Filed 2/7/14 De Jardin v. Kindred Healthcare Operating CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


RASSI DE JARDIN,

     Plaintiff and Appellant,                                          G047580

         v.                                                            (Super. Ct. No. 30-2011-00516947)

KINDRED HEALTHCARE OPERATING,                                          OPINION
INC., et al.,

     Defendants and Respondents.



                   Appeal from a judgment of the Superior Court of Orange County, Steven
Siefert, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed in part,
affirmed in part.
                   Ames Law Office and Douglas A. Ames for Plaintiff and Appellant.
                   Alston & Bird, Martha S. Doty and Sayaka Karitani for Defendants and
Respondents.
                                          *                  *                  *
              Rassi de Jardin was fired for alleged sexual harassment. He claims the
sexual harassment charge was a pretext to get rid of him for having given adverse
testimony in a previous investigation of his supervisor’s protégé. The trial court granted
summary judgment to De Jardin’s former employer, Kindred Hospital, on the ground
there was no causal link between the supervisor’s animus and De Jardin’s firing. We
disagree and reverse that aspect of the judgment.
              The standard of review governing summary judgment motions requires that
all conflicts and inferences must be drawn in favor of the responding, not moving party.
Under that standard of review, we find substantial evidence of a causal link between the
supervisor’s animus and De Jardin’s termination. That evidence includes:
              (a) evidence of the supervisor’s displeasure with De Jardin’s testimony in
the previous investigation combined with his substantial role in the investigation of the
sexual harassment complaint against De Jardin, which allowed him to put De Jardin in
the worst possible light (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 113
[reversing summary judgment where supervisor with retaliatory animus was able to steer
investigation of alleged misconduct to put employee in worst possible light]); and
              (b) the expansion of the investigation of the single sexual harassment
complaint made against De Jardin – without any notice to him – into a general fishing
expedition looking for any arguable sexual harassment charges that might be lodged
against him. (Yanowitz v. L’Oreal (2005) 36 Cal.4th 1028, 1039-1040, 1055 [reversing
summary judgment where management actively solicited negative information against
employee who had refused to implement discriminatory firing of subordinate].)
              There may be perfectly good explanations for these and other things we
discuss below – we take no position on the ultimate resolution of this dispute – but they
are explanations that should be tendered to a trier of fact.




                                              2
                                         I. FACTS
A. Standard of Review
              “Because we review this matter after summary judgment was entered in
favor of [the employer], we consider the facts most favorably to plaintiffs. We liberally
construe plaintiffs’ evidentiary submissions, strictly construe the evidence submitted by
[the employer], indulge all reasonable inferences in support of plaintiffs, and resolve all
evidentiary doubts or conflicts in favor of plaintiffs.” (Vasquez v. Residential
Investments, Inc. (2004) 118 Cal.App.4th 269, 274, fn. 2.)
B. Events at Kindred Hospital in the Summer of 2011
              In May 2011, Rabin Kazemi, a respiratory therapist at Kindred Hospital in
Westminster, complained to the director of the respiratory therapy department, Lito
Cabra, about ethnic slurs made against him by Michael Gordon, another respiratory
therapist. Cabra initiated an investigation by contacting Maria Laureano, a human
resources advisor. Laureano and Cabra then called in various witnesses to investigate the
complaint against Gordon. Plaintiff Rassi De Jardin was the first witness in the hospital’s
investigation. Perceiving a close relationship between supervisor Cabra and the accused
Gordon, De Jardin was reluctant to testify and in fact told Laureano of his reluctance.
Gordon had been a protégé of Cabra’s. Cabra had been responsible for promoting
Gordon, and the two had been on sufficiently friendly terms that they had been overheard
discussing Cabra’s sex life.
              Despite his misgivings about offending Cabra, De Jardin gave evidence
unfavorable to Gordon. At the time De Jardin gave his testimony, Cabra seemed “really,
really upset.” The change in his demeanor in reaction to De Jardin’s testimony was
perceptible. Going into the meeting at which De Jardin testified, Cabra had seemed
relaxed and comfortable with De Jardin. But after the meeting, Cabra avoided all eye
contact with him. Gordon was suspended immediately and soon terminated. Gordon



                                              3
blamed De Jardin for his termination and sent him a series of angry text messages to that
effect.
              At his deposition in this case, De Jardin was very clear that he complained
to Maria Laureano the human resources officer in June and July about Cabra’s attitude
toward him. Laureano responded to De Jardin’s complaint about Cabra by telling him
there was nothing to be done “until anything happened,” and she reassured him “it should
just pass.” De Jardin didn’t believe he could go to anyone else but Laureano because she
was the “HR person to who I could address my concerns.”
              Immediately after De Jardin’s adverse testimony against Gordon, Cabra
(who normally worked daylight hours) began calling De Jardin (who worked nightshift
hours) in for meetings during daylight hours about “every charting.” This happened on
“multiple occasions” following the testimony against Gordon. The net effect was to
seriously disrupt De Jardin’s sleep patterns. The inconvenient meetings continued
through the summer of 2011, even though De Jardin received a formal performance
review from Cabra recognizing De Jardin exceeded standards of professionalism.
              On August 2, 2011, about 10 weeks after De Jardin’s testimony against
Gordon, a nurse’s assistant named Sandra Barragan complained that De Jardin had
sexually harassed her on the previous night’s shift, including attempting to kiss her.
Barragan had reason to fabricate a sexual harassment claim. She had been facing
discipline for having come to work under the influence of crystal meth, and for
accumulated absences and tardiness, but had been overheard to say that if she presented a
sexual harassment claim, “they” would “never fire” her. But the hospital, quite rightly,
looked into her complaint.
              An investigation committee was assembled that very morning. At the
beginning, the committee consisted of human resources advisor Laureano and Cabra.
Laureano initially asked nurse supervisor Ryleen Granada-Madrigal to join the panel, but
Granada-Madrigal begged off, asserting she herself had been “sexually harassed” by De

                                             4
Jardin back in early 2010. Instead, nursing manager Charlotte Cook was brought into the
committee.
              The basic narrative of their interview of De Jardin is this: After having
worked 12 hours, De Jardin went home to sleep. A few hours later, around 10 in the
morning, he got a call from Laureano requesting he come to her office around 2 p.m. The
call woke him up. He was exhausted from the previous evening’s work, but the call from
Laureano prevented him from getting any more sleep in the interim. At his interview De
Jardin was asked about his conduct with Barragan in detail. He categorically denied any
harassment.
              De Jardin might – or might not – have been asked about whether he had
harassed any other nurses. At one point in his deposition in this case he gave an
affirmative answer as to whether he was asked by Laureano or Cook if he had acted
similarly toward other nurses as he had acted toward Barragan. But the context of his
answer to the next question – he spoke exclusively of what he had been asked about
Barragan – and his subsequent statement that he didn’t remember being so asked, but if
he had been so asked would have denied any such behavior – suggests he had a mistaken
understanding of the question, i.e., in the investigation he was only asked about Barragan
and not whether he had harassed other nurses.
              However, even if De Jardin was asked whether he had harassed other
nurses, there is no evidence in this record that he was asked about any specific incidents
of possible harassment related to the committee by Granada-Madrigal or nurses Jennifer
Tanqueco, Darlene Villaber, or Conchita Somido. And there appears to be an obvious
reason for the lack of any such specific questions: Those four individuals had never
complained of any sexual harassment by De Jardin, and had yet to be interviewed by the
committee, so the committee would have had no basis for such questions. At the end of
the August 3 interview, De Jardin was suspended by Laureano.



                                             5
                  Laureano’s committee soon interviewed Granada-Madrigal and the three
other nurses just mentioned – Tanqueco, Villaber and Somido – whose names Granada-
Madrigal had given the committee. The committee solicited these interviews, and there
is no evidence in the record to suggest that any of these four had ever complained about
sexual harassment by De Jardin in the past.
                  But there were two other interviews as well, of nurses whose names De
Jardin had given as present on the night shift when he allegedly harassed Barragan: Ofa
Motuahala and Meschelle Ahmed. Neither had previously ever come forward to
complain of any conduct by De Jardin. Motuahala told the committee she saw nothing
untoward between De Jardin and Barragan, but she didn’t listen in on conversations
between coworkers. Ahmed specifically told the committee about Barragan’s alleged
problems with crystal meth and Barragan’s comment that a sexual harassment complaint
would mean “they will never fire me.” To the degree that Motuahala or Ahmed, the two
interviewees who might have seen or heard any harassment of Barragan by De Jardin
provided any information to the committee, it tended to exonerated De Jardin. Neither
said they saw or heard any untoward behavior or words on De Jardin’s part.
                  The four other nurses, however, described incidents dating from years
previous suggesting, at the very least, that De Jardin had been too familiar with them. By
August 5, Laureano had prepared a formal memo to Jeffrey Sopko, Kindred’s regional
human resource director, the core of which was that De Jardin had sexually harassed
nurses Granada-Madrigal, Somido, Villaber and Tanqueco.1


