Filed 7/26/16 Powe-Brown v. Kaiser Found. Hospitals CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ONE


JANET D. POWE-BROWN,
         Plaintiff and Appellant,
                                                                     A143681
v.
KAISER FOUNDATION HOSPITALS                                          (Alameda County
et al.,                                                              Super. Ct. No. RG11594627)
         Defendants and Respondents.


         Plaintiff Janet D. Powe-Brown filed this action against her current employer,
Kaiser Foundation Hospitals (Kaiser), as well as her supervisors Veronica Ciaccio,
Christopher Lomboy, and Kathy McCrarey, claiming defendants had unlawfully
discriminated against her because of her race and disability, and had engaged in other
wrongful employment practices. Plaintiff asserted a total of 14 causes of action, all of
which were resolved against her after the trial court granted defendants’ motions for
summary judgment. On appeal, she asserts she raised triable issues of fact on her claims
and therefore summary judgment was granted in error. We affirm.
             FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I.     Factual Background1
       Plaintiff, an African-American, has been employed as a staff nurse by Kaiser since
1993. Plaintiff advanced from Staff Nurse III to the highest nurse level—Staff Nurse
IV—on July 1, 2008, and has retained this status since that time.
       Plaintiff voluntarily transferred from Kaiser’s Oakland facility to Kaiser’s Antioch
facility in October 2007, and continues to work there. When she first transferred to
Antioch, she was a Staff Nurse III in the operating room. She reported to McCrarey, who
reported to Lomboy. McCrarey was eventually replaced by Ciaccio.
       On June 3, 2008, Lomboy received an e-mail message from another staff nurse
complaining that plaintiff showed a persistently negative attitude and had refused to
communicate with certain staff members. Reportedly, her behavior was having a
negative impact on the entire department. In her declaration in opposition to defendants’
summary judgment motion, plaintiff denied these allegations.
       Plaintiff received a performance evaluation in March 2009. The evaluation stated
that she needed improvement in the area of cooperation and teamwork. Specifically, it
noted she needed to improve on her communication with coworkers to avoid
communication breakdowns. It also noted that she sometimes displayed uncooperative
behavior when working as part of a group or a multi-disciplinary team. For example,
plaintiff had reportedly been counseled regarding her refusal to take meal breaks in a
timely manner, a situation that negatively impacted her coworkers. Additionally, she did
not always comply with instructions or management direction. She was also rated as
needing improvement with respect to giving and receiving constructive feedback.
Overall, however, the review found that she was meeting expectations.2
       On February 5, 2010, plaintiff attended a meeting during which she received a
verbal warning regarding her behavior and attitudes towards management and staff. The

       1
        As we explain below, plaintiff has waived any challenge to the trial court’s many
evidentiary rulings. We omit evidence found by the trial court to be inadmissible.
       2
           Plaintiff received a substantially similar performance evaluation in March 2010.

                                              2
problems noted were similar to the ones mentioned in the March 2009 performance
review.
        At some point, plaintiff filed a “corporate compliance complaint,” alleging she
was being subjected to constant unfair treatment, harassment, and accusations that were
made against her without investigation. In her opening brief, plaintiff asserts she was
held to an unfair standard of conduct because defendants “perceived her to be the
stereotypical ‘angry Black woman.’ ” At her deposition, however, plaintiff could not
recall if Lomboy had ever made any racially derogatory comments in her presence, nor
had she received any e-mail messages from him containing any racially derogatory or
offensive content. Additionally, no one had ever told her that they heard Lomboy make
such statements. She also testified that McCrarey had never said anything racially
derogatory or offensive in her presence, though McCrarey had yelled at her more than
once.
        Plaintiff filed Equal Opportunity Employment Commission (EEOC) charges on
September 7, 2010, alleging discrimination and retaliation based on race.
        On September 9, 2010, plaintiff was observed as having fallen asleep in the
operating room. At the time, she was supposed to have been “shadowing” one of the
surgical nurses. At her deposition, she stated that she did not recall sleeping, but
acknowledged she was accused of having done so by persons who were in the operating
room with her. She conceded she might have fallen asleep, even though she did not
remember doing so. In January 2011, she received a one-day suspension for this
incident. At her deposition she said she had no idea whether the suspension was racially
motivated.
        On February 2, 2011, plaintiff suffered a cerebral aneurysm. She took a six-month
medical leave of absence and returned to work part-time in August 2011. She resumed
her full duties as an operating room nurse in December 2011.
        Plaintiff filed another EEOC charging document on April 1, 2011.




