September 2011, including plaintiffs.
All 12 nurses are Asian.
       Dr. Cabigao concluded plaintiffs had improperly documented Resident X’s wound
on multiple occasions, in part because plaintiffs had not prepared any multidisciplinary
skin assessment sheets for Resident X. The Home terminated plaintiffs’ employment in
November 2011 and filled their shifts with other Asian nurses working at the Home.1
After their termination, plaintiffs filed a complaint against the Home alleging
discrimination based on race and national origin in violation of FEHA.
The Home’s Motion for Summary Judgment
       In its summary judgment motion, the Home argued plaintiffs could not establish a
prima facie case of discrimination because: (1) a majority of the Home’s nurses — and its
director and assistant director of nursing — were Asian and not of United States national
origin; (2) there was no evidence of discrimination; (3) the Home did not treat similarly
situated employees more favorably; and (4) plaintiffs were not adequately performing
their jobs when they were terminated. The Home claimed there was no evidence of
discriminatory motive because Dr. Cabigao, who terminated plaintiffs, is Asian and
Filipino, and because the Home filled plaintiffs’ shifts with Asian nurses already working
at the Home. In addition, the Home contended Dr. Cabigao based his decision to
terminate plaintiffs on how frequently they cared for Resident X, and how frequently they
failed to properly document his wound. Next, the Home claimed it had a legitimate,
nondiscriminatory reason for terminating plaintiffs: “their admittedly substandard
documentation” regarding Resident X’s blister. Finally, the Home argued plaintiffs could
not establish the reason for their termination was pretextual or discriminatory, and that



1
       All 12 nurses who cared for Resident X are Asian. Five (including plaintiffs) were
terminated, five were suspended, and two were not disciplined. The nurses who were not
terminated did not see Resident X as frequently as plaintiffs. Plaintiff Datar’s union filed
a grievance challenging her termination. Following an evidentiary hearing, an arbitrator
concluded the Home lacked “just cause” to terminate Datar and she was reinstated.

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nurse practitioner Serafin and wound care specialist Newman — who are Caucasian —
were not similarly situated to plaintiffs.
       Dr. Cabigao’s supporting declaration described his investigation, including his
interviews with plaintiffs. Dr. Cabigao noted he “addressed separately each of the
Plaintiffs’ clinical notes regarding Resident X’s wound” and gave “each Plaintiff the
opportunity to explain her documentation[.]” In her interview, plaintiff San Juan
admitted she did not perform a skin assessment or complete a multidisciplinary skin
assessment sheet, even when she noticed Resident X’s wound had become necrotic. She
also admitted she never measured Resident X’s wound and did not document the color of
the wound or the presence of odor or discharge. Plaintiff Datar admitted her clinical
notes did not include the size of the wound and admitted it would have been “helpful” if
she had more fully-documented the blister. Plaintiff de Rosas admitted she completed a
skin assessment for Resident X without removing the dressing and observing the blister.
Plaintiff Yang similarly admitted she noticed the blister in May 2011, but did not prepare
a multidisciplinary skin assessment sheet; she also conceded did not document the
changes she observed in the blister from May to September 2011.
       After conducting his investigation and reviewing “clinical notes, treatment
records, weekly nursing summary, progress notes, and employees schedules[,]” Dr.
Cabigao determined plaintiffs cared for Resident X most frequently “and most frequently
failed to properly document his wound[,]” in part because plaintiffs’ notes did not
describe the progression of Resident X’s blister to necrotic wound. Dr. Cabigao based
his decision to terminate plaintiffs not on their national origin or race, but on their
“substandard documentation with respect to Resident X” and “the number of times [they]
cared for Resident X without properly documenting his condition.”
Plaintiffs’ Opposition and the Home’s Reply
       In opposition, plaintiffs argued they established a prima facie case of disparate
treatment and the Home’s alleged reasons for terminating them were false and pretextual
because: (1) they complied “with the Home’s written policies” when they treated
Resident X and documented his blister; (2) their clinical notes were sufficiently detailed;