         1        This is a summary judgment case, the responding party therefore receives the benefit of all
inferences and conflicts. Accordingly, we do not, in this context, go so far as to label those previous incidents as
“sexual harassment.” That’s a legal conclusion, which would require development on a more complete record and,
more importantly, since De Jardin categorically denied such behavior at his deposition, the conflict is resolved in his
favor for purposes of this appeal.
                  Here is what those four nurses reported to the investigation committee as described in the
committee’s own report. Again we remind readers that since De Jardin flatly denied any such behavior, the question
of whether these incidents actually happened, or happened as egregiously as the report describes them, is resolved in
De Jardin’s favor;


                                                          6
                  Concerning Barragan, however, the memo’s finding was that “Since there
were no witnesses we were not able to validate Sandra’s story.” So the initial complaint
was never substantiated. Moreover, while nurse Ahmed had provided Kindred with
information concerning Barragan’s motive to lie about sexual harassment (her “they will
never fire me” comment), that information did not make it into Laureano’s report.
                  Despite its omission from Laureano’s report, Sopko was aware of nurse
Ahmed’s allegations concerning Barragan. However, in evaluating Laureano’s report,
Sopko discounted the evidence of Ahmed, the nurse who recounted Barragan’s statement
a sexual harassment claim would give her immunity from firing, because he thought
Ahmed and De Jardin had some sort of relationship which might cast doubt on her story –
a belief he admitted was “speculation and conjecture” on his part.



                   Nurse Conchita Somido said that sometime in early 2010 De Jardin said something to her the
effect of which was “Oh baby you’re hot today” and “would ask [her] to go out.” She replied she was married, and
it was not nice or ethical to ask such questions. Somido also overheard De Jardin speaking about a girl he dated and
“how hot she was” and that the two of them “did it.” Somido told De Jardin “not to talk in the unit about that kind
of stuff.” Laureano’s memo does not contain any evidence that De Jardin continued to talk about inappropriate
subjects with Somido after her admonition to him to stop.
                   Nurse Darlene Villaber said some six months prior to her interview De Jardin “would joke and say
can we go on a hot date,” which he did both while they were alone and while other “people were around.” Also,
once he walked into the nurses lounge and hugged her, which made her feel uncomfortable, and she asked him to
“stop it.” The memo also related how the husband of an unnamed coworker “showed up . . . looking for his wife
who was rumored to be having an affair with” De Jardin. After that Villaber stopped talking to De Jardin.
                   Nurse Jennifer Tanqueco related that she “used to car pool” with De Jardin, in the process of
which he told her “he likes to go for married women and he wants relationships with women who are married.” She
overheard him asking (unnamed) coworkers “to go out on dates,” and would “joke with the girls and used nasty
words,” which she didn’t like. She also “overheard him asking another nurse for a kiss and hug,” because
apparently “he likes to hug.” And De Jardin would sometimes come to the east wing of the hospital when he was
assigned to the west wing, and “follow from room to room one of the nurses.” And Tanqueco “overheard laughter
coming from the dictation room” where De Jardin was with two other nurses, one of whom said “that’s disgusting.”
When Tanqueco asked what the commotion was about the “nurse told her that [De Jardin] showed them a picture of
his private parts” on his “cellphone/ipod.”
                   Laureano’s memo also recounted that Ryleen Granada-Madrigal was initially asked to be involved
as an investigator in the De Jardin investigation, but declined because “she didn’t think it was appropriate as [she]
was sexually harassed by [De Jardin] when she was working as a RN nights” in the hospital’s west wing in early
2010. In her role as witness, as distinct from potential investigator, Granada-Madrigal “claim[ed]” that
“occasionally [De Jardin] would flirt,” [¶] say “‘I would like to take you out if you weren’t married,’” [¶] “you’re so
pretty,” [¶] “brag about dates” and “share details of sexual encounters.” However, Granada-Madrigal also said De
Jardin’s “behavior with her stopped when she told him my husband is big and he’s going to kick your ass if you
don’t stop.” Granada-Madrigal also provided the “names of nurses who witnessed his behavior or had themselves
experienced sexual harassment.”


                                                          7
              Other than Sopko’s supposition, however, the hospital presented no
evidence in its motion for summary judgment that Ahmed and De Jardin actually had any
“relationship” other than as coworkers, and in fact each of them would later submit
declarations opposing Kindred’s summary judgment motion averring there was no
collusion between them.
              The manager who actually made the decision to fire De Jardin was not
Sopko, but Kathryn Ross, Kindred’s chief clinical officer. There is evidence that Ross
was exposed to lobbying from Cabra. Ross admitted at her deposition she talked to
Cabra about De Jardin’s firing. Cabra had been on the committee which uncovered the
allegations of harassment from nurses who had never complained about De Jardin before.
Cabra admitted at his own deposition he told Laureano that “half of the time” De Jardin
was only “kidding,” – indicating, of course, that the other half of the time De Jardin
wasn’t kidding. Cabra further related to Laureano – in the presence of the other panelist,
Cook – an experience “many years ago” in which De Jardin had allegedly felt Cabra’s
muscles. Cabra further admitted at his deposition that he agreed with the decision to
terminate De Jardin because he was influenced by Tanqueco’s evidence and because he
himself had “noticed throughout the years with [De Jardin], that he is guilty of that,
sexual harassment.”
              There were additional irregularities in the investigation. Cabra told
Laureano about something that did not have anything to do with sexual harassment at all:
that Gordon had said De Jardin himself, like Gordon, had uttered ethnic slurs against
Kazemi. However, when Kazemi’s deposition was finally taken, Kazemi was
unequivocal that De Jardin had never uttered any racial slurs against him.
              Another irregularity was that notes of original interviews taken by Cook
were discarded or destroyed. Laureano excluded from her report exculpatory evidence
received from one of the nurses, Darlene Villaber (to whom the report attributed adverse
statements about De Jardin) to the effect De Jardin’s hugs were done in a friendly

                                             8
manner. On summary judgment we must draw the inference that Villaber might have
indicated to the committee that De Jardin had been perhaps overfamilar, but Villaber did
not initially think his conduct rose to level of actual sexual harassment. And finally, one
of the notes taken by Laureano of the interview with Ahmed – the witness who was
omitted from Laureano’s report and who was generally favorable to De Jardin – may
have had words whited out in it.2
C. De Jardin’s Termination and Subsequent Litigation
                  Among the items of evidence before the court on the summary judgment
motion was Kindred’s own employee handbook. The handbook says that except for
cases of “serious misconduct or serious job performance deficiencies . . . we take a
performance improvement and progressive correction approach,” which escalates from
verbal counseling to written warnings to disciplinary suspensions and finally separation
from employment. There was no progressive correction for De Jardin, however. He was
soon fired. At his termination interview, Cabra looked into De Jardin’s eyes, smiled, and,
as De Jardin later testified at his deposition, asked De Jardin: “who do I think my enemy
on the day shift” is. The comment would later be taken by De Jardin as confirmation of
Cabra’s ongoing hostility arising from De Jardin’s role in the Gordon investigation.




          2        Here’s our best attempt to reproduce in print what the note reads like. The material in brackets is
our guess of characters that border on illegibility. The “footnotes” that appear are not footnotes, just numbers
inserted in the writing, and we reproduce those numbers as close as we can to the way the actual document appears
in our record:

                 Dictation room 2 weeks ago (Meschelle)3 people
                 Karl he’s aggressive
                          [illegible] phone number                                  Sol
         2 weeks       always went [want?] to smoke with see [me?]
                             might get on [looks like reprints] makes me feel
                                                                                    4     uncomfortable
                  [illegible]       RDI[?]     if I report me of
                                                                   harassment they will
                                                                   never fire me


                                                           9
                Within three months of his termination, De Jardin brought this action
against Kindred Hospital (referred to in the briefs as THC3), Kindred Hospital’s parent
company (KHOI in the briefs) and Lito Cabra personally. Three causes of action were
alleged: Retaliation, wrongful discharge because of the retaliation, and, with special
reference to Cabra, breach of contract. The breach of contract action against Cabra is
based on the allegation Cabra violated a confidentiality agreement signed at the
beginning of the Gordon investigation by leaking De Jardin’s role in the Gordon
investigation to both Gordon himself and to Cabra’s day shift coworkers.
                After enough depositions had been completed to present a truly voluminous
record, Kindred brought a summary judgment motion in June 2012. The motion was
granted. The trial court concluded no evidence of pretext was shown, i.e., De Jardin did
not have sufficient evidence of a “causal link between prohibited motivation and
termination.” In particular, the trial court seemed influenced by the evidence Cabra
himself did not make the actual decision to terminate De Jardin and that grounds existed
beyond Barragan’s complaint on which to fire De Jardin: “The evidence in this case
demonstrates that the hospital conducted an investigation, including several employees,
and that the decisionmakers who approved plaintiff De Jardin’s termination honestly
believed that there had been a pattern of conduct on the part of plaintiff De Jardin,
beyond just the conduct claimed by Ms. Barragan . . . .” The trial judge concluded
Kindred had conducted a “balanced” investigation into the allegation against De Jardin.
The trial court further concluded there was no evidence Kindred’s parent (KHOI)
controls Kindred’s management decisions, and concluded KHOI should be dismissed for
that reason. A timely notice of appeal was filed in October 2012, less than a month after
the judgment.




