Filed 12/12/19; certified for partial publication 1/13/20 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Calaveras)
                                                          ----




CARLA ST. MYERS,                                                                     C085980

                  Plaintiff and Appellant,                                   (Super. Ct. No. 15CV41238)

         v.

DIGNITY HEALTH et al.,

                  Defendants and Respondents.




         Plaintiff Carla St. Myers worked as a nurse practitioner at a rural clinic that was
part of a medical center owned and operated by defendant Dignity Health. During the
three years she worked there, she submitted over 50 complaints about working conditions
and was also the subject of several investigations based on anonymous complaints. All
the investigations concluded the complaints against St. Myers were unsubstantiated and
no action was taken against her. She found another job and resigned.




                                                           1
       Claiming her resignation was a constructive termination due to intolerable
working conditions, St. Myers sued Dignity Health and Optum360 Services, Inc.; the
latter was a company that provided revenue cycle services to Dignity Health. The
complaint set forth three causes of action for retaliation under various statutory
provisions and constructive discharge in violation of public policy (see Tameny v.
Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178). It sought both general and punitive
damages. The trial court granted the separate motions of Dignity Health and Optum360
for summary judgment and St. Myers appeals from the subsequent judgments.
       As to Optum360, we find St. Myers failed to establish a triable issue of material
fact that Optum360 was her employer, a prerequisite under the pleadings for all her
claims. As to Dignity Health, we find St. Myers failed to raise a triable issue of fact as to
any adverse employment action. Accordingly, we affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       St. Myers’s Employment at MTMC
       Dignity Health is a national health care system, consisting of more than 40
hospitals and care centers, including Mark Twain Medical Center (MTMC). MTMC is a
rural access hospital with five rural health clinics, including clinics at Valley Springs and
Angels Camp. Prior to 2012, MTMC was a division of Catholic Healthcare West. In
about 2012, Catholic Healthcare West became Dignity Health.
       Beginning in December 2013, Optum360 provided end-to-end revenue cycling
services to MTMC. These services included scheduling, patient registration, health
information management such as coding and transcription, billing, and collections.
Optum360 provides MTMC with software and staff to teach best practices in scheduling,
billing and collections. Four former employees of Dignity Health, including Mari
Valentine, became Optum360 employees and had essentially the same jobs.
       St. Myers is a nurse practitioner. She and her then significant other Dr. Steven
Mills began working at MTMC in 2011, first at the Valley Springs clinic and six months

                                              2
later at the Angels Camp clinic. They claimed there was an agreement with MTMC that
they would work at the same clinic, but there was nothing in writing about this alleged
promise. St. Myers’s employment offer included an incentive bonus of $20.50 for each
patient she saw above 16 patients a day. Beginning in early 2012, St. Myers began to
complain about working conditions and what she perceived to be patient safety and care
issues.
          In the fall of 2012, St. Myers was the subject of three investigations. In the first
St. Myers was investigated for improper access of patient medical records. The
accusations were found to be unsubstantiated. MTMC had a complaint hotline through
which employees could make anonymous complaints. In September there was an
anonymous complaint that St. Myers and Mills were engaging in inappropriate behavior
in the workplace. The complaint was investigated and found unsubstantiated. The third
investigation was in response to anonymous accusations of drug addiction and other
misuse of drugs by St. Myers and Mills. The Board of Nursing investigated and the
complaint was found to be unsubstantiated. Dignity Health took no action against St.
Myers as a result of any of these investigations.
          On September 5, 2014, St. Myers sent MTMC a letter of resignation, giving two
weeks’ notice. In the letter she stated: “I feel it is in both my professional and personal
interest to move forward with pursuing other career opportunities.” At that time, she had
an offer for a higher paying job.
          The Complaint
          St. Myers brought suit against Dignity Health and Optum360. She alleged she
was employed by both defendants. In her first amended complaint she set forth in detail
the over 50 times that she had complained about working conditions. Many of the
complaints were about the central scheduling system. Other complaints were about
safety issues, particularly doors that did not lock or close properly. St. Myers also



