Ortiz v. Dameron Hospital Assn.

Facts

The statutory framework. The California Fair Employment and Housing Act (FEHA) makes it unlawful “[f]or an employer … or any other person, because of … national origin … [or] age … to harass an employee … .” (Gov. Code, § 12940, subd. (j)(1); Ortiz, supra, 37 Cal.App.5th at p. 581.) A companion provision, enacted to codify the standard for actionable harassment, declares that “harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.” (§ 12923, subd. (a); Ortiz, supra, at p. 582.) The same statute provides that “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (§ 12923, subd. (b); Ortiz, supra, at p. 582.) The companion discrimination claim arose under section 12940, subdivision (a), which forbids an employer, “because of a protected classification,” from discriminating against an employee “in compensation or in terms, conditions, or privileges of employment.” (Ortiz, supra, at p. 577.)

The plaintiff. Nancy Ortiz, a registered nurse, worked for Dameron Hospital Association for approximately 10 years. (Ortiz, supra, 37 Cal.App.5th at p. 573.) She “was born in the Philippines and immigrated to the United States,” English “is her second language and she speaks with a thick accent,” and she “was over 40 years old when her employment with Dameron ended in July 2012.” (Ibid.) She worked as a unit coordinator in the medical-surgical department, overseeing other nurses; like Ortiz, “the vast majority of unit coordinators in those departments were Filipino.” (Ibid.)

The supervisor’s conduct. In mid-2011, Doreen Alvarez became director of the medical-surgical and telemetry departments and Ortiz’s direct supervisor. (Ortiz, supra, 37 Cal.App.5th at p. 573.) According to the evidence, “[e]very time Alvarez met with the unit coordinators, she provided ‘negative feedback,’ and ‘insult[ed],’ ‘degrade[d],’ and ‘humiliate[d]’ 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 said, “I don’t know how Dameron gets you guys. Your accents are thick. [You] don’t know what [you are] doing.” (Ibid.) She told the group 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 follow directions better than those unit coordinators who spoke English as a second language.” (Ibid.) Introducing a new White unit coordinator, she said, “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.” (Id. at pp. 573–574.) She told the unit coordinators they could “step down, step up or step out.” (Id. at p. 574.)

Statements of animus to coworkers. Alvarez also told clinical manager Bassey Duke that the Filipino unit coordinators were “too old and had been there too long,” that they were “old dummies” who “don’t speak English,” and that she “want[ed] to get rid of all of them”; she complained that “[t]hese old Filipinos are making way too much money.” (Ortiz, supra, 37 Cal.App.5th at p. 574.) She gave Duke the names of unit coordinators she wanted to remove, including Ortiz, because they were “dumb,” “didn’t speak English,” “didn’t represent the face of U.C. Davis,” and “ma[d]e too much money.” (Ibid.) She told manager Roman Roxas that the Filipinos are “stupid,” adding, “I don’t even know what they are saying half the time,” and “I don’t even know how they got the job speaking the way they do.” (Ibid.) She separately said “she was tired of attending meetings where Filipinos and minority workers over 40 were present.” (Ibid.)

The transfer, the evaluation, and the sleeping accusation. In November 2011, while Ortiz was on vacation, Alvarez “transferred her to the orthopedic department, where Ortiz had little to no experience,” without “any orientation or training,” while privately telling Duke she “knew Ortiz ‘would not make it there.’” (Ortiz, supra, 37 Cal.App.5th at p. 575.) Ortiz’s first post-transfer evaluation, on July 24, 2012, rated her “2.73,” below the “3” needed for satisfactory performance, triggering a performance improvement plan. (Ibid.) One cited deficiency was missing a meeting Ortiz had been excused from to attend her mother’s funeral in the Philippines — leave Alvarez had approved. (Id. at pp. 575–576.) At the same meeting, Alvarez “told Ortiz that she had been observed sleeping on the job,” a “terminable offense,” and “advised Ortiz that she likely would be fired”; Ortiz denied it. (Id. at p. 576.) Duke testified that Alvarez “pressured him to say that he had seen Ortiz sleeping so that Alvarez could ‘go ahead and fire her,’” but he refused “to lie about” what he “did not observe” and was then terminated. (Ibid.) Ortiz resigned the next day, stating she did so “because of the stress and anxiety [she] was suffering and because [she] did not want to have a termination on [her] record.” (Ibid.)

Procedural history

Ortiz sued Dameron and Alvarez under FEHA, asserting causes of action for discrimination (§ 12940, subd. (a); against Dameron), harassment (§ 12940, subd. (j); against both), retaliation (§ 12940, subd. (h); against Dameron), failure to take all reasonable steps to prevent discrimination and harassment (§ 12940, subd. (k); against Dameron), and injunctive relief, with a prayer for punitive damages. (Ortiz, supra, 37 Cal.App.5th at pp. 572–573.) The trial court (Hon. Carter P. Holly) granted defendants summary judgment, finding Ortiz could not make a prima facie showing of discrimination because she could not show an adverse employment action, and could not make a prima facie showing of harassment because she could not show the conduct was “based on her national origin or age.” (Id. at p. 573.) The remaining claims were treated as derivative and dismissed; Ortiz did not oppose summary judgment on retaliation and did not challenge that ruling on appeal. (Ibid.)

