Duran v. Atl. Mem'l Hosp. Assocs.

• Decision Date: 07 April 2020
• Docket Number: B286660
• Court: California Court of Appeals Court of Appeals
• Parties: INGRI DURAN, Plaintiff and Appellant, v. ATLANTIC MEMORIAL HOSPITAL ASSOCIATES, INC., et al., Defendants and Respondents.

INGRI DURAN, Plaintiff and Appellant, v. ATLANTIC MEMORIAL HOSPITAL ASSOCIATES, INC., et al., Defendants and Respondents.

B286660

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

April 7, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. NC060366)

APPEAL from a judgment of the Superior Court of Los Angeles County, Ross M. Klein Judge. Affirmed.

Law Office of Twila S. White and Twila S. White for Plaintiff and Appellant.

Call & Jensen, Julie Trotter, and Delavan J. Dickson for Defendants and Respondents.

____________________ Plaintiff Ingri Duran appeals from a judgment entered after the trial court granted defendant Atlantic Memorial Healthcare Associates, Inc.'s (Atlantic) motion for summary adjudication. Duran was an activity director for Atlantic at its skilled nursing facility. After Duran became pregnant, she took leave, then resigned her position. Duran asserts she was constructively discharged due to the hostile work environment at Atlantic. Duran brought claims under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.)¹ for gender and disability discrimination; failure to accommodate; retaliation; harassment; failure to prevent discrimination, retaliation and harassment; and wrongful constructive discharge. Duran also alleged interference with her right to leave and retaliation in violation of the Pregnancy Disability Leave Law (§ 12945; PDLL); retaliation in violation of Labor Code section 1102.5 and Health and Safety Code section 1432; defamation; conversion; unfair business practices; and Labor Code violations.

Duran also appeals from the trial court's denial of her ex parte application for reconsideration of the court's order appointing a discovery referee and requiring Duran to pay 50 percent of the referee's costs. Duran has not shown triable issues of fact exist as to her claims and has not met her burden to show the trial court abused its discretion in denying her request for reconsideration. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Duran's Employment with Atlantic²

Atlantic, which operates a skilled nursing facility in Long Beach, hired Duran as the facility's activity director on July 27, 2010. Duran's duties included programming and supervising activities for the patients, taking patients on field trips, conducting room visits, documenting administration of psychotropic medication, and conducting patient assessments. Duran regularly purchased supplies for patient activities and submitted those expenses to Atlantic on a monthly basis for reimbursement. Throughout her employment, Atlantic reimbursed Duran for all her expenses. Duran never waited longer than a month for a reimbursement.

In November 2010 Duran complained to her supervisor, administrator Rusty Marsh, about harassment she was experiencing at Atlantic. Duran told Marsh a medical records director named Lala asked Duran to be friendlier with the doctors at Atlantic, including to hug and kiss them. When Duran refused, Lala said, "You have to do it. It's good for the facility. They are going to give us patients."

Duran also complained to Marsh about Armida Faessler, the director of nursing. Upon learning Duran was engaged, Faessler demanded, "Why didn't you tell me you had a fiancé, and you were getting married? If [only] I knew that before Ihired you." Faessler added, "I wanted you to be friendlier with the doctors." On another occasion, Faessler stopped Duran while at work to criticize her earrings, then slapped Duran hard in the face in front of the nursing staff. At an employee meeting, Faessler told Duran she had to "kiss the floor" Faessler walked on. Faessler also called Duran "young" and "stupid."

Duran also reported to Marsh the treatment Duran received from marketing director Judy Gonzalez and admissions coordinator Jasmine Patdu. Gonzalez made fun of Duran's weight and told her to wear less provocative, looser fitting clothing. Faessler, Gonzalez, and Patdu mocked Duran's accent.

In response to Duran's complaints about Faessler, Lala, Gonzalez, and Patdu, Marsh said, "I'll see what I can do," but Duran's coworkers continued to call her "fat, dumb, [and] stupid." Duran again complained to Marsh on multiple occasions, but the situation did not improve.

In 2011 Duran became pregnant. During Duran's pregnancy, Faessler continued to insult Duran's weight, questioned why she was sick so frequently, and forbid her from using the facility restrooms. In late 2011 Duran miscarried the pregnancy.