                                                 3
complained about things she believed adversely affected patient care, such as missing or
inadequate equipment, and poor or insufficient staff.
        The first cause of action was for a violation of Health and Safety Code section
1278.5.1 That section provides whistleblower protection for health care workers who
report unsafe patient care and conditions. It prohibits discrimination or retaliation by a
health facility against an employee who has presented a grievance, complaint, or report to
the facility. (Id., subd. (b)(1)(A).) St. Myers alleged: “Defendants harassed,
discriminated, and retaliated against Plaintiff because she reported concerns about patient
care, services, and hospital conditions.”
        The second cause of action alleged a violation of Labor Code sections 98.6 and
1102.5. Section 98.6 of the Labor Code prohibits discharging an employee for filing a
bona fide complaint or claim relating to her rights under the jurisdiction of the Labor
Commissioner. Labor Code Section 1102.5, subdivision (b) prohibits retaliation for
disclosing information about a violation or noncompliance with federal, state, or local
statute, rule, or regulation. Subdivision (c) of that section prohibits retaliation against an
employee for refusing to participate in such activity. The complaint alleged St. Myers
made numerous complaints to persons with authority over MTMC about patient safety,
retaliation, and unsafe working conditions and stated her refusal to participate in violating
state statutes. It further alleged defendants retaliated against her by constructively
terminating her employment.
        The third cause of action alleged a violation of Labor Code section 6310, which
provides for reinstatement and reimbursement for lost wages and benefits for an
employee discharged or discriminated against for reporting unsafe working conditions.
St. Myers alleged she was retaliated against (for reporting safety issues) through false




1   Further undesignated statutory references are to the Health and Safety Code.

                                               4
accusations of drug use, violation of the agreement to be assigned to the same location as
Mills, and constructive discharge.
       St. Myers alleged in the fourth cause of action that she was forced to resign for
reasons that violate public policy, resulting in her constructive discharge. She claimed
she was subjected to working conditions that violated public policy and defendants’
retaliation against her also violated the public policy. She alleged she resigned because
of the intolerable working conditions.
       The amended complaint alleged each cause of action was perpetrated or ratified
(or both) by defendants’ managing agent or officer and the acts were done with malice,
fraud, oppression, and in reckless disregard of St. Myers’s rights. It sought both
compensatory and punitive damages.
       Dignity Health’s Motion for Summary Judgment
       Dignity Health moved for summary judgment, contending that St. Myers could not
establish an adverse employment action. Dignity Health provided portions of St. Myers’s
deposition to establish that she was never subject to a disciplinary write-up, suspended, or
demoted. She had received a very good job evaluation, thanked for an “outstanding job,”
and been given a raise. She was never denied a raise received by others at her level. She
declined an offer to accept management duties. No action was ever taken against her
because of the investigations. She was asked to consider a transfer to another location 15
miles away but resigned before any transfer could take place. St. Myers had testified she
thought about quitting for years. At the time she resigned, she had a job offer that paid
more. She was not subject to any discipline or in danger of being fired when she left; she
could have stayed working at MTMC.
       In opposition, St. Myers argued she was constructively discharged because the
conditions at the Angels Camp clinic put her at risk for practicing medicine below the
standard of care. She further claimed her complaints about safety issues resulted in a



                                             5
campaign of harassment in the form of baseless investigations and manipulation of
patient scheduling to affect her productivity and her bonus compensation.
       In response to Dignity Health’s assertion that St. Myers was not constructively
terminated from employment, St. Myers offered 12 adverse actions that she claimed
constituted a campaign of harassment: (1) constant harassment from supervisors; (2) a
baseless investigation of improper sexual behavior by her and Mills at the clinic; (3) a
baseless investigation involving drugs; (4) defamatory rumors in a small town; (5)
multiple false anonymous hotline complaints; (6) harassment by schedule manipulation,
such as intentionally overbooking her schedule and refusing to change her scheduling
template, which indicates the type and number of patients she serviced; (7) harassment by
schedule manipulation, such as scheduling her patients with other providers and
elimination of reminder calls, which increased no-shows; (8) refusal to address
equipment concerns; (9) reduction in income through schedule manipulation after
complaints about patient safety; (10) a work environment that was below the standard of
care; (11) being forced to practice unethically below the standard of care; and (12) a work
environment that placed her license at risk due to baseless investigations, inadequate
policies and procedures, and intentional interference by Valentine, the admitting
manager.
       St. Myers provided evidence in the form of excerpts of depositions and
declarations to support the allegations that she had complained about the workplace, that
Valentine manipulated scheduling and staff feared Valentine’s retaliation, and that many
people at MTMC said negative things about St. Myers. She provided evidence that she
was subjected to an investigation based on an anonymous accusation that she had made
disparaging remarks about a nurse whose work she criticized. The complaint was
investigated and found unsubstantiated.
       St. Myers provided the declaration of Dr. Mills, who had his own litany of
complaints about MTMC. He declared he witnessed the harassment of St. Myers, citing