The Court of Appeal, Third Appellate District, reversed. (Ortiz, supra, 37 Cal.App.5th at p. 572.) The opinion is certified for partial publication: parts I (discrimination), II (harassment), and VI (evidentiary rulings) are published; parts III–V are not, and so are not citable. (Id. at p. 568 & pp. 583–584; see Cal. Rules of Court, rule 8.1115.) The decision was one of six appeals before the same court by former Dameron nurses who reported to Alvarez. (Ortiz, supra, at p. 573, fn. 4.) The Supreme Court denied review on October 9, 2019.

Issue

On the harassment count: whether Ortiz raised triable issues that she was subjected to unwelcome harassment based on her national origin and age, and that the conduct was severe enough or sufficiently pervasive to create a hostile work environment, so as to defeat summary judgment. (Ortiz, supra, 37 Cal.App.5th at pp. 581–583.) On the discrimination count: whether disputed facts existed about whether Ortiz was constructively discharged and whether the supervisor’s discriminatory animus was attributable to the employer notwithstanding the employer’s asserted lack of knowledge. (Id. at pp. 577–581.) The court did not reach the merits of parts III–V (unpublished), and did not disturb the unopposed grant of summary adjudication on retaliation. (Id. at p. 573.)

Holding

Reasoning

The summary-judgment lens. The court reviewed de novo, identifying the issues raised by the pleadings, asking whether the moving party negated the opponent’s claims, and, if so, whether the opposition demonstrated “the existence of a triable, material issue of fact.” (Ortiz, supra, 37 Cal.App.5th at p. 577.) It summarized the evidence “in the light most favorable to Ortiz, the party opposing summary judgment, resolving any doubts concerning the evidence in her favor.” (Id. at p. 573.) That posture is the engine of the decision: the question throughout was not who should win but whether a jury could reasonably find for the plaintiff.

Harassment based on protected status — the prima facie elements. Drawing on Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876, the court set out the five elements of a hostile-work-environment claim: the plaintiff “(1) … is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz, supra, 37 Cal.App.5th at p. 581.) These are the elements reflected in CACI Nos. 2521A and 2522A. The trial court had faulted Ortiz only on the third element — that the conduct was “based on” her national origin or age — and that is where the court concentrated. (Ibid.)

The “based on protected status” nexus — accent as national origin, plus age. The court held the nexus was amply supported. Alvarez “consistently criticized the unit coordinators’ accents and assumed, based on their accents, that they could not speak English.” (Ortiz, supra, 37 Cal.App.5th at p. 581.) Citing federal authority, the court reaffirmed that “[d]iscrimination on the basis of an employee’s foreign accent is a sufficient basis for finding national origin discrimination,” noting the EEOC’s broad definition that reaches denial of opportunity “because an individual has the physical, cultural or linguistic characteristics of a national origin group.” (Id. at pp. 580–581 & p. 582.) The transfer and false sleeping accusation, “alone,” did not establish a protected-status basis; but Alvarez’s statements to Roxas and Duke — that the Filipino unit coordinators were “stupid,” “too old,” “dummies” who “didn’t speak English,” and made “too much money,” and that she “want[ed] to get rid of” them, including Ortiz — supplied “sufficient evidence from which a reasonable trier of fact could infer” that those acts were “based on Ortiz’s race or age,” i.e., evidence of “a discriminatory animus toward the older, Filipino unit coordinators.” (Id. at p. 582.)

Severe or pervasive — the objective/subjective standard. The court rejected defendants’ argument that the conduct was not severe or pervasive enough. (Ortiz, supra, 37 Cal.App.5th at p. 582.) Quoting Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462, it required conduct “severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [protected status],” measured by both an objective standard (“from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances’”) and a subjective one (the employee must “perceive the work environment to be hostile”). (Id. at pp. 582–583.) The court invoked the statutory codification of these principles, including that a “single incident” can suffice and that “a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.” (§ 12923, subds. (b), (c); id. at pp. 582–583.) It distinguished lawful personnel management — merely “requesting unit coordinators to use proper grammar in performance evaluations” — from what occurred here: Alvarez’s comments “went far beyond” that, and the complained-of conduct also included “involuntarily transferring Ortiz to a unit where she had little or no experience without providing her with any training, and falsely accusing her of sleeping on the job, a terminable offense.” (Id. at p. 583.) On that totality, a jury could find the conduct severe or pervasive. (Ibid.)

