Galvan v. Dameron Hospital Assn.

Facts

The Fair Employment and Housing Act makes it unlawful for an employer, “because of a protected classification, to discriminate against an employee ‘in compensation or in terms, conditions, or privileges of employment.’” (Galvan, supra, 37 Cal.App.5th at p. 558, quoting Gov. Code, § 12940, subd. (a).) It separately makes it “an unlawful employment practice under the FEHA for an employer to harass an employee because … of national origin or age.” (Id. at p. 563, citing § 12940, subd. (j)(1).) The statute’s definition of “employer” reaches “‘person[s] acting as an agent of an employer.’” (Id. at p. 562, quoting § 12926, subd. (d).) Plaintiff Shirley Galvan’s claims arose at the intersection of these provisions.

Galvan “is a registered nurse … born in the Philippines” who “immigrated to the United States.” (Galvan, supra, 37 Cal.App.5th at p. 554.) “English is her second language, and she speaks it with a strong accent.” (Ibid.) At the time of the events, “Galvan was 54 years old and had been working at Dameron Hospital for approximately 25 years,” holding the position of unit coordinator in the medical-surgical department, a role that “required [her] to attend all unit coordinator and staff meetings.” (Ibid.) “Like Galvan, the majority of unit coordinators in the medical-surgical and telemetry departments were Filipino.” (Ibid.)

In mid-2011, Doreen Alvarez became director of those departments and Galvan’s supervisor. (Galvan, supra, 37 Cal.App.5th at p. 554.) According to the evidence, “[e]very time Alvarez met with the unit coordinators, she ‘insult[ed],’ ‘degrad[ed],’ and ‘humiliat[ed]’ them.” (Ibid.) She “singled out unit coordinators who spoke English as a second language for criticism and often focused her comments on their accents and their supposed poor English language skills.” (Ibid.) At one meeting she told the group, “I don’t know how Dameron gets you guys. Your accents are thick. [You] don’t know what [you’re] doing.” (Ibid.) She told them that “those of you with a thick accent, those of you that cannot speak English … need to go back to school and learn how to read and write grammar,” and “that her young son could write better than they could.” (Ibid.) She announced she was there “to clean the house.” (Ibid.)

Alvarez introduced a new, White unit coordinator and told the others, “She speak[s] good English. She’s well educated. She’s going to do a better job [than] most of you guys here because you guys don’t know how to speak English.” (Galvan, supra, 37 Cal.App.5th at p. 555.) She repeatedly told the coordinators that if they could not “handle it,” they could “step up, step down or step out,” and that they were being paid “big bucks” without doing their jobs. (Ibid.) As the treatment “got progressively ‘worse and worse and worse,’” Galvan’s “stress level [went] higher and higher”; she “became ‘sweaty, cold, [and] nervous’ and her hands trembled.” (Ibid.)

Outside the meetings, Alvarez was more explicit. She “repeatedly told Bassey Duke, a clinical manager … that the Filipino unit coordinators were ‘too old’ and had ‘been here too long,’ and that she wanted to get rid of all of them.” (Galvan, supra, 37 Cal.App.5th at p. 556.) She told Duke, “These old Filipinos are making way too much money.” (Ibid.) She gave Duke the names of the people she “wanted to get rid of,” including Galvan, “because they were ‘dumb,’ ‘didn’t speak English,’ ‘didn’t represent the face of U.C. Davis,’ ‘ma[d]e too much money,’ and ‘were old.’” (Ibid.) To another manager, Roman Roxas, she said the Filipinos were “stupid,” that she did not “know what they are saying half the time,” and did not “know how they got the job speaking the way they do.” (Ibid.)

On July 10, 2012, the coordinators were given an unannounced exam to test their ability to read electrocardiograms, even though Galvan’s “department … did not have EKG monitors.” (Galvan, supra, 37 Cal.App.5th at p. 556.) Alvarez told Duke the Filipinos “didn’t have enough brains to pass” and, of a proposed review class, “Just let them take it because they’re going to flunk so I can get rid of them.” (Id. at pp. 556–557.) Galvan failed the first test and passed a retake. (Id. at p. 557.) After Alvarez terminated Duke in August 2012, word spread; “[o]n August 16, 2012, Galvan was told by two other employees that she was one of the nurses that Alvarez was planning to terminate.” (Ibid.) Galvan “‘lost it,’” could not sleep, and the next day went on doctor-ordered medical leave for stress, which was extended through October 2013. (Ibid.) Around the same time, fellow foreign-born coordinators Arimboanga (terminated), Ortiz (resigned due to stress), and Kabba (medical leave) all left under Alvarez. (Ibid.) When Galvan was ready to return, “she did not apply for a job at Dameron because she was afraid she would be subjected to the same type of harassment and intimidation.” (Ibid.) Dameron terminated her employment effective February 17, 2014. (Ibid.)