                                             6
the baseless investigations, the threat to transfer her, the schedule manipulation,
anonymous complaints, and a reputational smear campaign. He also set forth that St.
Myers became depressed over concerns that she might lose her nursing license and job.
       The trial court relied solely on party depositions in ruling on the motion and thus
did not rule on the many hearsay objections beyond those to deposition testimony. The
court found St. Myers did not suffer an adverse employment action. Instead, it found the
“litany of potential workplace actions or potential speculative consequences suffice to
establish that plaintiff suffered no material adverse employment action while employed
by defendant.” St. Myers could not establish an essential element of the first three causes
of action. As to the fourth cause of action, the court found no evidence of coercion
necessary for constructive discharge. It further found no evidence of oppression, fraud,
or malice. The court entered judgment in favor of Dignity Health.
       Optum360’s Motion for Summary Judgment
       Optum360 filed a motion for summary judgment on several grounds. Optum360
asserted it was neither St. Myers’s employer nor a health facility subject to section
1278.5. Relying on the fact that it came to MTMC in December 2013, Optum360 argued
that St. Myers did not engage in any protected activity because her complaints related to
matters occurring before then. Further, there was no adverse employment action, and no
constructive discharge.
       Optum360 provided excerpts from St. Myers’s deposition in which she testified
she did not communicate with Optum360 about her resignation. St. Myers also testified
that Valentine, who left Dignity Health and went to work for Optum360 after it began
providing services for MTMC, could not unilaterally fire her.
       Optum360 also provided the declaration of Joshua Goldman, its “Chief People
Officer” whose duties included all aspects of human resources management. He set forth
the revenue cycle services Optum360 provided to MTMC. Optum360 had four staff
members servicing MTMC, including Valentine, who taught best practices to Dignity

                                              7
Health’s front office staff who perform patient scheduling and registration, as well as
billing and collection. The front office staff does not provide medical care. No
Optum360 staff worked on-site at MTMC. Goldman reviewed Optum360’s personnel
records and found no record that St. Myers was ever an employee. Optum360 did not
pay medical providers such as St. Myers for their services at MTMC. Nor did it provide
them with benefits or pay or pay social security or other payroll taxes on their behalf. It
had no authority to hire, transfer, or terminate medical providers, and has never owned
any of the Mark Twain hospital or medical facilities or their equipment.
       In opposition, St. Myers provided evidence, in the form of financial reports, that
Optum360 was a joint venture between Dignity Health and OptumInsight, Inc., and
Dignity Health contributed certain equipment and intellectual property related to revenue
cycle management in exchange for a 25 percent interest in Optum360. St. Myers
disputed that Optum360 did not set or control her pay because Valentine controlled the
scheduling of patients. St. Myers received an extra $20.50 for every patient in excess of
16 that she saw in one day. St. Myers claimed Valentine’s manipulation of the
scheduling affected her pay.
       The trial court, again relying on party depositions, found St. Myers failed to show
that Optum360 was her co-employer. Instead, Dignity Health and Optum360 had a
business arrangement that separated the clerical and administrative staff from the medical
practitioners, and St. Myers disagreed with the decision to come to this arrangement.
Even if St. Myers were correct that this arrangement posed a detriment to patient safety,
any potential liability would be borne by Dignity Health, not Optum360 because it was
not a co-employer or a health care facility. The court entered judgment in favor of
Optum360.




                                             8
                                      DISCUSSION
                                              I
                              Compliance with Rules of Court
       Both Dignity Health and Optum360 observe that St. Myers has violated the
California Rules of Court and note correctly that the penalty for such violation may be
forfeiture of the argument.
       California Rules of Court, rule 8.204(a)(1)(C) requires that each appellate brief
must “support any reference to a matter in the record by a citation to the volume and page
number of the record where the matter appears.” Here, St. Myers provides citations only
to her separate statement of disputed facts, without citing to the evidence in the record
supporting the facts asserted in her separate statement. As we have explained: “The
separate statement is not itself evidence of anything. It is mere assertion. The evidence
of the asserted facts appears elsewhere—in affidavits, depositions, etc. Plaintiff’s brief
should have cited to those pages in addition to the separate statement of disputed facts.”
(Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1024-
1025, disapproved on another point in Regents of University of California v. Superior
Court (2018) 4 Cal.5th 607, 634, fn. 7.) “In this instance, we shall disregard the failure to
comply with the appellate rules, though we note for the benefit of appellate counsel that
this court has discretion to disregard contentions unsupported by proper page cites to the
record.” (Id. at p. 1025.) We remind counsel that, “The appellate court is not required to
search the record on its own seeking error.” (Del Real v. City of Riverside (2002) 95
Cal.App.4th 761, 768.)
                                             II
                                    Standard of Review
       “The motion for summary judgment shall be granted if all the papers submitted
show that there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A