                                              3
       A. The Action Is Commenced
       On September 8, 2011, plaintiff filed a complaint against defendants. The
complaint contains 14 causes of action: (1) racial discrimination, (2) harassment,
(3) hostile work environment, (4) retaliation (two causes of action), (5) disability
discrimination, (6) violation of Labor Code section 1102.5, (7) violation of public policy,
(8) violation of article 1, section 8 of the California Constitution, (9) constructive
termination in violation of public policy, (10) intentional infliction of emotional distress,
(11) failure to accommodate, (12) failure to engage in interactive process, and
(13) defamation.
       On May 9, 2014, Kaiser moved for summary judgment, or summary adjudication
in the alternative, as to 13 of the 14 claims.3 Kaiser argued, in part, that plaintiff lacked
substantial evidence to show its actions were a pretext for discrimination or retaliation. It
also asserted there was no evidence that she was ever subjected to an adverse
employment action. Plaintiff opposed the motion, arguing she had repeatedly been
subjected to adverse actions, and asserting there were triable issues of fact as to her
claims of pretext.
       On June 20, 2014, the individual defendants also moved for summary judgment.
       On September 8, 2014, after sustaining numerous objections to plaintiff’s evidence
submitted in opposition, the trial court ruled in defendants’ favor on the motions for
summary judgment. The court struck declarations containing “me too” allegations from
several of plaintiff’s coworkers, as well as much of the evidence contained in plaintiff’s
own 25-page declaration. The court then found Kaiser’s evidence showed its actions
were based on legitimate, nondiscriminatory considerations, and concluded plaintiff had
not produced any evidence of pretext. Accordingly, the court granted the motion for
summary judgment for Kaiser on these claims, as well as on the claims brought against
the individual defendants. This appeal followed.


       3
           The claim for defamation was brought against the individual defendants only.



                                               4
                                        DISCUSSION
I.     Standard of Review
       A summary judgment motion may be granted only if there is no triable issue of
material fact and the party is entitled to a judgment as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c).) A defendant moving for summary judgment has the burden of
presenting evidence that negates an element of plaintiff’s claim. Or a defendant may
show that the plaintiff does not possess and cannot reasonably expect to obtain evidence
needed to support an element of the claim. (Miller v. Department of Corrections (2005)
36 Cal.4th 446, 460; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) If the
defendant makes this showing, the burden shifts to the plaintiff to set forth “specific
facts” showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c,
subd. (p)(2).) We review de novo the trial court’s grant of summary judgment. (Hughes
v. Pair (2009) 46 Cal.4th 1035, 1039; Lonicki v. Sutter Health Central (2008) 43 Cal.4th
201, 206 (Lonicki).) Our Supreme Court has stated, “[A]ny doubts as to the propriety of
granting a summary judgment motion should be resolved in favor of the party opposing
the motion.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535; accord Miller v. Bechtel
Corp. (1983) 33 Cal.3d 868, 874.)
II.    Plaintiff Failed to Challenge Evidentiary Rulings on Appeal
       Before addressing whether the trial court properly granted summary judgment in
favor of defendants, we must determine what portion of plaintiff’s proffered evidence
may be considered on appeal. In reviewing the trial court’s summary judgment ruling,
we generally consider all evidence set forth in the moving and opposing papers except
those matters as to which objections were made and sustained. (Code Civ. Proc., § 437c,
subd. (c); Lonicki, supra, 43 Cal.4th at p. 206.) In addition, a party who fails to “attack
the [trial court’s evidentiary] rulings on appeal . . . forfeit[s] any contentions of error
regarding them.” (Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th
35, 41; see also Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014–1015 [party forfeits
“any issues concerning the correctness of the trial court’s evidentiary rulings” by failing
to “challenge the trial court’s ruling sustaining . . . objections to certain evidence offered