Procedural history

Galvan’s operative second amended complaint asserted FEHA causes of action for discrimination (§ 12940, subd. (a)), harassment (§ 12940, subd. (j)), and failure to prevent discrimination and harassment (§ 12940, subd. (k)), along with wrongful termination in violation of public policy and claims for declaratory and injunctive relief and punitive damages. (Galvan, supra, 37 Cal.App.5th at p. 553.) The complaint also pleaded retaliation, negligent supervision, and declaratory relief (retaliation). (Id. at p. 554, fn. 3.)

Defendants moved for summary judgment or summary adjudication, and the Superior Court of San Joaquin County, Carter P. Holly, Judge, granted summary judgment. (Galvan, supra, 37 Cal.App.5th at pp. 553–554.) The trial court found Galvan “could not make a prima facie showing of discrimination because she could not establish that she suffered an adverse employment action or that Dameron acted with a discriminatory motive,” and could not show harassment because she could not show “any of the complained of conduct was based on her national origin or age.” (Id. at pp. 553–554.) The remaining claims were deemed “derivative.” (Id. at p. 554.)

The Court of Appeal, Third Appellate District, in an opinion by Acting Presiding Justice Blease (with Robie and Duarte, JJ., concurring), reversed in part. (Galvan, supra, 37 Cal.App.5th at pp. 553–554.) The court directed entry of a new order granting summary adjudication of the retaliation and negligent supervision causes of action and the punitive-damages and retaliation declaratory-relief claims (which Galvan did not defend), but denying adjudication of the discrimination, harassment, failure-to-prevent, and wrongful-termination causes of action and the discrimination declaratory-relief and injunctive-relief claims. (Id. at p. 554; id. at pp. 566–567.) The case was certified for partial publication, with parts III through VI of the Discussion left unpublished, and the court directed that the matter be reassigned to a different judge on remand. (Id. at p. 567.)

Issue

The published portions present two linked questions on summary judgment. First, on the discrimination cause of action: were there “disputed factual issues about whether [Galvan] was constructively discharged and whether Dameron acted with a discriminatory motive”? (Galvan, supra, 37 Cal.App.5th at p. 559.) Embedded in the motive inquiry was the doctrinal question central to this article’s thesis — whether evidence that a supervisor disparaged employees for their accents and English-language skills supplies a sufficient basis for finding national-origin discrimination. Second, on the harassment cause of action: did Galvan present evidence that Alvarez’s conduct “was motivated by Galvan’s national origin and age” and was “severe and pervasive” enough to be actionable? (Id. at pp. 564–565.)

Holding

Reasoning

The court began with the modified summary-judgment burden for FEHA claims. Under the familiar framework, “[t]o state a prima facie case for discrimination … a plaintiff must establish that (1) she was a member of a protected class, (2) she was performing competently …, (3) she suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive.” (Galvan, supra, 37 Cal.App.5th at p. 558.) On summary judgment, the employer “has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors,” whereupon the burden shifts to the employee to produce “substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus.” (Id. at pp. 558–559.) The court assumed, for purposes of appeal, that defendants carried their initial burden. (Id. at p. 559, fn. 6.) The trial court had found the third (adverse action) and fourth (motive) elements lacking. (Id. at p. 559.)

First analytical move: constructive discharge as the adverse employment action. Quoting Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, the court explained that the constructive-discharge doctrine targets employer “‘end runs’ around wrongful discharge,” and that a “[c]onstructive discharge occurs when the employer’s conduct effectively forces an employee to resign.” (Galvan, supra, 37 Cal.App.5th at pp. 559–560.) The plaintiff must show “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,” and the requisite intent or knowledge “must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees.” (Id. at p. 560.)

