Flores v. Dignity Health

• Decision Date: 22 October 2019
• Docket Number: 2d Civil No. B294776
• Court: California Court of Appeals Court of Appeals
• Parties: VERONICA FLORES, Plaintiff and Appellant, v. DIGNITY HEALTH, Defendant and Respondent.

VERONICA FLORES, Plaintiff and Appellant, v. DIGNITY HEALTH, Defendant and Respondent.

2d Civil No. B294776

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

October 22, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 56-2018-00507606-CU-WT-VTA)

(Ventura County)

Veronica Flores, a registered nurse, appeals from the judgment entered after the trial court sustained respondent Dignity Health's demurrer without leave to amend.¹ Respondentwas appellant's employer. After respondent discharged appellant, she brought the present action alleging that the discharge was in retaliation for "asserting the right to work in a safe environment with proper ratios between nurses and patients." The trial court concluded that the present action is preempted by the federal National Labor Relations Act (NLRA or Act). (29 U.S.C. § 151 et seq.) We affirm.

Factual and Procedural Background

Starting in October 1994, respondent employed appellant as a nurse at a hospital in Oxnard. Her employment was pursuant to a collective bargaining agreement (CBA).

In April 2015 respondent discharged appellant. "Service Employees International Union Local 21 (SEIU) initiated on [appellant's] behalf a grievance pursuant to the collective bargaining agreement . . . for unjust termination of her employment [in violation of the CBA] . . . ."

Pursuant to the NLRA, in October 2015 appellant filed an unfair labor practice charge with the National Labor Relations Board (NLRB or Board). The charge stated that respondent had "discharged union steward Veronica Flores . . . in retaliation for her union and/or concerted protected activity." The charge does not describe the nature of the protected activity.

The NLRB deferred "further proceedings on the charge . . . to the grievance/arbitration process." The NLRB explained: "The Board's deferral policy provides that the Board will postpone making a final determination on a charge when a grievance involving the same issue can be processed under the grievance/arbitration provision of the applicable contract." "Since the issues in the charge appear to be covered by provisions of the collective-bargaining agreement, it is likely that the issues maybe resolved through the grievance/arbitration procedure." "[W]hile the charge is deferred, the Regional office [of the NLRB] will monitor the processing of the grievance and, under certain circumstances, will resume processing of the charge." "[A]t any time, a party may present evidence and request dismissal of the charge, continued deferral of the charge, or issuance of a complaint."

The grievance initiated by SEIU, but not the unfair labor practice charge filed by appellant with the NLRB, proceeded to arbitration. In August 2017, the arbitrator concluded that respondent "has proven it had just cause to impose a disciplinary suspension but not that it had just cause to discharge [appellant]." The arbitrator observed that respondent had "justified its decision to discharge [her] based on the grounds that [she] had been at work 'under the influence' on April 1 and again on December 31, 2014." The evidence did not support a finding that she was under the influence on April 1, 2014, although a drug test "showed metabolites of the prescribed Xanax." But "[t]he story is very different on December 31, 2014 where the multiple incidents reported by her co-workers prove[] that she was impaired. . . . Coming to work knowing she was impaired is a clear violation of a known Policy and is a serious enough violation to be just cause for the disciplinary suspension." The arbitrator ordered respondent to "reinstate [appellant] . . . if an evaluation by a mutually agreed upon drug treatment specialist . . . determines that she is able to work unimpaired by her medications."

The arbitrator did not consider the unfair labor practice charge that appellant had filed with the NLRB. The arbitrator stated: "I note that the parties told me there was a deferredUnfair Labor Practice Charge, but I was provided neither the Charge nor a deferral letter. Although there is evidence that [appellant] was a Union Steward and filed complaints . . . about quite a few RN [registered nurse] assignments over the years, except for one statement from an exasperated supervisor, there is no other evidence in this record of union bias related to the matters here in issue."