       3        More formally as THC-Orange County, Inc.


                                                   10
                                     III. DISCUSSION
A. Shifting Burdens, The “McDonnell Douglas Quadrille”
and the Recent Harris Decision
              For about 40 years now, civil rights and retaliation cases have generally
followed the shifting burden paradigm first outlined in McDonnell Douglas Corp. v.
Green (1973) 411 U.S. 792, 802-805. The shifting burden analysis has been likened to a
game of “hot potato” (Green v. Rancho Santa Margarita Mortgage Co. (1994) 28
Cal.App.4th 686, 710) or a dance with carefully designed moves (Shager v. Upjohn Co.
(7th Cir. 1990) 913 F.2d 398, 401 [referring to the “McDonnell Douglas quadrille”].) As
most recently explained by our Supreme Court in Yanowitz, supra, 36 Cal.4th at page
1042, the paradigm plays out this way in retaliation cases: “Past California cases hold
that in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must
show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the
employee to an adverse employment action, and (3) a causal link existed between the
protected activity and the employer’s action. . . . Once an employee establishes a prima
facie case, the employer is required to offer a legitimate, nonretaliatory reason for the
adverse employment action. . . . If the employer produces a legitimate reason for the
adverse employment action, the presumption of retaliation ‘drops out of the picture,’ and
the burden shifts back to the employee to prove intentional retaliation.”
              In the present case, the first two figures of the quadrille are as good as
danced: (1) De Jardin engaged in protected activity (his reluctant testimony in the
Gordon investigation), he was fired, and Cabra’s presence in the investigation which led
to his firing shows a putative “causal link” between the testimony and the firing; and (2)
clearly Kindred had a legitimate nonretaliatory reason to take an adverse action against
De Jardin, i.e., alleged sexual harassment of other coworkers. Accordingly, under the
Yanowitz standard, this appeal ultimately depends on the adequacy of De Jardin’s next



                                             11
step: showing a triable issue of fact as to whether Kindred intentionally retaliated against
him for his earlier testimony.
                  But Yanowitz is not the last word from the Supreme Court on FEHA cases.4
Since Yanowitz was decided, our Supreme Court has handed down Harris v. City of Santa
Monica (2013) 56 Cal.4th 203, and Harris has made it clear the word “because” in these
cases requires only that the jury conclude retaliation was “a substantial motivating factor”
in the termination decision. The bottom line from Harris is that a plaintiff is within the
statute if he or she shows that discriminatory animus was a “substantial motivating
factor” in an adverse employment action. (Id. at p. 226.)
                  While Harris itself was a straight-on case of discrimination under section
12940, subdivision (a) of FEHA – a claim of pregnancy discrimination – there is
no reason Harris should not also apply to retaliation cases under section 12940,
subdivision (h) of FEHA. The only difference between subdivision (a) and subdivision
(h) is that one (subdivision (a)) uses “because of” while the other (subdivision (h)) uses
“because,” and the difference is grammatically immaterial because the retaliation
subdivision is framed in terms of a particular person who has done something (e.g., has
filed a discrimination complaint) as distinct from more generic classification (e.g., fits
into a category).
                  The Harris decision intimated that the traditional McDonnell Douglas
paradigm – the highly stylized quadrille – was ill-suited to most civil rights cases as they
are now litigated in the real world.5 The McDonnell Douglas “framework,” said Harris,
“presupposes that the employer has a single reason for taking an adverse action against


          4       Government Code section 12940 et seq. All statutory references in this opinion are to the
Government Code.
          5       A point adumbrated by our colleagues in the Sixth District in Reeves, supra, 121 Cal.App.4th at
page 111, footnote 11. In comparing the McDonnell Douglas approach to what the Harris court would later
describe as the “mixed motive” approach, Justice Rushing noted: “This model [mixed motive] presents its own
perplexities – beginning with its label – but has the virtue of a more direct and logical method for the assessment of
conflicting proofs of motive than has developed under what Judge Posner calls ‘the McDonnell Douglas quadrille.’”


                                                         12
the employee and that the reason is either discriminatory or legitimate. By hinging
liability on whether the employer’s proffered reason for taking the action is genuine or
pretextual, the McDonnell Douglas inquiry aims to ferret out the ‘true’ reason for the
employer’s action. In a mixed-motives case, however, there is no single ‘true’ reason for
the employer’s action.” (Harris, supra, 56 Cal.4th at p. 215, italics added.)
              In the real world, as Harris intimates, the employer always puts forth a
“legitimate” reason for the action. If it does not, there is no defense. So virtually every
case is a mixed motive case. The employer says the motive was legitimate, the employee
says “No it wasn’t; you had a wrongful motive.” The jury can adopt either of those
positions or decide there were mixed motives.
              Under a Harris paradigm, then, we would conclude that this appeal turns on
whether De Jardin showed a triable issue of fact as to whether retaliatory animus was a –
meaning one of at least two – substantial motivating factor in his firing, as distinct from,
under Yanowitz, whether he showed his firing was intentionally motivated by a desire to
retaliate for his protected activity in testifying against Gordon.
              But we need not go that far. To be clear, we conclude De Jardin showed a
triable issue of fact as to whether Kindred intentionally retaliated against him, and his
case survives summary judgment even under an exclusively Yanowitz analysis. Yanowitz
itself, as we explain below, was also a case where summary judgment was reversed in
circumstances analogous to this one. We need merely point out at this stage that if
Harris were applied, it would confirm our decision. If there is any real difference
between Yanowitz’s proof of “intentional retaliation” and Harris’s “substantial
motivating factor” in a litigated adverse employment decision, the difference redounds to
De Jardin’s benefit.
B. Triable Issue of Actionable Retaliation
              We believe De Jardin has presented evidence demonstrating a triable issue
of fact of intentional retaliation under the Yanowitz standard, and, a fortiori, under the

                                              13
Harris standard. De Jardin presented sufficient evidence on appeal to allow a jury to
conclude Kindred fired him because Cabra steered the investigation of Barragan’s
complaint in a way to put De Jardin in the “‘worst possible light.’” (See Reeves, supra,
121 Cal.App.4th at p. 113, quoting Shager, supra, 913 F.2d at p. 405.)
              That evidence, construed in favor of the plaintiff, gives rise to a reasonably
damning narrative. Cabra’s body language when De Jardin testified against Gordon,
coupled with Cabra’s constant calling De Jardin in for meetings about “every charting”
immediately after De Jardin’s testimony, suggests retaliatory animus on Cabra’s part. De
Jardin’s telling Maria Laureano in the summer months prior to Barragan’s complaint
about his concerns about Cabra’s displeasure with his testimony in the Gordon
investigation establishes that Laureano knew about Cabra’s retaliatory animus.
              Cabra’s extensive role in the investigation of Barragan’s complaint creates
a reasonable inference he was able to implement his retaliatory animus in the course of
that investigation, i.e., there was a causal link between the animus and the firing. Cabra
acted as de facto witness, and communicated directly to the ultimate decisionmaker,
Ross.
              Pretext is found in the nature and conduct of the investigation itself.
Barragan’s charge could not be corroborated, and the allegation she came to work on
crystal meth seriously undercut her credibility. Had the investigation stopped with
Barragan, any grounds to discipline De Jardin, much less fire him, would be ephemeral.
A reasonable trier of fact could find that the investigation was expanded so as to shore up
a predetermined result – predetermined because Cabra wanted to be rid of De Jardin, not
just see him warned. The inference of predetermination, i.e., pretext, is further
strengthened by the absence of any notice to De Jardin. If the incidents related by
Somido, Villaber, Tanqueco and Granada-Madrigal were fully investigated and De
Jardin’s side of the story were aired, it was possible that De Jardin might get off with



                                             14
some lesser discipline than immediate firing, particularly given that none these incidents
had ever before reified themselves into a sexual harassment complaint.
                  We have no idea whether any of these inferences holds up. But they seem
to be sufficient to reach a factual determination.6
C. Cases on Point: Reeves and Yanowitz
1. Reeves
                  Reeves v. Safeway Stores, supra, 121 Cal.App.4th 95 is a case we cannot
meaningfully distinguish from the one before us. We therefore discuss it at some length.
                  The plaintiff in Reeves worked at a grocery store. Female coworkers
complained of sexual harassment at the store, and the plaintiff carried the complaint to
the store manager. The store manager appeared to resent the information, tried to
“‘trivialize’” the matter by denigrating the complaint, and told the plaintiff that unless
women came to him themselves, he didn’t believe there was a problem. (Reeves, supra,
121 Cal.App.4th at pp. 100-101.)
                  One night the plaintiff ended his shift at midnight, but, almost immediately
upon leaving the store, tried to return to use the rest room. A member of the night crew,
who had been instructed not to let anybody into the store after it closed, refused to let him
in. The plaintiff said “This is an emergency. I have to use the rest room.” The night
crew member told him if he came in she’d call security. The evidence was conflicting as
to whether the plaintiff physically shoved his way into the store at that point, or merely
barged in without physical contact with the night crew member. At any rate, after he
entered the store, he spoke to two coworkers, a male (ironically one about whom the
female coworkers had complained) and a female, who asked him to apologize for the


          6       There is no case of which we are aware which insulates disciplinary investigations in FEHA
pretext cases from judicial examination. Cotran v. Rolls Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, was not a
FEHA case, but an implied contract case, and even Cotran requires “notice of the claimed misconduct” (id. at p.
108), which De Jardin assuredly did not receive here.