The court rejected the trial court’s premise that the employer had to know of the supervisor’s conduct in advance. “Contrary to the trial court’s ruling …, Galvan was not required to show that Dameron knew of Alvarez’s conduct prior to Galvan going out on medical leave in order to establish she was constructively discharged.” (Galvan, supra, 37 Cal.App.5th at p. 560.) Because Turner permits the intent or knowledge to rest with a “supervisory employee,” and Alvarez’s “status as a supervisory employee is undisputed” — she had the section 12926, subdivision (t), authority to discharge and discipline — her intentional creation of the conditions sufficed. (Id. at pp. 560–561.) The court catalogued the evidence: Alvarez “consistently demeaned” the coordinators, “accusing those with thick accents of not being able to speak English,” administered a surprise EKG exam “knowing they would likely fail,” and “told Duke that she planned to terminate Galvan and several other foreign-born unit coordinators.” (Id. at p. 561.) On that record, “a reasonable trier of fact could conclude that a reasonable person in Galvan’s position would have felt compelled to go out on leave and not return.” (Ibid.)

The court dispatched defendants’ “she didn’t witness it” and “unsubstantiated rumor” arguments. Defendants argued Galvan offered “no evidence that she heard, saw, or otherwise knew of the experiences of the other employees.” (Galvan, supra, 37 Cal.App.5th at p. 561.) The court disagreed: Galvan “was required to attend all unit coordinator meetings,” testified that her stress arose because “[i]t all happened during our unit coordinator meeting[s],” and described how Alvarez’s conduct got “worse and worse and worse,” supporting an inference she “was present at all the unit coordinator meetings and heard the comments.” (Id. at pp. 561–562.) Nor was her leave a reaction to a baseless “rumor”; learning of the termination plan was “simply the last straw,” and given that three coworkers under Alvarez had just been “fired or left due to stress,” “a reasonable trier of fact could find that Galvan had reason to believe her coworkers.” (Id. at p. 562.)

Second analytical move — the heart of the decision: accent-based criticism is national-origin discrimination. Turning to motive, the court held Galvan “presented ample evidence that Alvarez acted with a discriminatory motive, and that there was a nexus between Galvan’s protected status and Alvarez’s actions.” (Galvan, supra, 37 Cal.App.5th at p. 562.) Alvarez “focused her criticisms on the unit coordinators’ accents and supposed poor English language skills.” (Ibid.) The court then announced the rule that anchors the case’s significance: “Discrimination on the basis of an employee’s foreign accent is a sufficient basis for finding national origin discrimination.” (Ibid., citing Fragante v. Honolulu (9th Cir. 1989) 888 F.2d 591, 595, and Berke v. Ohio Dept. of Public Welfare (6th Cir. 1980) 628 F.2d 980, 981.) It buttressed the point with the EEOC guidelines, which “define[] national origin discrimination broadly as including … the denial of equal employment opportunity because of … the physical, cultural, or linguistic characteristics of a national origin group.” (Ibid., quoting 29 C.F.R. § 1606.1 (2019).) Combined with Alvarez’s statements that the Filipinos were “stupid,” “too old,” and made “too much money,” this was enough. (Ibid.)

Third analytical move: the supervisor’s intent is the employer’s intent. The court corrected the trial court’s notion that Galvan had to show “Dameron, as opposed to Alvarez,” acted with discriminatory motive. (Galvan, supra, 37 Cal.App.5th at p. 562.) Because the FEHA definition of “employer” reaches agents, and was “intended ‘to ensure that employers will be held liable if their supervisory employees take actions later found discriminatory,’” and because “the adverse action is a constructive discharge that is alleged to have resulted from the intentional acts of a supervisory employee, it is the discriminatory intent of the supervisory employee that is at issue.” (Id. at pp. 562–563, quoting Reno v. Baird (1998) 18 Cal.4th 640, 647, and citing Turner, supra, 7 Cal.4th at p. 1251.)