                                               5
in opposition to the summary judgment motion”].) Accordingly, where an appellant does
not challenge a trial court’s evidentiary rulings excluding certain evidence on a motion
for summary judgment, “we exclude this evidence from our review of the summary
judgment motion.” (Wall Street Network, Ltd. v. New York Times Co. (2008)
164 Cal.App.4th 1171, 1181.)
       Rather than address the trial court’s evidentiary rulings, which we have described
above, plaintiff sidesteps them and relies on much of the excluded evidence in her
opening brief. While she claims the court abused its discretion by “ignoring” the “me
too” evidence contained in her coworkers’ declarations, her opening brief does not
contain a coherent legal analysis addressing the reasons why the court deemed this
evidence to be inadmissible.4 She does not address any specific objections, nor does she
explain why the trial court abused its discretion in sustaining them. We therefore
consider the evidence to have been properly excluded and it cannot serve as a basis for
review on appeal. (Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1196; Roe
v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1113–1114.) Accordingly, we
predicate our analysis of the summary judgment ruling on the evidence admitted in the
trial court and disregard plaintiff’s many references to the evidence to which defendants’
objections were sustained.
III.   Legal Framework
       While plaintiff asserted multiple causes of action in her compliant, the thrust of
her lawsuit is founded on employment discrimination. In an employment discrimination


       4
          While plaintiff attempts to contest the trial court’s evidentiary rulings in her
reply brief, she forfeited any challenge by failing to raise it in her opening brief.
“ ‘ “Obvious considerations of fairness in argument demand that the appellant present all
of his points in the opening brief. To withhold a point until the closing brief would
deprive the respondent of his opportunity to answer it or require the effort and delay of an
additional brief by permission. Hence the rule is that points raised in the reply brief for
the first time will not be considered, unless good reason is shown for failure to present
them before. . . .” ’ ” (Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095,
1115.) Plaintiff has not offered any justification for her failure to address this point in her
opening brief.

                                              6
case, the employer, as the party seeking summary judgment, has the initial burden to
present admissible evidence showing either that one or more elements of the plaintiff’s
prima facie case is lacking or that an adverse employment action was based upon
legitimate, nondiscriminatory factors. (Code Civ. Proc., § 437c, subd. (p); Caldwell v.
Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203 (Caldwell).) In meeting
its initial burden the employer need not demonstrate that the plaintiff cannot prove a
prima facie case if the employer can set forth admissible evidence of its reasons,
unrelated to unlawful discrimination, for the adverse employment action. (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 357.) If the employer meets its initial burden in this
manner, the plaintiff then has the burden to produce “substantial evidence that the
employer’s stated nondiscriminatory reason for the adverse action was untrue or
pretextual, or evidence the employer acted with a discriminatory animus, or a
combination of the two, such that a reasonable trier of fact could conclude the employer
engaged in intentional discrimination.” (Hersant v. Department of Social Services (1997)
57 Cal.App.4th 997, 1005.)
       The plaintiff must do more than raise the inference that the employer’s asserted
reason is false. “[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it
is shown both that the reason was false, and that discrimination was the real reason.” (St.
Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 515; Hicks v. KNTV Television, Inc.
(2008) 160 Cal.App.4th 994, 1003.) If the plaintiff fails to produce evidence from which
a reasonable fact finder could infer that the employer’s true reason was discriminatory,
the employer is entitled to summary judgment. (Caldwell, supra, 41 Cal.App.4th at
p. 203.)
IV.    Adverse Employment Action
       Defendants assert the trial court correctly found that plaintiff could not establish a
prima facie case of discrimination because she failed to show that the actions she
complained of qualify as “adverse employment actions” under the Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12900 et seq.).