                                                        15
language he had used when he entered the store. He did so. (Reeves, supra, 121
Cal.App.4th at pp. 101-102.)
              But the night crew member called the police. When they arrived she told
them the plaintiff had pushed her. The next morning, after the store had opened, the
plaintiff sought out the store manager in hopes of telling him about the previous night’s
incident with the night crew member, but the store manager was off. He then began a
vacation. (Reeves, supra, 121 Cal.App.4th at p. 102.)
              Nonetheless, the store manager returned the next day and spoke to the night
crew member. The night crew member told the store manager of the confrontation with
the plaintiff. The store manager discussed the incident with the two employees with
whom the plaintiff had briefly spoken on the night in question. The manager then called
the store’s security department, said the plaintiff was suspected of “pushing” the night
crew member, and asked security to “take a look at it,” given it involved “possibly
workplace violence.” (Reeves, supra, 121 Cal.App.4th at pp. 102-103.)
              The store’s security officer conducted an investigation which eventually
included talking to the plaintiff. The security officer later reported to the district manager
the plaintiff had been abusive, had been under the influence of alcohol, had used
profanity around other employees, and had pushed another employee. The officer
recommended discharge, and the district manager determined to fire the plaintiff. As the
Reeves opinion notes, the district manager made the decision without ever hearing the
plaintiff’s version of the incident. (Reeves, supra, 121 Cal.App.4th at pp. 103-104.)
              After the firing, plaintiff sued the grocery store chain, who successfully
moved for summary judgment. The trial court granted the store’s summary judgment
motion, concluding there was no “causal link” between the employee’s earlier complaints
and his later discharge (id. at p. 105) noting it was undisputed that the district manager
who actually made the discharge decision was unaware of the employee’s previous
complaints about sexual harassment of coworkers.

                                             16
                  The Reeves court reversed the judgment, reasoning that there was a triable
issue of fact as to whether the store supervisor’s animus originating from the employee’s
previous complaints had “skewed” the investigation of the employee’s alleged workplace
violence to reach an unfavorable outcome. (Reeves, supra, 121 Cal.App.4th at p. 119.)
The court noted that by the supervisor’s choice to refer the matter to security, an
unfavorable outcome had been practically “guaranteed.” (Id. at pp. 117-118.)
                  Reeves also squarely held that the fact the manager who made the ultimate
decision to fire the employee was completely free of any retaliatory animus did not, in
and of itself, break any causal link. The Reeves court reasoned, “If a supervisor makes
another his tool for carrying out a discriminatory action, the original actor’s purpose will
be imputed to the tool, or through the tool to their common employer.” (Reeves, supra,
121 Cal.App.4th at p. 113.) Accordingly, the Reeves court reasoned the mere fact the
manager who fired the plaintiff did not know of the plaintiff’s prior complaints about
sexual harassment “could not conclusively negate the element of causation” necessary for
a successful retaliation claim. (Reeves, supra, 121 Cal.App.4th at p. 110.) A significant
part of the court’s rationale was the store supervisor with the possible retaliatory animus
tainted the investigation of misconduct to put it in the “‘worst possible light.’” The
quotations from the Seventh Circuit’s Shager opinion are illustrative in that regard.7




         7        We will repeat them in this footnote:
                  “If a supervisor makes another his tool for carrying out a discriminatory action, the original actor's
purpose will be imputed to the tool, or through the tool to their common employer.


                                                          17
                  The Reeves court noted the store manager’s influence “‘may have been
decisive’” (Reeves, supra, 121 Cal.App.4th at p. 113). A jury could come to the same
conclusion here.
                  Our dissenting colleague posits that Reeves is a case where the store
manager with retaliatory animus triggered the investigation that got the plaintiff fired,
while in the present case the triggering event can be better laid at the feet of either
Barragan who brought the initial complaint, or perhaps Ryleen Granada-Madrigal, who
made the comment she too had been harassed by De Jardin when she was asked to be on
the committee investigating the Barragan complaint. We must respectfully part company
on that detail for two reasons.
                  The minor reason is that the store manager in Reeves no more “triggered”
the investigation than Cabra did here. In Reeves, the night crew member effectively
triggered the investigation by calling the police, just as here Barragan effectively
triggered the investigation by making a complaint of sexual harassment.
                  The major reason is that the main point of Reeves cannot be accurately
characterized as resting on whether an actor harboring allegedly retaliatory animus
triggers a disciplinary investigation, but whether such an actor is in a position to so




                    “The clearest explication of this concept was provided by Judge Posner in Shager v. Upjohn Co.,
supra, 913 F.2d 398. The district court there granted the employer's motion for summary judgment, in part because
the plaintiff had been discharged by decision of a ‘Career Path Committee,’ whose members did not appear to have
acted with discriminatory animus. In reversing, Judge Posner wrote that the committee’s decision to fire the
plaintiff did not necessarily insulate the employer from the age-related animus exhibited by the plaintiff's supervisor
Lehnst; rather the decision ‘was tainted by Lehnst’s prejudice’ because he ‘not only set up Shager to fail by
assigning him an unpromising territory but influenced the committee’s deliberations by portraying Shager’s
performance to the committee in the worst possible light.” [Citation.] In language with distinct parallels to the facts
a jury might find here, Judge Posner explained further: ‘Lehnst’s influence may well have been decisive. The
committee’s deliberations . . . were brief, perhaps perfunctory; no member who was deposed could remember
having considered the issue. A committee of this sort, even if it is not just a liability shield invented by lawyers, is
apt to defer to the judgment of the man on the spot. Lehnst was the district manager; he presented plausible
evidence that one of his sales representatives should be discharged; the committee was not conversant with the
possible age animus that may have motivated Lehnst’s recommendation. If it acted as the conduit of Lehnst’s
prejudice – his cat’s-paw – the innocence of its members would not spare the company from liability.” (Reeves,
supra, 121 Cal.App.4th at pp. 113-114.)


                                                          18
influence the investigation so as to “skew” it to put the employee in the worst possible
light. We do not read Reeves as narrowly as our dissenting colleague.
              DeJung v. Superior Court (2008) 169 Cal. App. 4th 533 supports our
reading of Reeves. DeJung involved the non-retention of a superior court commissioner
in a process that – as one might suppose naturally – involved the presiding judge of that
particular superior court who chaired the executive committee of the court making the
decision. But the presiding judge uttered some pretty clear statements indicating age-bias
(see DeJung, supra, 169 Cal.App.4th at p. 541 [“Ted’s a great guy, but we’re looking for
someone younger.”]). In a decision tracking the lines of both Reeves and Shager, the
appellate court reversed a summary judgment for the superior court in the
commissioner’s age discrimination suit, declaring: “Thus, showing that a significant
participant in an employment decision exhibited discriminatory animus is enough to raise
an inference that the employment decision itself was discriminatory, even absent
evidence that others in the process harbored such animus.” (Id. at p. 551, italics added.)
Clearly Cabra was a “significant participant” in the decision-making process.
2. Yanowitz
              Yanowitz is a little different from Reeves and the case before us, in that
there was no formal investigation of the plaintiff. But other than that difference, the facts
are certainly close enough to convince us that Yanowitz also compels reversal of the
summary judgment in the case before us.
               Yanowitz involved the retaliation claim of a regional sales manager of a
perfume company. An executive from the New York head office came out to visit the
sales manager’s operation in the fall of 1997. The sales manager and the executive
toured the company’s installation at a Macy’s in San Jose. An employee at the
installation was a “dark skinned female sales associate” whose very appearance
displeased the New York executive. He instructed the manager to fire the associate and
get the company “‘somebody hot’” and expressed “a preference for fair-skinned

