Filed 8/24/15 Leduc v. West Anaheim Medical Center CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


LANANH LEDUC,

     Plaintiff and Appellant,                                          G049298

         v.                                                            (Super. Ct. No. 30-2010-00420798)

WEST ANAHEIM MEDICAL CENTER,                                           OPINION

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, Linda S.
Marks, Judge. Affirmed.
                   Lananh Leduc, in pro. per., for Plaintiff and Appellant.
                   Wilson, Elser, Moskowitz, Edelman & Dicker and Dean A. Rocco for
Defendant and Respondent.
                                             INTRODUCTION
                 Appellant Lananh Leduc, who is representing herself on appeal,
misunderstands the role of an appellate court. Having lost her wrongful termination
lawsuit against her employer, respondent West Anaheim Medical Center, after 14 days of
trial, she seeks to retry the case here. Most of her appeal expresses her disagreement with
the trial court’s findings of fact and with the conclusions it drew from the evidence. But
because substantial evidence supports the judgment, we must affirm it.
                 Leduc also appeals from the trial court’s refusal to allow her to amend her
complaint to conform to proof at trial, to assert a claim for breach of the covenant of good
faith and fair dealing. We conclude the trial court ruled correctly, and we affirm the
denial of the motion for leave to amend.
                                                               1
                                                    FACTS
                 Leduc worked for West Anaheim for 22 years, rising to the level of clinical
laboratory scientist III. She oversaw certain aspects of the operation of the hospital’s
blood bank, which had to be staffed around the clock. She routinely received excellent
reviews for her work.
                 In August 2008, West Anaheim instituted a new procedure for employee
access to the hospital and for time keeping. Formerly employees entered by swiping a
badge; they would now have to use a badge plus a fingerprint scan. All employees were
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directed to have their fingerprints registered at Human Resources (HR). Three hospital-
wide e-mail notices in August, September, and October informed employees of the
requirement.


        1
                  As we are required to do, we recite the facts in a manner most favorable to the judgment. (See SCI
California Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549, 552.)
          2
                  It is important to distinguish between registering fingerprints, which was performed at HR to
create each employee’s unique identification algorithm, and scanning or reading fingerprints, which was done on an
independently operating system at each point of entry. As West Anaheim’s CFO explained, the system used the
employee’s fingerprint to create an algorithm, which then assigned a series of numbers to the employee as an
identifier. The system did not store the actual fingerprint.


                                                         2
                 Leduc would not register her fingerprints. She stated she had been the
victim of identity theft through her mortgage company, and she professed to be worried
                                                            3
about the security of the fingerprint database. She contacted her immediate supervisor
and several people in hospital administration to ask questions about the new system, but
none of their responses overcame her resistance to the new procedure. After the
fingerprint-scan system began operating, Leduc’s supervisor had to have her time logged
into the payroll system manually.
                 Finally, the hospital’s administration lost patience with her. She was the
only employee who had refused to register her fingerprints with HR. She was given until
December 18, 2008, to comply. She did not. Hospital administrators first planned to
terminate her that day but changed their minds and decided to give her one more day to
comply. The HR director met with her on the afternoon of December 18, and a letter was
hand delivered to her on December 19, both informing her that she had to register her
prints by her next scheduled shift, which was on December 20. Otherwise the hospital
would consider her refusal a voluntary resignation. Leduc came to the hospital on
December 19, which was her day off. She spoke with the head of HR, who once again
urged her to comply or face termination, but she did not register her prints. She was
therefore considered terminated as of the end of the day on December 19. The
administrators who made the decision to terminate Leduc’s employment were West
Anaheim’s CEO, its HR director, and its CFO.
                 In October 2008, Leduc had taken a three-week medical leave of absence
after having emergency surgery. She was diagnosed with ovarian cancer. When she
returned to work in late October, she did not tell her immediate supervisor that she had
cancer or needed chemotherapy.


        3
                 Several employees had to be “bypassed” from the fingerprint registration requirement because the
machine would not pick up their fingerprints, even after several attempts. Leduc, however, was the only employee
who refused to have her fingerprints registered at all.