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(3) the Home investigated plaintiffs only after Resident X’s family consulted an attorney
regarding a lawsuit against the Home; (4) the Home’s investigation was not thorough;
and (5) nurse practitioner Serafin and wound care specialist Newman were similarly
situated and documented Resident X’s condition in the same manner as plaintiffs, but
were not disciplined.2 Plaintiffs noted the arbitration decision concluded the Home
lacked “just cause” to terminate plaintiff Datar.
       Plaintiffs’ supporting declarations described their treatment of Resident X.
Plaintiffs averred they followed the Home’s policy and procedure regarding “charting
and documenting” and that it was “not a common practice” in 2011 “to provide extensive
documentation” of residents’ blisters. According to plaintiffs, the Home’s skin and
wound care policy and procedure in 2011 did not require detailed description or
documentation of minor skin issues such as blisters. Registered nurse Julie Baird’s
supporting declaration opined plaintiffs appropriately cared for Resident X and
documented his skin issues in compliance with the Home’s written policy. According to
Baird, there was no significant difference between plaintiffs’ documentation of Resident
X’s blister and documentation by other Home staff who were not terminated, including
nurse practitioner Serafin. Plaintiffs also relied on the arbitration decision concluding the
Home did not have “just cause” for plaintiff Datar’s termination under the parties’
collective bargaining agreement because the Home did not notify plaintiff Datar of her
deficient note taking and give her an opportunity to correct the problem before
terminating her.
       The Home’s reply claimed Serafin and Newman were not similarly situated to
plaintiffs because: (1) plaintiffs were not qualified to be nurse practitioners or wound care
specialists; (2) Serafin and Newman did not treat Resident X until after blister had
become a necrotic wound; and (3) Serafin and Newman were not responsible for daily


2
       Plaintiffs argued they were not required to complete multidisciplinary skin
assessment sheets because Resident X’s blister had not developed into an ulcer; they
claimed the Home changed its policy after terminating them and added blisters to the list
of skin conditions requiring nurses to complete multidisciplinary skin assessment sheets.
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documentation of Resident X’s condition from May to July 2011, when his blister was
progressing into a necrotic wound. The Home also argued plaintiffs’ focus on the
adequacy of their documentation was irrelevant because Dr. Cabigao “reasonably
believed” plaintiffs’ documentation “was insufficient.” As the Home explained, the issue
was not whether its termination decision was wise or correct, but whether the termination
was “unrelated to the prohibited form of discrimination[.]” Finally, the Home claimed
plaintiffs failed to establish its reason for terminating plaintiffs was pretextual.
Order Granting Summary Judgment
       Following a hearing, the court granted the Home’s summary judgment motion.
The court concluded the Home presented “a legitimate business reason for the
terminations” and plaintiffs failed to present “substantial responsive evidence” showing
that reason was “untrue or pretextual.” According to the court, the undisputed evidence
established: “(1) Dr. Cabigao is in the same class as plaintiffs (Asian) and there is an
inference against racial discrimination in such circumstances; (2) Dr. Cabigao had a role
in hiring plaintiff Yang and there is an inference against discrimination where the hirer
and firer are the same person; (3) the nurses that replaced plaintiffs are Asian; and (4)
seventy-five percent of the nurses that work for [the Home] are Asian.” The court
rejected plaintiffs’ contention that the Home discriminated against them because Serafin
and Newman “were not terminated or even investigated[,]” and concluded Serafin and
Newman “did not see Resident X as frequently as plaintiffs and plaintiffs’ theory of
disparate treatment founders because the plaintiffs on the one hand, and Ms. Serafin and
Ms. Newman, on the other hand, were not similarly situated.” The court entered
judgment for the Home.
                                        DISCUSSION
                                               I.
                             FEHA and the Standard of Review
       FEHA protects employees from discrimination based on race and national origin.
(Gov. Code, § 12940, subd. (a); Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159
(Wills).) “California has adopted the three-stage burden-shifting approach established by
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the United States Supreme Court for trying [FEHA] discrimination claims.”3 (Horne v.
District Council 16 Internat. Union of Painters & Allied Trades (2015) 234 Cal.App.4th
524, 533 (Horne), citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-
805.) Plaintiffs bear “the initial burden to prove a prima facie case of discrimination by a
preponderance of the evidence. [Citations.]” (Horne, supra, 234 Cal.App.4th at p. 533;
Wills, supra, 195 Cal.App.4th at p. 159.) If plaintiffs meet this burden, “the burden shifts
to [the Home] to offer any legitimate, nondiscriminatory reasons” for terminating them.
(Horne, supra, 234 Cal.App.4th at p. 533.) Finally, if the Home “presents evidence
showing a legitimate, nondiscriminatory reason, the burden again shifts to the plaintiff[s]
to establish [the Home] intentionally discriminated against” them. (Wills, supra, 195
Cal.App.4th at p. 160.)
       “We review the trial court’s decision to grant summary judgment de novo. We are
not bound by the . . . court’s stated rationale, but independently determine whether the
record supports the . . . court’s conclusion that plaintiffs[’] discrimination claim failed as
a matter of law. [Citation.]” (Wills, supra, 195 Cal.App.4th at p. 161.) “In performing
our review, we view the evidence in a light favorable to” plaintiffs, “liberally construing
[their] evidentiary submission while strictly scrutinizing the [Home’s] own showing and
resolving any evidentiary doubts or ambiguities in [plaintiffs’] favor.” (Serri v. Santa
Clara University (2014) 226 Cal.App.4th 830, 859.)