                                             19
blondes.” (Yanowitz, supra, 36 Cal.4th at p. 1038.) The sales manager, however, asked
for “an adequate justification” before she would fire the associate. The executive
persisted in requesting the sales manager fire the associate on “several subsequent
occasions” and each time the manager required “adequate justification” for the move.
(Ibid.) Significantly, the sales manager never expressly articulated any belief to the
executive that the request to fire the associate was discriminatory. (Ibid.) The “adequate
justification” apparently never came.
              What came, by contrast, was a series of actions by the executive and his
immediate subordinate making the sales manager’s experience at the firm more difficult.
There were “unwarranted negative performance evaluations,” inconvenient meeting
scheduling that made it difficult for her to respond to criticism, public (i.e., in front of
other staff) reprimands by the subordinate, imposition of a new (and apparently
inflexible) travel schedule on her, and – perhaps most tellingly for our purposes – the
subordinate’s solicitation of negative information about the sales manager. (See
Yanowitz, supra, 36 Cal.4th at pp. 1039-1040, 1055.) The sales manager departed on
disability stress leave, did not return, then sued for retaliation. (Id. at p. 1040.) The trial
court granted the erstwhile employer’s summary judgment motion, but the Supreme
Court affirmed the appellate court’s reversal.
              In saying summary judgment was not appropriate, our high court in
Yanowitz said that there was enough presented by the sales manager to allow a jury to
conclude the company’s “stated nonretaliatory grounds” were “pretextual.” (Yanowitz,
supra, 36 Cal.4th at p. 1061.) It was true the company already had some reason to be
displeased with the sales manager even prior to her recalcitrance in following the order to
fire the sale associate. A memo criticized her “‘listening’ skills” and general attitude.
Further, there were complaints from customers, including some corporate customers,
expressing a desire not work with her. (Ibid.) However, the Supreme Court held this
evidence was “not sufficient in itself to support the trial court’s grant of summary

                                              20
judgment.” (Ibid.) There were offsetting positive performance reviews, and she had
even been named sales manager of the year during the year of the alleged retaliatory acts.
(Id. at pp. 1061-1062.) And – what seems to have most animated the high court’s
rationale -- the active solicitation of negative information “strongly suggest[ed]” the
possibility of a “search for a pretextual basis for discipline, which in turn suggest[ed] that
the subsequent discipline imposed was for purposes of retaliation.” (Id. at p. 1062.)
              Our dissenting colleague points out that neither Reeves nor Yanowitz
involved cases where a plaintiff claiming an adverse employment action in retaliation for
protected activity was charged with sexual harassment. But the significance of that point
eludes us. We are aware of nothing in FEHA law which treats adverse action based on
sexual harassment any differently than poor work performance (Yanowitz) or workplace
violence (Reeves). Indeed, the employer in Reeves could no more ignore the night crew
member’s complaint of workplace violence than Kindred could ignore Barragan’s
complaint of sexual harassment. The point is not the legitimacy of the proffered reason –
both poor work performance and sexual harassment are quite legitimate reasons for
adverse action – but the triable issue of retaliatory animus in the application of the
proffered reason to the case at hand.
D. Other Issues
1. Dismissal of KHOI
              De Jardin argues that Kindred’s parent, KHOI, can be held liable as
Kindred’s agent under section 12926, subdivision (d) [employer can himself be agent for
employer].) Evidence in the summary judgment motion established that De Jardin’s W-2
forms lists KHOI as “Agent for THC-Orange County, Inc.” and that KHOI and Kindred
filed unitary California tax returns.
              De Jardin cites no evidence, however, which might show that KHOI was
acting as Kindred’s agent for purposes of Kindred’s employment policies or decisions.
There is no evidence KHOI had anything to do with any of the events of this case. If a

                                             21
supervisor is not an agent under FEHA (Haligowski v. Superior Court (2011) 200
Cal.App.4th 983, 990) it follows a fortiori that a mere corporate parent company is not.
2. Dismissal of Contract Claim Against Kindred and Cabra
              As framed in De Jardin’s original complaint, his third cause of action, for
breach of contract, is predicated on the theory that Cabra (and Cabra as agent for
Kindred) violated the written confidentiality agreements which both he and De Jardin
signed at the beginning of the Gordon and De Jardin investigations. Preliminarily, we
decline to consider De Jardin’s contention the trial court erred in dismissing his breach of
contract action to the degree it is predicated on the breach of oral confidentiality
agreements in addition to the written confidentiality agreements signed at the beginning
of the Gordon and De Jardin investigations. The reason is simple: He never pleaded the
breach of an oral contract and the issue is being raised for the first time on appeal.
              However, regardless of whether a confidentiality agreement was written or
oral, De Jardin’s evidence of a breach of some kind of confidentiality agreement is
insufficient. His best evidence of such a breach consists of the antagonistic text messages
he received from Gordon, which he says were indicative of Cabra having divulged the
substance of De Jardin’s testimony in the Gordon investigation to coworkers. De Jardin
also points to a subjective chill he felt from day shift workers in the aftermath of the
Gordon investigation, plus a statement from another respiratory therapist made just after
his August 2 suspension to the effect “HR’s got Rassi . . . People who go to HR never
return.”
3. Punitive Damages
              The trial court did not rule on Kindred’s separate motion for summary
adjudication of De Jardin’s punitive damages claim. We now are reversing the summary
judgment. As to the motion for summary adjudication concerning De Jardin’s punitive
damage claim, we follow our colleagues in the First District in remanding the case to the
trial court to consider the motion for summary adjudication for the first time at the trial

                                             22
court level. (See State Farm General Ins. Co. v. Wells Fargo Bank, N.A. (2006) 143
Cal.App.4th 1098, 1119-1120 [in case where summary judgment was reversed but
motion for summary adjudication had not been addressed in trial court, declining to
address arguments on summary adjudication motion “for the first time on appeal,” but
rather remanding “the case for the trial court to do so”].) To be clear: We express no
opinion on the issue of punitive damages, which we leave for the trial court to address for
the first time.
                                       III. DISPOSITION
                  The judgment is reversed as to De Jardin’s first and second causes of action
for retaliation and wrongful discharge against THC-Orange County, Inc., which we have
called “Kindred” in this opinion. The judgment is affirmed to the degree it dismisses
Kindred Healthcare Operating, Inc., which we have called “KHOI” in this opinion, and to
the degree it dismisses Lito Cabra from the action entirely, and also to the degree it
dismisses De Jardin’s third cause of action against Kindred for breach of contract.
                  As the overall prevailing party on the major claims of retaliation and
wrongful termination, though, De Jardin shall recover his costs on appeal.




                                                     BEDSWORTH, ACTING P. J.


I CONCUR:



IKOLA, J.




                                                23
FYBEL, J., Dissenting and Concurring.
              I respectfully and strongly dissent from the majority opinion’s reversal of
the summary judgment granted in favor of Kindred Hospital (Kindred) with regard to
Rassi De Jardin’s claim of retaliation under the California Fair Employment and Housing
Act (Gov. Code, § 12900 et seq.) (FEHA), as well as his claim of wrongful discharge in
violation of public policy. The judgment should be affirmed.
              De Jardin’s complaint alleges that his retaliation claim is based on the
termination of his employment. The undisputed evidence shows De Jardin’s employment
was terminated after Kindred received unsolicited information that De Jardin sexually
harassed a female employee, and, in conducting a statutorily mandated sexual harassment
investigation, learned that several other female employees claimed to have been subjected
to physical and verbal conduct of a sexual nature by De Jardin. There is no evidence
showing Kindred’s decision to terminate De Jardin’s employment for sexual harassment
was in any way motivated by retaliatory animus against De Jardin for his cooperation in
an earlier racial harassment investigation of coworker Michael Gordon. Summary
judgment was therefore properly granted.
              The majority opinion:
              —Ignores provisions of FEHA, mandating that employers conduct sexual
harassment investigations;
              —Ignores and directly conflicts with Arteaga v. Brink’s, Inc. (2008) 163
Cal.App.4th 327 (Arteaga), which requires, inter alia, judicial restraint on
second-guessing an employer’s sexual harassment investigation;
              —Unfairly and incorrectly labels Kindred’s sexual harassment
investigation as a “general fishing expedition” (maj. opn., ante, at p. 2) simply because
Kindred investigated each and every instance of sexual harassment that employees had




                                             1
reported to it, in accordance with FEHA’s requirement that Kindred conduct such an
investigation; and
              —Improperly applies the holdings of Reeves v. Safeway Stores, Inc. (2004)
121 Cal.App.4th 95 (Reeves) and Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028
(Yanowitz), when the courts in those cases, unlike the instant case, had before them
evidence showing that retaliatory animus caused an adverse employment action.
              My colleagues, in the majority opinion, claim my focus on termination of
employment for sexual harassment “eludes” them. (Maj. opn., ante, at p. 21.) In the
following discussion, the reader can decide whose analysis—the majority’s or mine—is
elusive.
                                              I.