                                              9
defendant meets his or her burden of showing that a cause of action has no merit if he
shows that one or more of the elements of the cause of action cannot be established, or
that there is a complete defense. (Id., subd. (p)(2).) Once the defendant has met that
burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists.
(Ibid.)
          We review an order granting summary judgment de novo. (Biancalana v. T.D.
Service Co. (2013) 56 Cal.4th 807, 813.) “Because the granting of a summary judgment
motion involves pure questions of law, we are required to reassess the legal significance
and effect of the papers presented by the parties in connection with the motion.”
(Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1259.)
                                               III
                                        Joint Employer
          St. Myers contends the trial court erred in finding that Optum360 was not a joint
employer. She argues the facts show that Optum360 controlled many aspects of her
employment, such as scheduling, pay potential, and her ability to safely practice medicine
and provide adequate patient care. She also relies on facts showing that the Optum360
managers, such as Valentine, worked for Dignity Health before Optum360 came into
existence and their jobs did not change once they became Optum360 employees.
          All of St. Myers’s claims are premised on the allegation that Optum360 was her
joint employer. Section 1278.5, subdivision (b) prohibits discrimination or retaliation
against an employee. Both Labor Code sections 98.6 and 1102.5, subdivision (b) prohibit
an employer from discriminating or retaliating against an employee for filing a complaint
or disclosing information about a safety violation. Labor Code section 6310 protects an
employee from discharge or other discrimination by the employer for filing a complaint
about workplace safety. The fourth cause of action is for constructive discharge in
violation of public policy. “[A] Tameny action for wrongful discharge can only be



                                               10
asserted against an employer.” (Miklosy v. Regents of University of California (2008) 44
Cal.4th 876, 900.)
       “The various designated tests adopted by the courts to determine the existence of
an employer/employee relationship have articulated many of the same or similar
governing standards, and have ‘little discernible difference’ between them. [Citations.]
The common and prevailing principle espoused in all of the tests directs us to consider
the ‘totality of circumstances’ that reflect upon the nature of the work relationship of the
parties, with emphasis upon the extent to which the defendant controls the plaintiff's
performance of employment duties. [Citations.] ‘There is no magic formula for
determining whether an organization is a joint employer. Rather, the court must analyze
“myriad facts surrounding the employment relationship in question.” [Citation.] No one
factor is decisive. [Citation.]’ [Citations.] ‘[T]he precise contours of an employment
relationship can only be established by a careful factual inquiry.’ [Citation.]
       “Factors to be taken into account in assessing the relationship of the parties
include payment of salary or other employment benefits and Social Security taxes, the
ownership of the equipment necessary to performance of the job, the location where the
work is performed, the obligation of the defendant to train the employee, the authority of
the defendant to hire, transfer, promote, discipline or discharge the employee, the
authority to establish work schedules and assignments, the defendant's discretion to
determine the amount of compensation earned by the employee, the skill required of the
work performed and the extent to which it is done under the direction of a supervisor,
whether the work is part of the defendant’s regular business operations, the skill required
in the particular occupation, the duration of the relationship of the parties, and the
duration of the plaintiff's employment. [Citations.] ‘ “Generally, . . . the individual
factors cannot be applied mechanically as separate tests; they are intertwined and their
weight depends often on particular combinations.” ’ ” (Vernon v. State of California
(2004) 116 Cal.App.4th 114, 124-125 (Vernon), fn. omitted.) The most important factor

                                              11
is “the defendant’s right to control the means and manner of the workers’ performance.”
(Id. at p. 126.)
       Optum360 provided evidence showing that it did not pay St. Myers’ salary,
benefits, or Social Security taxes. It did not own the equipment that St. Myers used when
she performed her work at a clinic owned by MTMC. Optum360 did not have authority
to hire, transfer, demote, discipline, or discharge St. Myers and did not set her schedule or
determine her amount of pay. Further, St. Myers testified she worked fairly
autonomously, with only monthly chart reviews by a supervising physician. No
Optum360 staff provided medical care.
       St. Myers contends Optum360 did control her work because Valentine controlled
the scheduling of patients and had the ability to manipulate the schedule to reduce her
compensation, presumably by not scheduling more than 16 patients a day so St. Myers
did not receive an incentive bonus.
       St. Myers cites to Torrez-Lopez v. May (9th Cir. 1997) 111 F.3d 633 at page 643,
where the Ninth Circuit found Bear Creek Farms’ exercise of some control over the rate
of pay for farmworkers hired by a farm labor contractor contributed to the finding that
Bear Creek was a joint employer of the farmworkers. St. Myers exaggerates the appellate
court’s reliance on this one aspect of control. The court found Bear Creek had an
ownership interest in the premises and work equipment and exercised considerable
indirect control over working conditions and that the district court erred in declining to
attribute much significance to non-regulatory factors in determining joint employment.
(Id. at pp. 640-644.) The Ninth Circuit found all but one of the eight non-regulatory
factors pointed to a conclusion that the farmworkers were employees of Bear Creek
Farms. (Id. at p. 643.)
       In determining whether Optum360 was a joint employer of St. Myers we consider
the totality of the circumstances, not a single factor. (Vernon, supra, 116 Cal.App.4th at
p. 124.) Here, nearly all the factors point to the conclusion that Optum360 was not a joint