                                                        3
                 Although Leduc claimed she told her supervisor on December 12, 2008,
that she would need two months off for cancer treatment, the supervisor denied ever
receiving such information or such a request for a leave of absence, and the trial court
believed the supervisor. The court also found that none of the three administrators who
authorized Leduc’s termination were aware that she had cancer or had requested a
medical leave of absence. They fired her because she refused to register her fingerprints.
                                                                                                         4
                 Leduc’s complaint against West Anaheim stated 13 causes of action.
These were: (1) disability discrimination; (2) medical condition discrimination; (3)
failure to accommodate; (4) failure to engage in interactive process; (5) violation of
California Family Rights Act; (6) California Family Rights Act retaliation; (7) race
discrimination; (8) age discrimination; (9) harassment; (10) retaliation; (11) failure to
take reasonable steps; (12) wrongful termination; and (13) wrongful termination in
violation of public policy. The causes of action for race discrimination, age
discrimination, and harassment were dismissed on summary adjudication.
                 Early in the trial, Leduc moved to amend the complaint to add a cause of
action for breach of the covenant of good faith and fair dealing. The court took the
motion under submission and denied it on the last day of trial.
                 After 14 days of trial in November and December 2011, the court issued a
60-page intended statement of decision, which became the final statement of decision.
Leduc objected to certain aspects of the intended statement, but the court did not consider
the objections because they were filed untimely.
                 The trial court found in West Anaheim’s favor on all causes of action,
crediting its witnesses over Leduc when the testimony conflicted and crediting Leduc’s
deposition testimony when it conflicted with her trial testimony. In particular, the trial



        4
                 Except where noted, all of the causes of action were pleaded as violations of the Fair Employment
and Housing Act (FEHA).


                                                        4
court found that Leduc had been fired for refusing to register her fingerprints, and not for
any discriminatory reason. Leduc has appealed from the judgment.
                  Leduc has asked us to take judicial notice on appeal of various documents.
Because these documents are either irrelevant or not judicially noticeable, or both, we
deny the requests.
                                                 DISCUSSION
                  Although the trial court found in West Anaheim’s favor on all the causes of
action still at issue, on appeal Leduc has identified the court’s rulings on only three
                                       5
causes of action as erroneous. These are discrimination based on disability,
discrimination based on medical condition, and retaliation, all FEHA-based claims. In
addition, she has appealed from the court’s denial of her motion to amend her complaint
to conform to proof to add a cause of action for breach of the covenant of good faith and
fair dealing.
                  We do not write on a blank slate when we review a judgment entered after a
full trial. When an appellant challenges the trial court’s findings of fact, we ascertain
whether substantial evidence supports these findings. “‘[T]he power of an appellate court
begins and ends with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted,’ to support the findings below. . . . [Citation.]” (Bickel v.
City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on other grounds.)
“We view all of the evidence in the light most favorable to the judgment, drawing every
reasonable inference and resolving every conflict in support of the judgment.” (Jonkey v.
Carignan Construction Co. (2006) 139 Cal.App.4th 20, 24.)

         5
                   California Rules of Court rule 8.204(a)(1)(B) requires an appellant’s brief to “[s]tate each point
under a separate heading or subheading summarizing the point, and support each point by argument and, if possible,
by citation of authority[.]” Because Leduc’s arguments are somewhat convoluted, we have ascertained the issues on
appeal from the headings in the argument section of Leduc’s brief.
                   Leduc’s opening brief discusses two additional causes of action: failure to follow a Penal Code
section regarding taking fingerprints and a violation of Civil Code section 51.7. Neither cause of action was
pleaded, and neither was mentioned at trial. We do not consider issues or theories raised for the first time on appeal.
(Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603 (Johnson).)