 FEHA IMPOSES LIABILITY ON EMPLOYERS FOR SEXUAL HARASSMENT THEY KNEW OR
 SHOULD HAVE KNOWN ABOUT AND MANDATES THE INVESTIGATION OF ALL SEXUAL
                   HARASSMENT CLAIMS IN THE WORKPLACE.
              FEHA, at Government Code section 12940, subdivision (j)(1), prohibits
harassment based on, inter alia, sex or gender. Unlike discrimination, which refers to
bias in the exercise of an employer’s official action, harassment “refers to bias that is
expressed or communicated through interpersonal relations in the workplace.” (Roby v.
McKesson Corp. (2009) 47 Cal.4th 686, 707.) Even though FEHA discrimination and
harassment claims are distinct causes of action, “nothing prevents a plaintiff from
proving these two violations with the same (or overlapping) evidentiary presentations.”
(Roby v. McKesson Corp., supra, at p. 709.)
              Harassment is defined in title 2 of the California Code of Regulations,
section 11019, subdivision (b), as including verbal harassment, physical harassment, and
visual forms of harassment (e.g., the display of offensive images). An employer might be
liable for sexual harassment by nonsupervisory employees where the employer, “or its


                                              2
agents or supervisors, knows or should have known of this conduct and fails to take
immediate and appropriate corrective action,” and “shall take all reasonable steps to
prevent harassment from occurring.” (Gov. Code § 12940, subd. (j)(1); Cal. Code Regs.,
tit. 2, § 11019, subd. (b)(3) [harassment by a coemployee “is unlawful if the employer
. . . , its agents or supervisors knows of such conduct and fails to take immediate and
appropriate corrective action” and “[i]f the employer . . . , its agents or supervisors did
not know but should have known of the harassment, knowledge shall be imputed unless
the employer or other covered entity can establish that it took reasonable steps to prevent
harassment from occurring” (italics added)].)
              FEHA requires employers to “take all reasonable steps to prevent
harassment from occurring.” (Gov. Code, § 12940, subd. (j)(1).) One such reasonable
step, which is also “required in order to ensure a discrimination-free work environment,
is a prompt investigation of the discrimination claim.” (California Fair Employment &
Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1024; see
Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021,
1035-1036 [“Prompt investigation of a discrimination claim is a necessary step by which
an employer meets its obligation to ensure a discrimination-free work environment”];
American Airlines, Inc. v. Superior Court (2003) 114 Cal.App.4th 881, 890 [“To carry
out its obligation to prevent discrimination by investigating claims, an employer likely
will need to obtain information from a wrongdoer’s co-workers who were in a position to
witness the misconduct and identify the wrongdoer”].)
              “‘The public policy against sex discrimination and sexual harassment in
employment . . . is plainly one that “inures to the benefit of the public at large rather than
to a particular employer or employee.” [Citation.] No extensive discussion is needed to
establish the fundamental public interest in a workplace free from the pernicious



                                              3
influence of sexism. So long as it exists, we are all demeaned.’” (Harris v. City of Santa
Monica (2013) 56 Cal.4th 203, 224.)
                                            II.

 KINDRED’S SEXUAL HARASSMENT-FREE WORKPLACE POLICY EXPRESSLY WARNED OF
IMMEDIATE EMPLOYMENT TERMINATION FOR ENGAGING IN SEXUAL HARASSMENT; IT IS
  UNDISPUTED DE JARDIN WAS ACCUSED BY SEVERAL COWORKERS OF COMMITTING
               CONDUCT EXPRESSLY PROSCRIBED BY THIS POLICY.
              It is undisputed De Jardin was aware of Kindred’s sexual harassment
policy. He admitted he had read the employee handbook and understood that if he
engaged in sexual harassment, his employment with Kindred could be immediately
terminated. Kindred’s employment handbook contains a policy entitled, “Sexual
Harassment-Free Workplace,” which states in full as follows:
              “Kindred is committed to maintaining a work environment for employees
free from sexual harassment. Sexual harassment includes harassment based on
pregnancy, childbirth or related medical conditions.
              “Sexual harassment is a specific form of harassment, which consists of
unwelcome sexual advances or offensive visual, verbal or physical conduct of a sexual
nature. Sexual harassment may occur when:
              “• submission to or rejection of sexual advances or requests for sexual
favors is made an implicit or explicit condition of employment,
              “• submission to or rejection of sexual advances or requests for sexual
favors is used as a basis for employment decisions, or
              “• an intimidating, hostile or offensive work environment interferes with
the ability to perform job duties.
              “No Kindred supervisory employee may threaten or insinuate that an
individual’s submission to or rejection of sexual advances will in any way influence



                                            4
decisions affecting the individual. No Kindred employee shall create a hostile or
offensive work environment for others.
                “Examples of prohibited conduct include, but are not limited to:
                “• offensive verbal conduct (i.e., sexual comments, sexual jokes, slurs),
                “• sexually suggestive letters, notes, email or voice mail messages,
                “• unwelcome sexual flirtations or advances,
                “• unwelcome comments about a person’s body, discussion of sexual
activities or experiences,
                “• offensive physical conduct (i.e., improper touching, obscene gestures or
assault), or
                “• visual harassment (i.e., leering, sexually explicit photographs, cartoons
or drawings).
                “It is inappropriate for an employee who has supervisory responsibilities to
engage in a close personal, dating or sexual relationship with a person directly or
indirectly reporting to him or her. Kindred prohibits such relationships where it creates a
conflict of interest or negative effect on workforce morale. An employee who has
supervisory responsibilities must advise his or her supervisor of such relationship.
                “Kindred prohibits harassing conduct even if it does not rise to the level of
legally actionable conduct.” (Italics added.)
                It is undisputed that De Jardin was accused by several female coworkers of
engaging in conduct that squarely violates this policy. Contrary to the majority opinion’s
characterization of that conduct as suggesting De Jardin might have merely “been too
familiar with them” (maj. opn., ante, at p. 6), the uncontradicted evidence shows he was
accused of making sexual comments, engaging in unwelcome sexual flirtations or
advances toward female coworkers, making unwelcome comments about their bodies,



                                               5
discussing his sexual activities or experiences, improperly touching them, and showing
them, on at least one occasion, a photograph of his genitalia.
              In an attempt to show the existence of a triable issue of material fact, the
majority opinion identifies, as evidence of retaliatory animus, Kindred’s decision to
terminate De Jardin’s employment for sexual harassment, as opposed to applying a
progressive correction approach to address his conduct. But, as acknowledged by
De Jardin, Kindred’s employee handbook expressly states that employees who have been
found to have violated its policies against discrimination, harassment, or retaliation “are
subject to disciplinary measures, up to and including separation of employment.”
Similarly, Kindred’s “Standards Of Conduct” policy in its employee handbook identifies
“violating Kindred’s policies, including but not limited to conflict of interest, harassment,
discrimination” as “gross or serious misconduct which may result in action up to and
including immediate separation of employment.” (Italics added.) The majority opinion
acknowledges that Kindred’s employee handbook expressly excepts “serious
misconduct” from its “progressive correction approach.” (Maj. opn., ante, at p. 9.)
De Jardin did not produce evidence or argue that Kindred has meted out less severe
punishment for similar conduct. It is undisputed Kindred followed its policy to a tee
when it terminated Gordon’s employment following its investigation regarding
complaints of harassment by Gordon.
                                             III.

 DE JARDIN FAILED TO CARRY HIS BURDEN OF PRODUCING SUBSTANTIAL RESPONSIVE
  EVIDENCE SHOWING THAT KINDRED’S ASSERTED REASON FOR TERMINATING HIS
      EMPLOYMENT FOR SEXUAL HARASSMENT WAS UNTRUE OR PRETEXTUAL.
              As discussed in the majority opinion, Kindred carried its burden of
producing evidence that De Jardin’s employment was terminated for a legitimate
business reason, namely, because Kindred had concluded, following an investigation, that


                                              6
De Jardin had engaged in sexual harassment of female coworkers in the workplace.
Therefore, pursuant to the applicable burden-shifting requirement set forth in Yanowitz,
supra, 36 Cal.4th at page 1042, the presumption of retaliation that arose after De Jardin
made a prima facie showing of retaliation “‘“‘drops out of the picture,’”’ and the burden
shifts back to the employee to prove intentional retaliation.”
              To avoid grant of summary judgment at this stage of the burden-shifting
requirement, De Jardin had the burden of producing “‘“substantial responsive
evidence”’” that Kindred’s reason for terminating his employment was either untrue or
pretextual. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798,
807.) As the California Supreme Court has explained: “[T]here must be evidence
supporting a rational inference that intentional discrimination, on grounds prohibited by
the statute, was the true cause of the employer’s actions. [Citation.] Accordingly, the
great weight of federal and California authority holds that an employer is entitled to
summary judgment 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 discriminatory.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,
361.) In short, De Jardin was required to “‘“do more than establish a prima facie case
and deny the credibility of the [defendant’s] witnesses,”’” but produce specific and
substantial evidence of pretext. (Horn v. Cushman & Wakefield Western, Inc., supra, at
p. 807; see Arteaga, supra, 163 Cal.App.4th at p. 357 [“Where the employee relies solely
on temporal proximity in response to the employer’s evidence of a nonretaliatory reason
for termination, he or she does not create a triable issue as to pretext, and summary
judgment for the employer is proper”].) De Jardin failed to produce the required
evidence.
              The majority opinion’s conclusion De Jardin carried his burden of
producing evidence of intentional retaliation is expressly based on evidence of “the

                                             7
expansion of the investigation of the single sexual harassment complaint made against
De Jardin . . . into a general fishing expedition looking for any arguable sexual
harassment charges that might be lodged against him.” (Maj. opn., ante, at p. 2.) As I
will demonstrate, the majority opinion’s characterization of Kindred’s response to
information it received that certain female employees had been sexually harassed by
De Jardin as a general fishing expedition is neither supported by the record before us nor
by the law, which statutorily mandated Kindred to investigate all claims of sexual
harassment. As a result, Kindred’s required investigation of several complaints of sexual
harassment was not “general,” it was not “fishing,” and it was not an “expedition.”