                                             12
employer of St. Myers. That Optum360 may have had a modicum degree of control over
St. Myers’s pay through the ability of one of its employees (Valentine) to make small
changes to the schedule does not change this conclusion.2
       In passing, St. Myers contends Optum360 controlled her ability to safely practice
medicine. St. Myers’s “opening brief fails to support [her] assertion by citation to
argument or authority. This conclusory presentation, without pertinent argument or an
attempt to apply the law to the circumstances of this case, is inadequate. We therefore
treat the issue as abandoned and do not address it on the merits.” (Benach v. County of
Los Angeles (2007) 149 Cal.App.4th 836, 852; see also Cal. Rules of Court, rule
8.204(a)(1)(B).)
       In the alternative, St. Myers contends section 1278.5 does not require an
employer-employee relationship. The statute provides whistleblower protection against
discrimination or retaliation by a health facility to any health care worker of the health
facility who reports unsafe patient care and conditions; its protections are not limited to
employees. (§ 1278.5, subd. (b).)
       The amended complaint, however, bases Optum360’s liability on its status as a
joint employer. “ ‘[T]he pleadings delimit the issues to be considered on a motion for
summary judgment. [Citation.]’ [Citation.] Thus, a ‘defendant moving for summary
judgment need address only the issues raised by the complaint; the plaintiff cannot bring
up new, unpleaded issues in his or her opposing papers.’ ” (Laabs v. City of Victorville
(2008) 163 Cal.App.4th 1242, 1253.)
       Moreover, St. Myers’s contention has no merit. She asserts Optum360 is a health
facility because it operates MTMC by managing and influencing day-to-day operations.
A “health facility” under this statute “means any facility defined under this chapter,



2We point out that St. Myers provided no evidence that Valentine’s alleged
manipulation of scheduling actually decreased her pay.

                                             13
including, but not limited to, the facility’s administrative personnel, employees, boards,
and committees of the board, and medical staff.” (§ 1278.5, subd. (i).) Chapter 2 of
Division 2 of the Health and Safety Code defines “health facility” as “a facility, place, or
building that is organized, maintained, and operated for the diagnosis, care, prevention,
and treatment of human illness, physical or mental, including convalescence and
rehabilitation and including care during and after pregnancy.” (§ 1250.)
       The target defendant of section 1278.5 is the facility, here MTMC. (Armin v.
Riverside Community Hospital (2016) 5 Cal.App.5th 810, 832.) Optum360 provided
end-to-end revenue cycling services to MTMC. These services included scheduling,
patient registration, health information management in the form of coding and
transcription, billing, and collections. Optum360 provided services to the front office
staff; the office staff did not provide medical care. No Optum360 staff worked on-site at
MTMC. This evidence established that Optum360 was a third-party service provider to
MTMC; it did not operate MTMC.3 Optum360 provided ancillary services; it did not
operate or manage “the diagnosis, care, prevention, and treatment of human illness.”
(§ 1250.)
       St. Myers argues that without the scheduling and billing services provided by
Optum360, MTMC’s clinics would be unable to operate. This may be an accurate
observation, but it is not relevant; a medical clinic needs power and water to operate, but
that does not make utility companies “health facilities” under the statute.
       Finally, St. Myers contends public policy requires that Optum360 qualify as a
“health facility.” Otherwise, she argues, a hospital system could avoid liability by
outsourcing all managerial and administrative control of the facility to a third party. We



3 We deny St. Myers’s request for judicial notice of dictionary definitions of “operate” as
unnecessary to our resolution of this appeal. (County of San Diego v. State of California
(2008) 164 Cal.App.4th 580, 613, fn. 29.)