Fourth analytical move: the harassment claim survives on both motive and severity. Reciting the five-element harassment standard, the court held the statements Alvarez made to Roxas and Duke, “while … not relevant to the issue of whether Galvan was subjected to unwelcome harassment insofar as she was unaware of such statements,” were “relevant to the issue of whether Alvarez’s conduct was motivated by … protected status,” and together with “Alvarez’s criticisms of the unit coordinators’ accents” raised a triable issue on motive. (Galvan, supra, 37 Cal.App.5th at pp. 563–564.) On severity, the court applied the rule that harassment must be “severe enough or sufficiently pervasive to alter the conditions of employment” and “cannot be occasional, isolated, sporadic, or trivial.” (Id. at p. 564.) Because “[e]very time Alvarez met with the unit coordinators, she ‘insult[ed],’ ‘degrad[ed],’ and ‘humiliat[ed] them’” and “‘kept bombarding’ them with negative insults,” a trier of fact could find the conduct “sufficiently severe or pervasive.” (Id. at pp. 564–565.) Accordingly, summary judgment on harassment was error. (Id. at p. 565.)

Significance

Galvan is the rare published California opinion to state, in a holding, that accent-based mistreatment is national-origin discrimination under the FEHA. Although the proposition had long been recognized in federal law — the court relied on the Ninth Circuit’s Fragante and the Sixth Circuit’s Berke — and in the EEOC’s regulatory definition of “linguistic characteristics of a national origin group,” California appellate authority squarely embracing the rule had been thin. (Galvan, supra, 37 Cal.App.5th at p. 562.) By certifying part II for publication, the Third District gave plaintiffs’ counsel a citable California precedent for the principle that ridiculing an employee’s “thick accent” or “poor English” is not a neutral performance critique but evidence of bias against a national-origin group.

The decision is equally important for its agency holding. By reaffirming that, in a constructive-discharge case, “it is the discriminatory intent of the supervisory employee that is at issue” — not the separate knowledge of upper management — the court foreclosed a common defense gambit: arguing that an employer cannot be liable for a frontline supervisor’s hostility unless human resources first learned of and ratified it. (Galvan, supra, 37 Cal.App.5th at pp. 560, 562–563.) That holding flows directly from section 12926, subdivision (d), and Reno v. Baird, and it dovetails with the constructive-discharge intent standard of Turner.

The holding’s limits are real. The court resolved only that triable issues existed; it expressly declined to decide liability. The accent rule is evidentiary — accent-based comments are “a sufficient basis for finding” national-origin bias, not conclusive proof — and an employer may still rebut motive or contest severity at trial. And the published disposition directed summary adjudication of the punitive-damages claim in the defendants’ favor (Galvan, supra, 37 Cal.App.5th at pp. 566–567); the court’s rationale on that point — that Galvan offered no evidence that either Alvarez or the human resources director was an officer, director, or “managing agent” (see Civ. Code, § 3294, subd. (b)) — appears only in the unpublished parts III through VI of the opinion and is therefore not citable (Cal. Rules of Court, rule 8.1115(a)).

Key quotes

“Discrimination on the basis of an employee’s foreign accent is a sufficient basis for finding national origin discrimination.” (Galvan, supra, 37 Cal.App.5th at p. 562.)

“Contrary to the trial court’s ruling and defendants’ assertion on appeal, Galvan was not required to show that Dameron knew of Alvarez’s conduct prior to Galvan going out on medical leave in order to establish she was constructively discharged.” (Id. at p. 560.)

“[W]here, as here, the adverse action is a constructive discharge that is alleged to have resulted from the intentional acts of a supervisory employee, it is the discriminatory intent of the supervisory employee that is at issue.” (Id. at pp. 562–563.)

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Practice pointer

Open questions

The court expressly declined to reach Galvan’s alternative theory of adverse action. “Because we conclude that Galvan presented evidence sufficient to raise a triable issue as to whether she was constructively discharged, we need not consider her alternative argument that the evidence showed that she suffered an adverse employment action even if she was not constructively discharged.” (Galvan, supra, 37 Cal.App.5th at p. 562, fn. 7.) Whether the hospital’s refusal to guarantee her former position after leave was itself an independent adverse action thus remains undecided.

The published opinion also reaches only liability-stage triable issues. The court did not decide whether Alvarez’s conduct in fact constituted national-origin discrimination or harassment, leaving the merits — including whether the EKG exam, the termination plan, and the meeting comments will persuade a jury — for trial. (Galvan, supra, 37 Cal.App.5th at pp. 563, 565.) And the bulk of the court’s analysis of the failure-to-prevent, wrongful-termination, punitive-damages, and evidentiary issues appears in parts III through VI, which were “NOT CERTIFIED FOR PUBLI[C]ATION” and therefore carry no precedential weight. (Id. at pp. 565–566.)