By the time Duran became pregnant in 2013, Faessler and Marsh had left Atlantic. With their departures, Duran's working conditions improved. In 2013 Duran requested and was granted leave for her second pregnancy, from August 26 to December 30, 2013. When Duran returned, Atlantic granted her temporary part-time status. Duran became a member of Atlantic's interdisciplinary team, which required her to attend one or two meetings a day. By the time of her return, Matt McClain had assumed the role of administrator. Duran liked McClain as theadministrator, and "the situation was good under his direction." While McClain was administrator, no one insulted or harassed Duran at work.

In March 2015 Jake Rothey assumed the position of administrator and began to supervise Duran. Rothey required Duran to attend all interdisciplinary team meetings, along with the social service director, dietary supervisor, rehab director, rehabilitation therapists, and director of nursing. The change required Duran to attend meetings "the whole day." Rothey sometimes allowed Duran to have an assistant work extra hours to assist her, and sometimes he did not.

In April 2015 Duran made an anonymous complaint about patient care at Atlantic through its website. Duran stated Atlantic was failing to control a violent patient who had assaulted others, and Rothey and others told employees to misreport the incidents. In June 2015 Duran made a second anonymous complaint by phone. Duran requested the call be "confidential" and never told anyone she made the call. Duran complained Rothey had intimidated employees into falsifying patient documents, and she reported unhygienic conditions and patient neglect and abuse. Hannah Surh investigated both complaints for Atlantic, but she never learned the identity of the complainants. Surh concluded the claims were unsubstantiated.

In June 2015 Duran informed Rothey and her coworkers she was pregnant. Rothey replied, "Oh, okay," but he did not congratulate her. Rothey never made any comments to Duran about her pregnancy. During a meeting with Rothey, Duran complained she was expected to attend meetings all day, to run programs, and to perform room visits, but she could not be inthree places at once. Duran requested staffing assistance, but Rothey denied her request and told her "to figure it out."

At another meeting, Rothey and the social service director (Sheila) told Duran she would need to take patients outside for smoke breaks.³ Duran refused, but Rothey and Sheila repeated their request three or four times during the meeting. Duran responded she was pregnant and she "wasn't going to put [her] baby in danger." Sheila accused Duran of using her pregnancy as an excuse. Duran never took a patient on a smoke break, and she was never asked to do it again. Instead, other employees took the patients out to smoke.

During Duran's pregnancy, one of Duran's coworkers called her "fat," and Duran overheard other coworkers state, "Look at [Duran]. She just came back from maternity leave. Now she's going to start taking days off. Lucky her. She shouldn't be here. They should fire her already. She's going to start coming in late. She can do whatever she wants." Another coworker told Duran, "Look at you. You can't complain. You are pregnant. You have a husband to take care of you." The coworker added, "You are too young and stupid." In June or July 2015 Gonzalez called Duran "fat" on two occasions.

In July 2015, when Duran was late to a morning meeting due to a doctor's appointment, a coworker named Linda announced, "Here comes the complainer," referring to Duran in front of all of the department heads. On another occasion, Linda commented to Sheila within earshot of Duran, "Look at [Duran], she's coming in late again. She's taking days off."

Based on her doctor's recommendation, Duran requested and was granted leave for her third pregnancy, between August 24 and September 19, 2015. When Duran called to check in during her leave, Duran's assistant Jackie told her Rothey had taken votes among department heads whether to terminate Duran. According to Jackie, Rothey stated, "I hope [Duran] doesn't come back," and he offered Duran's position to Jackie. When Duran returned to work on September 21, 2016, she overheard two nursing assistants say they "thought [Duran] [was] fired already." Duran told Rothey she "just couldn't be there anymore." Rothey replied, "Okay." Duran resigned from Atlantic that day and left without making arrangements to receive her final paycheck.

B. Duran's Complaint

On October 8, 2015 Duran submitted a complaint to the Department of Fair Employment and Housing (DFEH). After receiving a right to sue letter, on November 16, 2015 Duran filed a complaint in the Los Angeles Superior Court against Atlantic, Rothey, and unnamed Doe defendants. The complaint alleged causes of action for (1) discrimination based on sex; (2) discrimination based on disability; (3) failure to accommodate; (4) violation of PDLL; (5) retaliation; (6) harassment; (7) hostile work environment; (8) failure to prevent discrimination, harassment, and retaliation; (9) retaliation in...