                                             14
need not determine if a hospital system could so avoid liability because such outsourcing
did not occur here. Dignity Health owns and operates the health facility at issue and is
the proper defendant for a claim under section 1278.5.
       The trial court did not err in granting Optum360’s motion for summary judgment.
                                             IV
                                  Constructive Discharge
       St. Myers’s first three causes of action allege retaliation under section 1278.5,
Labor Code sections 98.6 and 1102.5, and Labor Code section 6310. All three causes of
action have similar requirements, and all require an adverse employment action. To
establish a prima facie case under each, St. Myers must show (1) she engaged in a
protected activity, (2) her employer subjected her to an adverse employment action, and
(3) a causal link between the two. (Jadwin v. County of Kern (E.D. Cal. 2009) 610
F.Supp.2d 1129, 1144 [§ 1278.5]; Patten v. Grant Joint Union High School Dist. (2005)
134 Cal.App.4th 1378, 1384 [Lab. Code § 1102.5]; Cuevas v. SkyWest Airlines (N.D.
Cal. 2014) 17 F.Supp.3d 956, 964 [Lab. Code, § 6310].) Her fourth cause of action was
for constructive discharge in violation of public policy.
       St. Myers contends she was subjected to a material adverse employment action
because she was constructively discharged. She contends she was subjected to
intolerable working conditions, a campaign of harassment in the form of baseless
investigations, false complaints whose sources were not investigated, a refusal to remedy
safety issues, schedule manipulation that affected her pay and bonus compensation, and
being forced to practice in unsafe conditions and below the standard of care.
       “Constructive discharge occurs when the employer’s conduct effectively forces an
employee to resign. Although the employee may say, ‘I quit,’ the employment
relationship is actually severed involuntarily by the employer’s acts, against the
employee’s will. As a result, a constructive discharge is legally regarded as a firing
rather than a resignation.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-

                                             15
1245 (Turner).) “ ‘Constructive discharge, like actual discharge, is a materially adverse
employment action.’ ” (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th
1241, 1253.)
       “In order to establish a constructive discharge, an employee must plead and prove,
by the usual preponderance of the evidence standard, that the employer either
intentionally created or knowingly permitted working conditions that were so intolerable
or aggravated at the time of the employee’s resignation that a reasonable employer would
realize that a reasonable person in the employee’s position would be compelled to
resign.” (Turner, supra, 7 Cal.4th at p. 1251.)
       “The conditions giving rise to the resignation must be sufficiently extraordinary
and egregious to overcome the normal motivation of a competent, diligent, and
reasonable employee to remain on the job to earn a livelihood and to serve his or her
employer. The proper focus is on whether the resignation was coerced, not whether it
was simply one rational option for the employee.” (Turner, supra, 7 Cal.4th at p. 1246.)
“In order to amount to a constructive discharge, adverse working conditions must be
unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be
deemed intolerable.” (Id. at p. 1247.) “The essence of the test is whether, under all the
circumstances, the working conditions are so unusually adverse that a reasonable
employee in plaintiff’s position ‘ “ ‘would have felt compelled to resign.’ ” ’ ” (Ibid.)
       The undisputed evidence showed that St. Myers had never been disciplined,
suspended, or demoted. She received a raise and her performance evaluation praised her
outstanding work. She authored an e-mail thanking others for helping to improve the
clinic. She was offered the opportunity to assume management duties. At the time of her
resignation, she did not believe she was in danger of being fired and thought she could
have stayed at her job. She quit only after she had a better job offer. When she resigned,
she gave two weeks’ notice.



                                             16
       Despite this positive work history, St. Myers contends she was subject to
continuous harassment. She blames Dignity Health for the anonymous complaints that
led to investigations and faults it for failing to investigate the complainants. But the
identity of the complainants behind these anonymous complaints was, as their
classification as “anonymous” suggests, largely unknown. Although St. Myers testified
she was told Valentine and another employee were behind the complaint about accessing
patient information, she admitted in her deposition that she did not know who made the
other complaints, and she also admitted that Dignity Health had a duty to investigate
regardless. In opposition to Dignity Health’s summary judgment motion, St. Myers
provided only hearsay evidence, speculation, or suspicion. This evidence of suspicion,
much of it inadmissible, is insufficient to create a triable issue of fact that Dignity Health
“either intentionally created or knowingly permitted” (Turner, supra, 7 Cal.4th at
p. 1251) the false accusations against St. Myers. Nor did St. Myers offer any evidence or
law as support for her assertion that Dignity Health had a duty to investigate the source of
complaints made through the anonymous complaint hotline. St. Myers contends the
accusations of improperly accessing patient information and drug use had the potential to
threaten her career. All of the investigations, however, found the accusations against St.
Myers to be baseless and no action was taken against her because of them.
       St. Myers contends Valentine harassed her by manipulating her schedule, either
reducing the number of her patients so that she appeared unproductive and lost incentive
bonuses, or increasing the number to overwhelm her. St. Myers, however, provided no
evidence to back up these claims. (See Thomas v. Department of Corrections (2000) 77
Cal.App.4th 507, 512 [sustaining demurrer proper where allegations not supported by
facts evidencing substantial and detrimental effect on employment].) Her raise and
outstanding performance evaluation belie the claim she was made to appear unproductive
to her detriment.