                                              II.
          Plaintiffs Cannot Establish the Home’s Legitimate, Nondiscriminatory
                   Reason for Terminating Them was False or Pretextual
       We will assume for the sake of argument plaintiffs established a prima face case of
discrimination.4 (See Marquez v. Bridgestone/Firestone, Inc. (8th Cir. 2004) 353 F.3d

3
       “Due to ‘the similarity between state and federal employment discrimination laws,
California courts look to pertinent federal precedent when applying our own statutes.
[Citation.] . . .’” (Wills, supra, 195 Cal.App.4th at p. 159, quoting Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).)
4
       The court did not explicitly determine plaintiffs stated a prima facie case of
discrimination. The burden of establishing a prima facie case of discrimination “is not
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1037, 1038 (Marquez).) As we have explained, once the “employee establishes a prima
facie case, ‘the employer must offer a legitimate reason for [its] actions . . . .’ [Citation.]”
(Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 663.) Here, the Home
articulated a legitimate, nondiscriminatory reason for plaintiffs’ termination: the
frequency with which plaintiffs saw Resident X and failed to document his blister. Dr.
Cabigao averred he decided to terminate plaintiffs “based strictly and only on the
frequency with which [they] had the opportunity to assess Resident X’s foot, and failed to
properly document [his] foot condition.” Plaintiffs acknowledge “a nurse’s persistent and
serious failure to properly document her patients’ relevant medical conditions . . . may be
grounds for discharge.” (See, e.g., King v. United Parcel Service, Inc. (2007) 152
Cal.App.4th 426, 433 [employer’s “honest belief” the plaintiff committed an integrity
violation was a legitimate reason for discharge]; Villiarimo v. Aloha Island Air Inc. (9th
Cir. 2002) 281 F.3d 1054, 1063 [“‘foolish or trivial or even baseless’” reasons, if
nondiscriminatory, may support termination]; Hersant v. Department of Social Services
(1997) 57 Cal.App.4th 997, 1005 [employer demoted the plaintiff for nondiscriminatory
reasons, including accusations of inefficiency and dishonesty].)
       Plaintiffs contend they established the Home’s reason for firing them was false
because they were not required to provide a “detailed description” for Resident X’s
blister. According to plaintiffs, the Home’s written policies and procedures required
nurses to complete multidisciplinary skin assessment sheets only when a resident’s blister
developed into a wound. Plaintiffs’ focus on their purported compliance with the Home’s




meant to be an ‘onerous’ one, but is designed merely ‘to eliminate at the outset the most
patently meritless claims, as where the plaintiff is not a member of the protected class or
was clearly unqualified, or where the job [s]he sought was withdrawn and never filled.’
[Citation.]” (Horne, supra, 234 Cal.App.4th at p. 533.) To establish a prima facie case
under FEHA, the plaintiff must offer evidence: (1) she was a member of a protected
class; (2) she was performing competently in her position; (3) she suffered adverse
employment action; and (4) some other circumstance suggesting discriminatory motive,
i.e., that the person who replaced her was not a member of a protected class. (Id. at p.
534, citing Guz, supra, 24 Cal.4th at p. 355.)
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policies and procedures is unavailing.5 To demonstrate an employer’s proffered
nondiscriminatory reason is false or pretextual, “‘[an 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.] 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] non-discriminatory reasons.”
[Citations.]” [Citations.]’” (Hersant v. Department of Social Services, supra, 57
Cal.App.4th at p. 1005.) Plaintiffs cannot satisfy this burden. Their disagreement with
Dr. Cabigao’s decision does not establish the Home’s reason for terminating them was
false or pretextual. (Munoz v. Mabus (9th Cir. 2010) 630 F.3d 856, 865 [“denying the
credibility of the employer’s proffered reasons is insufficient to withstand summary
judgment” under Title VII].)
       Next, plaintiffs claim the Home treated similarly situated employees differently,
which they contend supports “a showing of pretext.” According to plaintiffs, they were
treated “far more adversely” than nurse practitioner Serafin and wound care specialist
Newman, Caucasians who also treated Resident X. The trial court was not persuaded by
this argument, and neither are we. “To establish discrimination based on disparate
discipline, it must appear ‘that the misconduct for which the employer discharged the
plaintiff[s] was the same or similar to what a similarly situated employee engaged in, but