                                             A.

  Kindred Receives Unsolicited Reports That Several Female Employees Believed They
   Had Been Sexually Harassed by De Jardin; After Conducting a Sexual Harassment
        Investigation, Kindred Decides to Terminate De Jardin’s Employment.
              Initially, I note that De Jardin does not contend that any complaint of sexual
harassment lodged against him had any connection to his participation in the Gordon
investigation or to Lito Cabra, De Jardin’s supervisor, much less that any such complaint
originated with Cabra whom, De Jardin claims, bore him illegal retaliatory animus.
              It is undisputed that on August 2, 2011, Sandra Barragan complained to
Maria Laureano (Kindred’s human resources coordinator) that De Jardin had sexually
harassed her during the prior night shift they worked together. Barragan complained to
Laureano that De Jardin told Barragan that if she had not been married, he would “kiss
those lips,” and wanted take her out. Barragan stated De Jardin also asked her for a hug,
tried to kiss her, and asked if he could “feel her ‘boobies.’”
              Laureano told Barragan she would conduct an investigation. Laureano
asked the director of nursing, Charlotte Cook, and Cabra to participate in interviews.


                                              8
Cook, in turn, asked Barragan’s manager, nurse Rylene Madrigal, to participate in the
investigation. Madrigal, however, declined to participate in the investigation,
volunteering that she felt it would be inappropriate because she had been sexually
harassed by De Jardin a few years earlier. Madrigal stated that De Jardin flirted with her
and said, inter alia, “I would like to take you out if you weren’t married,” and “[y]ou’re
so pretty.” She said that he also bragged to her about his dates and sexual encounters.
Madrigal also volunteered the names of three nursing staff members (Conchita Somido,
Darlene Villaber, and Jennifer Tanqueco) who, she thought, had also been subjected to
inappropriate conduct by De Jardin.
              Once Kindred was informed that other employees felt they too had been
sexually harassed, Kindred had a statutory duty to investigate whether sexual harassment
by De Jardin had occurred in the workplace, regardless of whether those employees had
earlier elected to report that conduct to Kindred. (Gov. Code, § 12940, subd. (j)(1);
Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd., supra, 103 Cal.App.4th at
pp. 1035-1036.) The majority opinion’s position that Kindred’s investigation had to stop
with Barragan is contrary to well-established law, as I have explained. Kindred
interviewed Madrigal who reiterated what she had told Cook.
              During her interview, Villaber stated that about six months earlier,
De Jardin had often asked her out, and, on at least one occasion, asked her out on a “hot
date.” She stated that on one occasion, he walked into the nurses’ lounge and hugged
her, which made her feel uncomfortable. The majority opinion asserts that Villaber had
stated De Jardin’s hugs were done in a friendly manner and that “[o]n summary judgment
we must draw the inference that Villaber might have indicated to the committee that De
Jardin had been perhaps overfamiliar, but Villaber did not initially think his conduct rose
to level of actual sexual harassment.” (Maj. opn., ante, at pp. 8-9.) The majority



                                             9
opinion’s musings on possibilities are speculative. It is undisputed Villaber described
inappropriate conduct of a sexual nature in violation of Kindred’s policy.
              During an interview, Tanqueco stated that when she carpooled with
De Jardin, “on occasion he would tell her that he liked to pursue married women and
revealed his preference for relationships with married women.” Tanqueco further stated
she heard De Jardin asking coworkers on dates, requesting kisses and hugs from them,
and using foul language around women. Tanqueco saw him follow nurses around the
floor. She also stated that on one occasion, “she overheard laughter coming from the
dictation room and one of the nurses saying, ‘Oh my, that’s disgusting.’ When she asked
what the commotion was, she was told that Mr. De Jardin had just shown them a
photograph of his genitals, which he had on his cellphone.”
              In an interview, Somido stated that in early 2010, De Jardin asked her out
on “multiple occasions” even though she responded that she was married. Somido said
De Jardin also made statements to her to the effect of “[o]h baby, you’re so hot today.”
She told him that he should not ask coworkers to go out with him and that it was not nice
or ethical to do so. Somido stated she heard De Jardin bragging about having sexual
intercourse with a “hot” woman whom he dated.
              De Jardin does not challenge, by evidence or by argument, that Kindred
received those complaints. He does not contend the complaints were anything other than
independent complaints; there is no allegation of collusion among the complainants.
Once Laureano was informed (through Cook and Madrigal) of reports that other
employees had complained of conduct that might constitute sexual harassment by
De Jardin, Kindred was on notice of possible sexual harassment in the workplace and was
statutorily required to investigate; it is irrelevant whether the complaining parties had
previously lodged a formal complaint or otherwise come forward with that information.



                                             10
              That De Jardin denies the merit of the sexual harassment claims is
irrelevant to our analysis—the issue presented is not whether Kindred came to the correct
conclusion but whether its conclusion was motivated by retaliatory animus. As explained
in Arteaga, supra, 163 Cal.App.4th at page 343, “‘“[t]he [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. . . . 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.’ . . .”’”
              Our record shows that after conducting interviews, Laureano briefed
Kindred’s regional human resource director, Jeffrey Sopko, on the findings of the
investigation. Laureano and Sopko concluded that although they could not decide
whether Barragan’s complaint was credible, the investigation revealed consistent reports
that De Jardin had engaged in a pattern of inappropriate behavior; and determined that his
employment should be terminated. Kindred’s chief clinical officer, Kathryn Ross, made
the final decision to terminate De Jardin’s employment. Kindred had reports from
several female nurses about De Jardin. The conduct described in those complaints
violated Kindred’s written employment policies. Faced with employee complaints that,
in essence, described in detail how De Jardin was a serial sexual harasser, Kindred took
the only responsible action: Kindred lawfully terminated De Jardin’s employment.
              As discussed ante, De Jardin does not contend that the decision to terminate
his employment violated any policy or practice by Kindred, or that the decision to
terminate his employment was any more severe a resolution following investigation than
what Kindred would have done under the same circumstances with another employee.

                                              11
Citing Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, 108, the
majority opinion, more than once, points out that De Jardin was not given “notice” of the
specific allegations of sexual harassment that were made by the four nurses during their
interviews, which occurred after De Jardin’s interview. The court in Cotran v. Rollins
Hudig Hall Internat., Inc. explained the analysis to be applied by the courts in reviewing
the employment termination of an employee whose employment contract provided for
termination only for good cause. “This is not the standard, however, when an at-will
employee is terminated.” (McGrory v. Applied Signal Technology, Inc. (2013) 212
Cal.App.4th 1510, 1532-1533.) It is undisputed De Jardin was an at-will employee, not
an employee whose employment could only be terminated for good cause or in
accordance with a contract.
              In any event, it is undisputed that De Jardin was interviewed as part of the
investigation, during which Laureano and Cook not only asked De Jardin about
Barragan’s allegations, but also whether he had acted inappropriately with any other
female coworkers by touching them, asking them out, kissing them, hugging them, or
making any inappropriate comments to them. Relying on De Jardin’s deposition
testimony, the majority opinion asserts this fact is disputed. But, at his deposition,
De Jardin admitted that he had been asked about his conduct with other coworkers, but
then backtracked and said he did not remember whether he had been asked about his
conduct with nurses other than Barragan. De Jardin’s initial “[y]es” response and his “I
don’t remember” response do not equal a “no.” Quite simply, De Jardin’s own
deposition responses are insufficient evidence to create a triable issue of material fact as
to whether De Jardin was asked about his conduct with coworkers other than Barragan.
              Neither Cotran v. Rollins Hudig Hall Internat., Inc., supra, 17 Cal.4th 93,
nor any other legal authority, requires an employer to give notice to an at-will employee
of a specific allegation of misconduct uncovered in a FEHA investigation, particularly

                                             12
after the employee generally denied having engaged in any misconduct. Any failure to
provide notice of specific allegations to De Jardin, under those circumstances, does not
create a triable issue of material fact as to retaliatory animus.1
                                               B.