                                              17
       St. Myers contends she was forced to work in an unsafe workplace and below the
standard of care. She did not, however, provide any evidence as to the standard of care
for a medical clinic. Nor did she provide evidence of negligence that common
knowledge would indicate was below the standard of care. (See Ewing v. Northridge
Hospital Medical Center (2004) 120 Cal.App.4th 1289, 1302 [expert testimony required
on standard of care except in rare circumstance where negligence can be evaluated by
resort to common knowledge].) Many of her complaints are about what she perceives as
deficiencies, such as scheduling her patients with other providers, the lack of weekly
rounds at the clinic and yearly evaluations for providers, and not scanning medication
refills into the patient’s file, but she does not tie these alleged deficiencies to any
established standard. Her letter of resignation makes this point: “MTMC does not meet
my standards of practice.” (Italics added.) “[P]ersonal beliefs or concerns are not
evidence.” (McRae v. Department of Corrections & Rehabilitation (2006) 142
Cal.App.4th 377, 396 (McRae).)
       St. Myers’s litany of complaints fails to raise a triable issue of fact that Dignity
Health “either intentionally created or knowingly permitted” an intolerable workplace
that coerced her to resign. Other cases show the degree of coercion required.
       In Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, the plaintiff had
worked for her employer for over 21 years until she was forced to take medical leave due
to a medical condition exacerbated by the wrongful acts of her employer and was unable
thereafter to return to work. During her entire career, her performance reviews rated her
commendable to outstanding, she received progressive salary increases that were
consistent with her excellent work, and she had a reputation for honesty, integrity,
competence, and for accomplishing difficult projects on time and under budget. (Id. at
pp. 1301-1302, 1307.) The appellate court reversed a summary judgment in favor of the
employer, finding plaintiff raised a triable issue of constructive discharge. Her supervisor
had instructed others to document plaintiff for termination and told others she was

                                               18
incompetent without specifics or evidence; there was an instruction to falsify a memo to
make it look like plaintiff had made a mistake and another supervisor demanded plaintiff
process unlawful orders. (Id. at p. 1309.) A reorganization significantly changed her
duties without notice to her and her new duties were excessive and unnecessary, raising
the reasonable inference of a plan “to push plaintiff to quit her job.” (Id. at p. 1310.)
       The plaintiff provided enough evidence to create a triable issue of fact of
constructive discharge in Juell v. Forest Pharmaceuticals, Inc. (E.D. Cal. 2006) 456
F.Supp.2d 1141, despite undisputed evidence of above-average performance reviews,
promotions, bonuses and stock options, and a six-figure salary. Plaintiff, a sales
manager, provided evidence that he was given excessive responsibilities that could not be
completed by one person; to complete the work, plaintiff’s wife often worked 40 hours a
week to assist him with administrative duties. His manager made degrading comments
about his age to plaintiff every time they spoke, and made similar comments frequently to
others, including clients, implying that plaintiff’s abilities may be suspect because of his
age. “As such, plaintiff has presented sufficient evidence to raise a triable issue of fact
regarding whether his working conditions were objectively intolerable.” (Id. at p. 1153.)
       Unlike in Colores and Juell, St. Myers offered no admissible evidence of actions
by Dignity Health or its employees to coerce her to resign. She testified she was not in
danger of being disciplined when she resigned, and she could have continued working at
MTMC. Her workload was not increased and her competence was not questioned. The
only alleged actions directed at her specifically were the investigations, none of which
found her at fault. She offered only speculation and hearsay that agents of Dignity Health
were behind the accusations that lead to the inquiries and admitted Dignity Health had a
duty to investigate. No evidence of constructive discharge appears.