5
        Plaintiffs claim the arbitration decision establishes their performance was not
deficient. As it did in the trial court, the Home contends the decision is irrelevant and
fails to demonstrate pretext. We agree. The arbitration decision — which concerned
only plaintiff Datar — has limited relevance here. The arbitrator considered whether
Home established it had “just cause” to terminate plaintiff Datar under the parties’
collective bargaining agreement, i.e., whether the Home’s rationale was “fair” and
undertaken in “good faith.” Here, the trial court considered a different issue: whether
plaintiff established unlawful discrimination in violation of FEHA.

                                              9
that the employer did not discipline the other employee similarly.’ [Citation.] . . . No
inference of discrimination reasonably arises when an employer has treated differently
different kinds of misconduct by employees holding different positions.” (McGrory v.
Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1535-1536.)
       “[I]ndividuals are similarly situated when they have similar jobs and display
similar conduct.” (Vasquez v. County of Los Angeles (9th Cir. 2003) 349 F.3d 634, 641,
fn. omitted.) Here, Serafin or Newman are not similarly situated to plaintiffs. Serafin
and Newman held different positions — they were not staff nurses at the Home — and
plaintiffs concede they were not qualified to hold the positions of nurse practitioner or
wound care specialist. Plaintiffs’ expert, Baird, conceded Serafin’s clinical notes were
different than plaintiffs because of “her different scope and approach[.]” Additionally,
Dr. Cabigao did not supervise the Home’s nurse practitioners or physicians assistants.
       That Serafin and Newman had a responsibility to document Resident X’s wound
does not render them similarly situated to plaintiffs. (See Guz, supra, 24 Cal.4th at p.
369 [alleged comparators “performed distinct duties at disparate ranks and levels of
responsibility”]; Marquez, supra, 353 F.3d at p. 1038 [to establish other employees were
similarly situated, the plaintiff “was required to point to individuals who . . . ‘have been
subject to the same standards, and engaged in the same conduct without any mitigating or
distinguishing circumstances’”].) Serafin and Newman did not care for Resident X as
frequently as plaintiffs and it was not their job to document his blister as it was
progressing into a necrotic wound. Serafin and Newman did not treat Resident X until
after his blister had become necrotic.
       We are not persuaded by plaintiffs’ contention — unsupported by authority — that
the Home’s “deficient investigation of Resident X’s care” demonstrates pretext. Courts
“do not ‘sit as super-personnel departments reviewing the wisdom or fairness of the
business judgments made by employers, except to the extent those judgments involve
intentional discrimination.’ [Citation.]” (Stallings v. Hussmann Corp. (8th Cir. 2006)
447 F.3d 1041, 1052.) Here, the question is not whether the Home’s investigation was
perfect, but whether the Home acted with a discriminatory motive. The answer is no.

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(See E.E.O.C. v. Total System Services, Inc. (11th Cir. 2000) 221 F.3d 1171, 1176 [courts
will not second-guess an employer’s decisions regarding internal investigations];
Humphries v. CBOS West, Inc. (7th Cir. 2007) 474 F.3d 387, 407 [rejecting argument that
“merely pointing to an employer’s shoddy investigatory efforts is sufficient to establish
pretext”].)
       We conclude the Home established a legitimate, nondiscriminatory reason for
terminating plaintiffs’ employment and plaintiffs failed to offer sufficient evidence
raising a reasonable inference the Home’s reason was false or a pretext for
discrimination. The court properly granted the Home’s summary judgment motion.
(Wills, supra, 195 Cal.App.4th at p. 173; Hicks v. KNTV Television, Inc. (2008) 160
Cal.App.4th 994, 1003.)
                                      DISPOSITION
       The judgment is affirmed. Hebrew Home for the Aged, Disabled is entitled to
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)




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                                 _________________________
                                 Jones, P.J.




We concur:


_________________________
Needham, J.


_________________________
Bruiniers, J.




A143052

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