                                                          5
I.            The FEHA Claims
              A.             Disability discrimination
              Government Code section 12940, subdivision (a), prohibits an employer
from discharging an employee because of a physical disability or medical condition. It
also prohibits discharge based on “mental disability,” which Government Code section
12926, subdivision (j)(1) defines to include “[h]aving any mental or psychological
disorder or condition, such as intellectual disability, organic brain syndrome, emotional
or mental illness, or specific learning disabilities, that limits a major life activity.” To
prevail on a claim of mental disability discrimination, Leduc must first establish that she
suffers from a disability and that she was subjected to an adverse employment action
because of the disability. (See Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)
              Although at trial Leduc focused her attention on her cancer diagnosis, on
appeal she asserts that this claim is based on a mental disability: “fear of identity theft.”
The major life activity limited by her fear was her ability to work.
              Mental disability was not pleaded in the complaint, and mental disability
never came up in trial as a disorder or condition requiring either accommodation or
protection. The sole basis of Leduc’s FEHA disability claim at trial was cancer.
Accordingly, we do not consider her mental disability for the first time on appeal. (See
Johnson, supra, 47 Cal.4th at p. 603 [party may not change theory on appeal]; Yeung v.
Soos (2004) 119 Cal.App.4th 576, 583-584.) In addition, fear of identity theft does not
limit the major life activity of working and therefore does not qualify as a mental
disability under the Government Code. Leduc presented no evidence that she could not
still do her job at the blood bank, even if she was afraid that someone had made off with
her personal information. And registering fingerprints is not a “major life activity.”
              B.             Medical condition discrimination
              Government Code section 12940, subdivision (a), prohibits an employer
from discharging and employee because of a “medical condition,” which section 12926,

                                               6
subdivision (i), limits to cancer or genetic characteristics. A cause of action for medical
condition discrimination requires proof that the employee was subjected to adverse
employment action because of the condition. (Deschene v. Pinole Point Steel Co. (1999)
76 Cal.App.4th 33, 44.)
                  The trial court specifically found that none of the people who authorized
                                                                                             6
Leduc’s termination had any idea she had been diagnosed with cancer. She was fired
because she refused to register her fingerprints. The administrators all testified they
knew nothing about Leduc’s cancer when they decided to terminate her, and she was
fired because of the fingerprint issue. The trial court credited their testimony, and this
substantial evidence supports the court’s conclusion.
                  C.                Retaliation
                  Government Code section 12940, subdivision (h), prohibits discrimination
against an employee “because the person has opposed any practices forbidden under this
part or because the person has filed a complaint, testified, or assisted in any proceeding
under this part.” A cause of action for retaliation requires a plaintiff to plead and prove
“(1) the employee’s engagement in a protected activity, i.e., ‘oppos[ing] any practices
forbidden under this part’; (2) retaliatory animus on the part of the employer; (3) an
adverse action by the employer; (4) a causal link between the retaliatory animus and the
adverse action; (5) damages; and (6) causation.” (Mamou v. Trendwest Resorts, Inc.
(2008) 165 Cal.App.4th 686, 713.)
                  Leduc’s retaliation cause of action fails on two fronts. First, she never
opposed any “practices forbidden” by Government Code section 12940. She never
opposed any type of employment discrimination, filed a complaint, testified, or assisted
in any FEHA proceeding. Second, she was not fired for opposing any practices, filing a
complaint, testifying, or assisting in an FEHA proceeding. The trial court found she was

         6
                  There is one lone sentence in the statement of decision to the contrary, but the repeated statements
contradicting it make it clear that’s a typographical error.


                                                          7
fired because she refused to register her fingerprints with HR, even though she was given
ample opportunity to do so. Because substantial evidence supports this finding, we may
not disturb it.
                  The basic deficiency with all three FEHA causes of action is that Leduc
failed to show causation. For each one, she failed to present sufficient evidence of a
causal link between protected activity and her termination. The trial court credited the
testimony of the West Anaheim witnesses that she was fired for refusing to register her
fingerprints, not because they found out she had cancer or because of any other
discriminatory reason. In fact, the trial court found that none of the administrators who
                                                                      7
authorized her termination even knew she had cancer. This finding is based on
substantial evidence, and we do not disturb such findings on appeal.
                  Leduc was an at-will employee. West Anaheim could fire her for any
reason, no matter how arbitrary, or for no reason, provided the reason was not unlawful.
(See Shapiro v. Wells Fargo Realty Advisors (1984) 152 Cal.App.3d 467, 475, criticized
on other grounds in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 688.)
                  Leduc sued West Anaheim for firing her because of a medical condition,
which would have been unlawful if it had occurred. But whether it should have given her
more chances to register her fingerprints, or should have responded to her worries about
database security in writing, or should have treated her with greater kindness is irrelevant.
The issue before the trial court was whether West Anaheim fired Leduc because she had
cancer, or because she needed a medical leave, or because of any of the other unlawful
employment practices set out in Government Code section 12940. The trial court
determined it did not. Substantial evidence supports the court’s determination. For this
court, that is the end of the inquiry.