                                              19
                                              V
                                    Other Adverse Actions
       St. Myers contends she was subject to adverse employment actions in addition to
constructive termination. She cites to the manipulation of her schedule, the false
allegations against her and resulting investigations, the spreading of rumors based on
these false allegations, and the requirements that she practice below the standard of care.
       “In California, an employee seeking recovery on a theory of unlawful
discrimination or retaliation must demonstrate that he or she has been subjected to an
adverse employment action that materially affects the terms, conditions, or privileges of
employment, rather than simply that the employee has been subjected to an adverse
action or treatment that reasonably would deter an employee from engaging in the
protected activity. [Citation.] ‘A change that is merely contrary to the employee's
interests or not to the employee's liking is insufficient.’ [Citation.] ‘ “[W]orkplaces are
rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s
act or omission does not elevate that act or omission to the level of a materially adverse
employment action.” [Citation.] If every minor change in working conditions or trivial
action were a materially adverse action then any “action that an irritable, chip-on-the-
shoulder employee did not like would form the basis of a discrimination suit.”
[Citation.]’ [Citation.] The plaintiff must show the employer’s retaliatory actions had a
detrimental and substantial effect on the plaintiff’s employment. [Citations.]” (McRae,
supra, 142 Cal.App.4th at p. 386.)
       As discussed ante, St. Myers failed to provide admissible evidence to create a
triable issue of fact that the manipulation of her schedule detrimentally affected her pay
or that she was forced to practice below the standard of care. Further, she failed to raise a
triable issue of fact that Dignity Health or its agents were behind the false allegations that
led to investigations and rumors.



                                             20
        St. Myers contends the standard for an adverse employment action under section
1278.5 is “far broader” than the standard for other retaliation actions. Subdivision (d)(2)
of section 1278.5 defines “discriminatory treatment” to include “discharge, demotion,
suspension, or any unfavorable changes in, or breach of, the terms or conditions of a
contract, employment, or privileges of the employee.” (Italics added.) Even if we accept
this new contention, raised for the first time on appeal, it fails. The problem with St.
Myers’s case is not that she failed to raise a triable issue of fact as to the materiality of
the adverse employment action, but that she failed to raise a triable issue of fact that there
was any adverse employment action.
        The trial court did not err in granting Dignity Health’s motion for summary
judgment.
                                               VI
                                      Punitive Damages
        “Tort liability is a necessary predicate for punitive damages.” (Ginsberg v.
Gamson (2012) 205 Cal.App.4th 873, 896.) Because the trial court properly granted
summary judgment to all causes of action, St. Myers’s claim for punitive damages fails as
well.




                                               21
                                     DISPOSITION
       The judgment is affirmed. Dignity Health and Optum360 shall recover their costs
on appeal. (Cal. Rules of Court, rule 8.278(a).)




                                                        /s/
                                                   Duarte, Acting P. J.



We concur:



     /s/
Renner, J.




     /s/
Krause, J.




                                            22
Filed 1/13/20


                         CERTIFIED FOR PARTIAL PUBLICATION*




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                THIRD APPELLATE DISTRICT
                                             (Calaveras)
                                                ----




CARLA ST. MYERS,                                                      C085980

                  Plaintiff and Appellant,                  (Super. Ct. No. 15CV41238)

        v.                                                    ORDER GRANTING
                                                            PARTIAL PUBLICATION
DIGNITY HEALTH et al.,

                  Defendants and Respondents.




        THE COURT:
        Defendants Optum360 Services, Inc., and Dignity Health, and non-party
California Hospital Association, have filed a joint request for publication with this court.
It is hereby ordered:



* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts I, II, and VI.

                                                 1
       1.          The opinion in the above-entitled matter filed December 12, 2019, was not
                   certified for publication in the Official Reports. For good cause it now
                   appears the opinion should be published in the Official Reports, and it is so
                   ordered.




FOR THE COURT:




          /s/
Duarte, Acting P. J.




             /s/
Renner, J.




             /s/
Krause, J.




                                                  2
                              EDITORIAL LISTING


      APPEAL from a judgment of the Superior Court of Calaveras County, Susan C.
Harlan, Judge. Affirmed.

      Bohm Law Group, Lawrance A. Bohm and Zane E. Hilton for Plaintiff and
Appellant Carla St. Meyers.

      Kronick, Moskovitz, Tiedemann & Girard, Rex Darrell Berry, James W. Ward;
Atkinson, Andelson, Loya, Ruud & Romo and Rex Darrell Berry for Defendant and
Respondent Dignity Health.


     Seyfarth Shaw, Laura Jean Maechtlen, Michael Anderson Wahlander, Timothy M.
Hoppe and Parnian Vafaeenia for Defendant and Respondent Optum360 Services, Inc.




                                        3