      De Jardin Failed to Produce Evidence Showing the Decision to Terminate His
                         Employment Was Influenced by Cabra.
                  The majority opinion concludes there was “substantial evidence of a causal
link between [Cabra]’s animus and De Jardin’s termination” because of “evidence of
[Cabra]’s displeasure with De Jardin’s testimony in the [Gordon] investigation combined
with his substantial role in the investigation of the sexual harassment complaint against
De Jardin, which allowed him to put De Jardin in the worst possible light.” (Maj. opn.,
ante, at p. 2.)
                  Before explaining why I disagree here, I must address the applicable
standards of causation. At oral argument, counsel for both De Jardin and Kindred
confirmed their positions that the burden-shifting requirement set forth in Yanowitz,
supra, 36 Cal.4th at page 1042, applied to this case, and, thus, De Jardin was required to
produce evidence showing that Kindred’s reason for terminating his employment was a
pretext for retaliation in violation of FEHA. (See Guz v. Bechtel National, Inc., supra, 24

       1
          “The FEHA does ‘not guarantee employees “a stress-free working
environment.”’ [Citation.] ‘[FEHA] does not take away an employer’s right to interpret
its rules as it chooses, and to make determinations as it sees fit under those rules. “[The
FEHA] addresses discrimination.” . . . “[It] is not a shield against harsh treatment at the
workplace.” . . . Nor does the statute require the employer to have good cause for its
decisions. The employer may fire an employee for a good reason, a bad reason, a reason
based on erroneous fact, or for no reason at all, as long as its action is not for a
discriminatory reason. . . . “While an employer’s judgment or course of action may seem
poor or erroneous to outsiders, the relevant question is . . . whether the given reason was
a pretext for illegal discrimination. The employer’s stated legitimate reason . . . does not
have to be a reason that the judge or jurors would act on or approve.”’” (Arteaga, supra,
163 Cal.App.4th at p. 344.)
                                               13
Cal.4th at p. 361 [“the great weight of federal and California authority holds that an
employer is entitled to summary judgment 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 discriminatory”].) Counsel also agreed
that this was not a “mixed-motive” case in which an adverse employment action was
based on a mixture of retaliatory and legitimate motives and in which De Jardin would
have had the burden of proving that illegal retaliation was “‘a substantial motivating
factor/reason’” for his employment termination. (Harris v. City of Santa Monica, supra,
56 Cal.4th at p. 232.) As Justice Mallano of the Court of Appeal, Second Appellate
District, Division One, explained in Arteaga, supra, 163 Cal.App.4th at page 357,
because there is no evidence Kindred had mixed motives (legitimate and illegitimate
reasons for terminating De Jardin’s employment), “we do not decide whether a
mixed-motive analysis applies under the FEHA or in this case.”
              Regardless whether this case is perceived as involving mixed motives, it
does not change the result on this record because there is no evidence any retaliatory
animus on Cabra’s part was in any way a motivating factor or reason for De Jardin’s
employment termination. Significantly, De Jardin does not contend that Laureano, Cook,
Sopko, or Ross bore any retaliatory animus toward him for his participation in the
Gordon investigation. His argument is that Cabra was the one with the retaliatory
animus, and, through Cabra’s participation in the investigation, he was able to steer it to
its conclusion, resulting in De Jardin losing his job. The majority opinion concludes:
“Cabra’s extensive role in the investigation of Barragan’s complaint creates a reasonable
inference he was able to implement his retaliatory animus in the course of that
investigation, i.e., there was a causal link between the animus and the firming. Cabra
acted as de facto witness, and communicated directly to the ultimate decisionmaker,
Ross.” (Maj. opn., ante, at p. 14.)

                                             14
              The majority opinion fails to describe any evidence that supports its
conclusion that Cabra’s role in the sexual harassment investigation was “extensive.” My
review of the record reveals that, as De Jardin’s supervisor, Cabra attended a couple of
interviews. Cabra also told Laureano at some point in time that he thought De Jardin was
kidding half of the time, and, on one occasion, De Jardin had felt Cabra’s muscles,
comments that apparently underlie the majority opinion’s assertion that Cabra was able to
place De Jardin in the “worst possible light.” (Maj. opn., ante, at p. 2.) The majority
opinion points out evidence that Ross “talked to Cabra about De Jardin’s firing.” (Id. at
p. 8.) The majority opinion does not provide any evidence about that conversation—
apparently persuaded by the bare fact that Ross was “exposed to lobbying from Cabra.”
(Ibid.) Such speculation does not create a triable issue of material fact that Cabra had any
impact on the decision in this case. (Horn v. Cushman & Wakefield Western, Inc., supra,
72 Cal.App.4th at p. 807 [noting, “[w]e emphasize that an issue of fact can only be
created by a conflict of evidence. It is not created by speculation or conjecture”]; see
DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 550 [employee must produce
“evidence of a causal relationship between the animus and the adverse employment
action”].)
              Furthermore, the majority opinion’s inferences are at odds with the
Evidence Code and the recent Supreme Court opinion in People v. Davis (2013) 57
Cal.4th 353. In People v. Davis, supra, 57 Cal.4th at page 360, the court explained:
“‘An inference is a deduction of fact that may logically and reasonably be drawn from
another fact or group of facts found or otherwise established in the action.’ (Evid. Code,
§ 600, subd. (b).) However, ‘[a] reasonable inference . . . “may not be based on suspicion
alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.
[¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere
speculation as to probabilities without evidence.” [Citation.]’ (People v. Morris (1988)

                                             15
46 Cal.3d 1, 21 . . . , quoting California Shoppers, Inc. v. Royal Globe Ins. Co. (1985)
175 Cal.App.3d 1, 45 . . . [Morris disapproved on another ground in In re Sassounian
(1995) 9 Cal.4th 535, 543-544, fn. 5 . . . ].)” As in People v. Davis, supra, 57 Cal.4th at
page 360, “the evidence to support the critical inference was lacking.”
              This case is, therefore, materially distinguishable from Reeves, supra, 121
Cal.App.4th at page 100, in which “the supervisor who initiate[d] disciplinary
proceedings” (italics added), which led to the termination of the plaintiff’s employment,
“act[ed] with retaliatory animus” in violation of FEHA. Ironically, in Reeves, the
plaintiff alleged he was retaliated against for bringing female coworkers’ sexual
harassment complaints to a manager’s attention; the manager refused to properly
investigate those complaints. (Reeves, supra, at pp. 105, 100-101.) In Reeves, the
evidence showed that after the plaintiff was involved in an incident in which he pushed a
female coworker out of his way as he tried to quickly get to a bathroom, the manager
escalated the seriousness of the incident by characterizing it as involving “‘possibly
workplace violence’” and “‘obviously a security issue.’” (Id. at pp. 101-103.) The
manager further escalated the matter by referring it to security for investigation, instead
of the human resources department. (Id. at p. 117.) The appellate court noted, “there is
substantial evidence that [the manager] knew such a referral was substantially certain to
result in the dismissal of a 29-year veteran employee” and that he knew “every case he
ever referred to security resulted in dismissal where it involved ‘an allegation of improper
conduct’ comparable to the allegations against [the plaintiff].” (Id. at pp. 117-118, italics
added.)
              Here, there is no evidence Cabra initiated the sexual harassment
investigation of De Jardin, weighed in on the validity of any allegations made against
him, or otherwise escalated the investigation toward the resolution of employment
termination. The only evidence of comments made by Cabra showed he made statements

                                             16
to Laureano that he thought De Jardin was kidding half the time and that years earlier,
De Jardin had felt Cabra’s muscles. The record in Reeves is a far cry from the record in
the instant case.
              This case is also distinguishable from Yanowitz, supra, 36 Cal.4th at
pages 1035, 1038-1039, in which an employee, who refused the directive of her
supervisor’s supervisor to fire an employee for being dark-skinned, suffered adverse
employment actions. The employee produced evidence that her direct supervisor
engaged in the “active solicitation of negative information” about her, at the urging of his
supervisor, which “strongly suggest[ed]” that they were “engaged in a search for a
pretextual basis for discipline, which in turn suggest[ed] that the subsequent discipline
imposed was for purposes of retaliation.” (Id. at p. 1062.)
              Unlike Yanowitz, the evidence in this record shows an employer responding
to female employees’ complaints of sexual harassment by a coemployee, De Jardin.
There is no evidence Kindred’s stated reason to terminate De Jardin’s employment for
serial sexual harassment was pretextual or untrue.
              For all these reasons, I believe the trial court was correct in granting
summary judgment. An analysis of the record shows an employer that conducted a
statutorily mandated investigation of independent complaints by employees of sexual
harassment of them by De Jardin. The evidence shows that, based on those complaints,
De Jardin’s employment was terminated. The record before us contains no evidence of
pretext and the inferences relied on in the majority opinion are speculation and
insufficient to satisfy the statutory test of a triable issue of material fact. The majority
opinion’s legal analysis is in conflict with Government Code section 12940,
subdivision (j)(1) and with Arteaga, supra, 163 Cal.App.4th 327, and the cases cited
therein.



                                              17
             I concur in the majority opinion’s affirmance of the judgment dismissing
from the action: (1) Kindred Healthcare Operating, Inc.; (2) Lito Cabra; and (3) the
breach of contract claim.



                                         FYBEL, J.




                                           18