         7
                  Leduc quarrels with this finding on appeal, asserting that notwithstanding the court’s contrary
conclusions, her immediate supervisor was involved in the termination process and knew she had cancer. We
cannot make factual findings that contradict the findings made by the trial court.


                                                          8
II.              Leave to Amend
                 After three days of trial, Leduc moved the court for leave to amend to state
a cause of action for breach of the covenant of good faith and fair dealing. The court
denied the motion at the end of trial. The basis for the ruling was that Leduc was an at-
will employee who had no contract with West Anaheim that could include such a
covenant; there was, therefore, nothing to breach. Moreover, any damages Leduc could
have suffered from such a breach were already incorporated into the other causes of
action, so an amendment would simply duplicate what was already at issue.
                 Every contract includes an implied covenant of good faith and fair dealing
– a promise that neither party will do anything to frustrate the right of the other to receive
the agreement’s benefits. This implied covenant protects only the contract’s express
terms; it does not impose additional duties. (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 349-350; Carma Developers (Cal.), Inc. v. Marathon Development
California, Inc. (1992) 2 Cal.4th 342, 373; McClain v. Octagon Plaza, LLC (2008) 159
Cal.App.4th 784, 806; Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137
Cal.App.4th 466, 474, 476.)
                 It is and was undisputed that Leduc was an at-will employee. (See Lab.
Code, § 2922.) Although not completely clear, it appears from the record that Leduc
                                                                                                          8
sought to impose conditions on West Anaheim based on an employee handbook. She
seemed to be claiming that West Anaheim had to follow a four-step procedure –
“Grievance Procedure (Conflict Resolution)” – which included written reports and a
progression up the administrative hierarchy, before she could be fired.




        8
                 The motion for leave to amend is not part of the record. Neither is the court’s tentative ruling on
the motion.
                The employee handbook is part of the record. The second paragraph on the first page states, “This
Employee handbook is not a contract and the information contained herein is not to be considered contractual
promises.” The handbook also refers several times to the at-will nature of the employment at West Anaheim.


                                                         9
              The court ruled instead that the handbook did not cover this unique
situation. Leduc’s failure to comply with the fingerprint directive was not a “conflict” or
a “condition . . . causing problems on the job,” to which the handbook’s conflict
resolution procedure would apply. The conflict resolution procedure is not tied to
employee discipline, which had a separate system of warnings and write-ups. The
“Performance Counseling and Corrective Action” portion of the handbook, which sets
out the “usual performance counseling procedure,” clearly states that an employee may
be subject to immediate dismissal if the circumstances warrant and that the counseling
procedure does not alter the at-will nature of employment at the hospital.
              Even if the provisions of the handbook could be considered to assume
contractual force, nothing in the handbook obligates West Anaheim to go through any
particular process before firing an employee. It does not condition employee termination
on the completion of some procedure. The implied covenant cannot impose duties
contrary to those expressly provided (Halvorsen v. Aramark Uniform Services, Inc.
(1998) 65 Cal.App.4th 1383, 1988), and the handbook makes it clear that an employee
can be fired without going through the “usual performance counseling procedure.” (See
Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 367 [progressive
discipline procedure does not negate at-will employment].)
              On appeal, Leduc asserts that the covenant of good faith and fair dealing
was breached even if she was an at-will employee, because her December termination
made her ineligible for a matching 410(k) contribution for 2008. This was not a subject
broached at trial; from the record before us, the concentration appears to be on West
Anaheim’s failure to follow the grievance procedure.
              In any event, Leduc presented no evidence that her termination had
                                                             9
anything to do with matching 401(k) contributions. As near we can tell from this record,

        9
              Leduc’s damages expert testified that she was not receiving 401(k) matching contributions in
2008.


                                                    10
she made no such offer of proof when the motion to amend was being considered. We
cannot consider for the first time on appeal a theory not tested in the trial court.
                                       DISPOSITION
              The judgment is affirmed. Appellant’s request for judicial notice is denied.
Respondent is to recover its costs on appeal.




                                                   BEDSWORTH, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




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