Respondent mistakenly asserts that the unfair labor practice charge "was ultimately resolved in arbitration" and that the arbitrator "concluded there was no evidence of retaliation." The arbitrator's decision does not mention appellant's complaints about inadequate nurse-to-patient ratios. Nor does it mention her claim that she was discharged in retaliation for making these complaints.

In May 2018, the United States District Court for the Central District of California dismissed appellant's petition to confirm the arbitration award. The court reasoned that appellant lacked standing to file the petition because she was not a party to the arbitration and the CBA did not permit her to submit a dispute to arbitration.

In June 2018 appellant filed in Ventura County Superior Court a first amended complaint (complaint) in the present matter. The complaint consists of two causes of action. The first alleges that, in violation of section 1278.5 of the Health and Safety Code,² respondent retaliated against appellant for"whistleblowing."³ Appellant "repeatedly complained of insufficient staffing for the number of patients." "As a result of [her] safety complaints, [respondent] retaliated against her." She "was forced to endure continued harassment." The retaliation eventually resulted in the termination of her employment in April 2015. "[Appellant] had never been subjected to discipline in any form by [respondent] until after she made complaintsregarding proper nurse to patient ratios and the patient safety concerns arising from improper ratios."⁴

The second cause of action was for "wrongful termination in violation of public policy." Both causes of action sought "[c]ompensatory damages for lost wages and benefits," "[e]motional distress damages," and punitive damages. The first cause of action also sought "[p]enalties in the sum of $20,000 per willful violation."

After granting "the requests of both parties for judicial notice of certain" documents, the trial court sustained respondent's demurrer without leave to amend. The court ruled that appellant's state "claims . . . are preempted by sections 7 and 8 of the NLRA." Judgment was entered in respondent's favor.

Appellant filed a motion for a new trial on the ground that "there is insufficient evidence to support the order granting the demurrer to the complaint without leave to amend . . . and that the finding of NLRA preemption is against the law." The court denied the motion.

Demurrer; Standard of Review

"The task of this court is to determine whether the complaint states a cause of action." (Inter-Modal Rail Employees Assn. v. Burlington Northern & Santa Fe Railway Co. (1999) 73 Cal.App.4th 918, 924 (Inter-Modal).) A demurrer "'test[s] the sufficiency of the [pleading] as a matter of law, and it raises only a question of law. [Citations.] On a question of law, we apply a de novo standard of review on appeal.' [Citation.] [¶] Thereviewing court gives the pleading a reasonable interpretation and treats the demurrer as admitting all material facts properly pleaded. [Citation.]" (First Aid Services of San Diego, Inc. v. California Employment Development Dept. (2005) 133 Cal.App.4th 1470, 1476 (First Aid Services).) "'"We also consider matters which may be judicially noticed.' [Citation.] . . ." (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) "The reviewing court does not . . . assume the truth of contentions, deductions or conclusions of law. [Citation.]" (First Aid Services, supra, at p. 1476.)

"'The judgment [sustaining a demurrer] must be affirmed "if any one of the several grounds of demurrer is well taken. [Citations.]" [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]' [Citation.]" (First Aid Services, supra, 133 Cal.App.4th at pp. 1476-1477.)

Preemption under Sections 7 and 8 of the NLRA

"Section 7 of the NLRA guarantees employees 'the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .' (29 U.S.C. § 157.) Section 8 of the NLRA makes it an unfair labor practice for an employer 'to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in' section 7. (29 U.S.C. § 158(a)(1).)" (Luke v.Collotype Labels USA, Inc. (2008) 159 Cal.App.4th 1463, 1469-1470 (Luke), italics added.)

"Whether the NLRA preempts a cause of action is an issue of law we review de novo. [Citation.]" (Wal-Mart Stores, Inc. v. United Food & Commercial Workers International Union (2016) 4 Cal.App.5th 194, 201.) "The strand of federal preemption under the NLRA relevant to this case was announced by the United States Supreme Court in San Diego Unions v. Garmon (1959) 359 U.S. 236 . . . (Garmon). Under the Garmon test, state law claims are preempted if they concern conduct that is 'arguably' protected by section 7 or 'a...