                                              7
       “[T]o be actionable, an employer’s adverse conduct must materially affect the
terms and conditions of employment.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1051, fn. 9 (Yanowitz).) “[T]he determination of whether a particular action or
course of conduct rises to the level of actionable conduct should take into account the
unique circumstances of the affected employee as well as the workplace context of the
claim.” (Id. at p. 1052.) “[T]he phrase ‘terms, conditions, or privileges’ of employment
must be interpreted liberally and with a reasonable appreciation of the realities of the
workplace in order to afford employees the appropriate and generous protection against
employment discrimination that the FEHA was intended to provide.” (Id. at p. 1054.)
       The protections against discrimination in the workplace therefore are “not limited
to adverse employment actions that impose an economic detriment or inflict a tangible
psychological injury upon an employee.” (Yanowitz, supra, 36 Cal.4th at p. 1052.)
Rather, FEHA “protects an employee against unlawful discrimination with respect . . . to
. . . the entire spectrum of employment actions that are reasonably likely to adversely and
materially affect an employee’s job performance or opportunity for advancement in his or
her career.” (Id. at pp. 1053–1054.) “[T]here is no requirement that an employer’s
retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging,
injuries.” (Id. at p. 1055.) Thus, “it is appropriate to consider plaintiff’s allegations
collectively under a totality-of-the-circumstances approach.” (Id. at p. 1052, fn. 11.)
       In Yanowitz, the court found the plaintiff had suffered adverse employment
activity where “[m]onths of unwarranted and public criticism of a previously honored
employee, an implied threat of termination, contacts with subordinates that only could
have the effect of undermining [the] manager’s effectiveness, and new regulation of the
manner in which the manager oversaw her territory did more than inconvenience [the
plaintiff]. Such actions, which for purposes of this discussion we must assume were
unjustified and were meant to punish [the plaintiff] . . . , placed her career in jeopardy.
Indeed, [the manager] so much as told [her] that unless there were immediate changes,
her career . . . was over. Actions that threaten to derail an employee’s career are
objectively adverse . . . .” (Yanowitz, supra, 36 Cal.4th at p. 1060.)


                                               8
       While it is true that plaintiff was not fired or demoted, she did receive a one-day
suspension following the sleeping incident in the operating room. Additionally, critical
assessments of certain aspects of her job performance were placed in her personnel file.
Viewing the evidence in a light most favorable to plaintiff, we conclude she sufficiently
demonstrated that she suffered adverse employment actions.
V.     There Are No Triable Issues of Fact as to Discrimination or Retaliation
       In her complaint, plaintiff alleged that defendants’ actions were motivated by
discriminatory animus against African Americans.5 We conclude defendants presented
substantial admissible evidence to show their actions were based on legitimate reasons
unrelated to plaintiff’s race.
       For example, on one occasion plaintiff had refused to follow Ciaccio’s directions
to transport a patient from the emergency room to the operating room for an urgent
medical procedure. The sleeping incident described earlier in this opinion occurred about
four months later, leading to plaintiff’s one-day suspension. Additionally, Kaiser
presented evidence showing plaintiff at times failed to cooperate with her coworkers and
supervisors, an issue that Kaiser attempted to address in her performance evaluations.
We conclude defendants produced legitimate reasons for the adverse employment actions
alleged by plaintiff. This shifted the burden back to plaintiff to show a triable issue of
fact on whether Kaiser’s articulated reasons were untrue and pretextual.
       Plaintiff relies on Johnson v. United Cerebral Palsy/Spastic Children’s
Foundation (2009) 173 Cal.App.4th 740, a pregnancy discrimination case brought under
the FEHA. The plaintiff in Johnson introduced “me too” declarations provided by
employees who worked for the same employer. (Id. at p. 744.) The Court of Appeal held
that the declarations constituted substantial evidence requiring reversal of judgment. (Id.
at p. 745.) Plaintiff asserts that, as in Johnson, “[t]he disputed material facts offered by
plaintiff in her declaration coupled with the declarations provided by her co-workers,




       5
           We address plaintiff’s claim of disability discrimination below.

                                               9
constitute substantial evidence that created triable issues of fact sufficient to defeat
KAISER’s motion for summary judgment/summary adjudication.” Not so.
       Preliminarily, as defendants correctly observe, plaintiff has waived her argument
because her opening brief entirely fails to address the evidence defendants submitted in
support of their motions for summary judgment. In fact, her opening brief’s statement of
facts essentially mirrors the declaration she filed below in opposition to defendants’
motions. Where, as here, the substantial evidence test applies, “[a]n appellant . . . who
cites and discusses only evidence in her favor fails to demonstrate any error and waives
the contention that the evidence is insufficient to support the judgment.” (Rayii v. Gatica
(2013) 218 Cal.App.4th 1402, 1408, italics added.) Plaintiff’s decision to rely
exclusively on her own declaration and the “me too” declarations of her coworkers in her
opening brief operates as a waiver of any challenge based on claimed insufficiency of the
evidence.
       Additionally, as we have already noted above, plaintiff failed to acknowledge in
her opening brief that almost all of her coworker’s declarations, and substantial portions
of her own declaration, were deemed inadmissible by the trial court. She also failed to
provide any reasoned argument or authority for the proposition that the court erred in
sustaining defendants’ evidentiary objections to these declarations. Instead, she
mischaracterizes the court’s actions: “The trial court did not consider the [“me too”]
declarations in its ruling on any of the four MSJs; the declarations were introduced by
plaintiff but the documents were either discounted at best or completely ignored at
worst.” After excising the inadmissible content that she relies upon in her brief, we are
left with only plaintiff’s subjective, conclusory allegations as to defendants’ alleged
discriminatory and retaliatory motives. This is not enough to create a triable material
issue of fact.
       We further note that we are not obliged to cull the record for plaintiff’s benefit in
order to attempt to uncover the requisite triable issues. While our review is de novo, as
with an appeal from any judgment it is the appellant’s responsibility to discharge his or
her duty to affirmatively demonstrate error and therefore to point out to this court the


                                              10
triable issues the appellant claims are present. (Reyes v. Kosha (1998) 65 Cal.App.4th
451, 466, fn. 6.) “Issues do not have a life of their own: if they are not raised or
supported by argument or citation to authority, we consider the issues waived.” (Jones v.
Superior Court (1994) 26 Cal.App.4th 92, 99.)
       We conclude that, because plaintiff did not submit substantial, admissible, and
responsive evidence from which a trier of fact could have found Kaiser’s articulated
reason for its disciplinary actions was merely a pretextual smokescreen to obscure that
the actual reasons were based on plaintiff’s race, the trial court correctly granted
defendants’ motions for summary judgment on her claims alleging racial discrimination.
Our conclusion disposes of all of plaintiff’s race-based causes of action.

VI.    The Trial Court Properly Granted Summary Judgment As To The Remaining
       Claims
       A. Disability Discrimination
       Plaintiff’s sixth cause of action appears to be based on discrimination and
retaliation to which she was allegedly subjected after she went on disability leave
following her cerebral aneurysm. The trial court found plaintiff had “not submitted
evidence in this case to support her claim that she suffered from a disability or that
[Kaiser] subjected her to an adverse employment action because of her disability. . . .
Although Plaintiff missed approximately 6 months of work in 2011 due to a cerebral
aneurysm, she was ultimately able to return to work with restrictions in August 2011, and
without restrictions in December 2011. Plaintiff was returned to her position as
Registered Staff Nurse IV.”
       In challenging this ruling, plaintiff fails to discuss the legal standards for
determining whether she had a disability and whether Kaiser failed to accommodate her
disability or engage in an interactive process. In fact, in her opening brief she fails to cite
to any legal authority at all in support of her claim of error. We conclude plaintiff has
forfeited her argument by failing to provide legal analysis regarding the trial court’s
alleged errors and by failing to cite legal authority. (Los Angeles Unified School Dist. v.
Casasola (2010) 187 Cal.App.4th 189, 212 [failure to provide legal argument forfeits


                                              11
issue on appeal]; People v. Stanley (1995) 10 Cal.4th 764, 793 [if a point does not include
legal analysis, the court may pass it as waived]; Cal. Rules of Court, rule 8.204(a)(1)(B)
[support points with argument and legal authority].) For the same reason, her related
claims for failure to accommodate and failure to engage in interactive process also fail.
       B. Other Causes of Action
       Plaintiff’s arguments with respect to her causes of action for violation of Labor
Code section 1102.5 and violation of public policy are based on the same arguments that
she makes in support of her claim for retaliation under the FEHA. As discussed above,
she failed to demonstrate that issues of material fact exist on whether defendant’s actions
were a pretext for retaliation. Thus, summary judgment was properly granted as to these
causes of action.
       The trial court also granted summary judgment on plaintiff’s causes of action for
violation of article I, section 8 of the California Constitution, constructive termination,
and intentional infliction of emotional distress, on the ground that she failed to oppose
defendants’ motions on these claims. On appeal, plaintiff merely asserts that she did, in
fact, refute defendants’ evidence and offer rebuttal evidence below. She fails, however,
to cite to any legal authority pertaining to these causes of action. We again deem the
arguments waived.
       Finally, because we have concluded summary judgment was proper as to all of
plaintiff’s causes of action, we need not address her argument that the trial court erred in
striking her claim for punitive damages.
                                      DISPOSITION
       The judgments are affirmed.




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                                 _________________________
                                 DONDERO, J.


We concur:


_________________________
MARGULIES, Acting P.J.


_________________________
BANKE, J.




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