Constructive discharge as the adverse action. On the discrimination count, the court took up the trial court’s ruling that Ortiz suffered no adverse employment action. Under Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, “[c]onstructive discharge occurs when the employer’s conduct effectively forces an employee to resign,” severing the relationship “involuntarily by the employer’s acts, against the employee’s will,” so that it “is legally regarded as a firing rather than a resignation.” (Ortiz, supra, 37 Cal.App.5th at p. 578.) The employee must show conditions “so intolerable or aggravated at the time of the … resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign,” with the requisite intent or knowledge held by “the employer or those persons who effectively represent the employer, … including supervisory employees.” (Id. at pp. 578–579.) The conditions must be “unusually ‘aggravated’ or amount to a ‘continuous pattern.’” (Id. at p. 579.) On this record — consistent demeaning of the unit coordinators, the untrained transfer “knowing she would likely fail,” and the false sleeping accusation — a reasonable trier of fact could find Ortiz’s conditions so intolerable that resignation was compelled. (Ibid.)

Rejecting the employer-knowledge defense — supervisor animus is the employer’s. The court rejected the trial court’s premise that, because “Dameron was not aware of any issues regarding Alvarez prior to [Ortiz’s] resignation,” there was “no nexus” between Alvarez’s conduct and the employer. (Ortiz, supra, 37 Cal.App.5th at pp. 577–578, 580.) An employee “was not required to show that Dameron knew of Alvarez’s conduct prior to … resignation” to establish constructive discharge; it suffices that a supervisory employee intentionally created the conditions. (Id. at p. 579.) FEHA’s definition of “employer” includes “person[s] acting as an agent of an employer” (§ 12926, subd. (d)), a definition “intended ‘to ensure that employers will be held liable if their supervisory employees take actions later found discriminatory.’” (Id. at pp. 580–581, quoting Reno v. Baird (1998) 18 Cal.4th 640, 647.) Where “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 p. 581.) Alvarez’s status as a supervisor — with authority to “transfer, suspend, … promote, discharge, assign, reward or discipline” (§ 12926, subd. (t)) — was “undisputed.” (Id. at p. 579.)

Evidentiary error (published part VI). In the published part VI, the court held the trial court abused its discretion in sustaining several objections to Ortiz’s evidence. Most significant for the harassment theory, Roxas’s account of Alvarez’s derogatory remarks was “not hearsay because it was not offered for the truth of the matter asserted … but rather to show discriminatory animus,” and in any event was admissible “because it is being offered against the declarant (Alvarez) in an action to which she is a party.” (Ortiz, supra, 37 Cal.App.5th at pp. 584–585; see Evid. Code, §§ 1200, 1220.) Duke’s testimony that Alvarez asked him to falsely say he saw Ortiz sleeping “so that Alvarez could ‘go ahead and fire her’” was likewise admissible as a party admission and relevant to coercion and the hostile environment. (Id. at p. 585.)

No concurrence or dissent. The opinion was unanimous; Justices Robie and Duarte concurred without separate writing. (Ortiz, supra, 37 Cal.App.5th at p. 586.) Given the parallel rulings, the court took the unusual step of directing reassignment to a different trial judge on remand. (Ibid.)

Significance

Ortiz is a useful published vehicle for two propositions that recur in FEHA harassment litigation. First, it confirms — citing Fragante v. Honolulu (9th Cir. 1989) 888 F.2d 591 and the EEOC guidelines — that ridicule of an employee’s foreign accent and “thick” English is harassment “based on” national origin, not neutral commentary on job skills. (Ortiz, supra, 37 Cal.App.5th at pp. 580–581 & p. 582.) Accent-based abuse of a workforce that was “99 percent Filipino” thus carries the protected-status nexus that the third element of the prima facie case demands. Second, the decision applies the 2019 codification of the harassment standard, Government Code section 12923, in a published appellate opinion — invoking the Legislature’s declarations that a single incident may suffice, that stray or non-decisional remarks are admissible circumstantial evidence, and that the severe-or-pervasive inquiry turns on the totality of the circumstances. (Id. at pp. 582–583.) These elements track CACI Nos. 2521A (hostile work environment — conduct directed at plaintiff) and 2522A (the “severe or pervasive” factor).

The decision also reinforces that, for harassment and for constructive-discharge-based discrimination, a supervisor’s animus is the employer’s under section 12926, subdivision (d); a defendant cannot win summary judgment merely by showing upper management never learned of the supervisor’s conduct. (Ortiz, supra, 37 Cal.App.5th at pp. 580–581.) The holding’s reach is bounded by its procedural posture — it is a reversal of summary judgment, deciding only that triable issues exist, not that Ortiz must prevail — and by partial publication: parts III–V are not citable. (Id. at p. 568.)

Key quotes

“Discrimination on the basis of an employee’s foreign accent is a sufficient basis for finding national origin discrimination.” (Ortiz, supra, 37 Cal.App.5th at pp. 580–581.)

“[T]he complained of conduct was not limited to Alvarez’s conduct at the unit coordinator meetings, but included involuntarily transferring Ortiz to a unit where she had little or no experience without providing her with any training, and falsely accusing her of sleeping on the job, a terminable offense. Based on the evidence presented, a reasonable trier of fact could conclude that the conduct complained of was sufficiently severe or pervasive … .” (Id. at p. 583.)

“[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 p. 581.)

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Practice pointer

Open questions

The unpublished merits (parts III–V). Because the opinion is certified for publication “with the exception of parts III to V of the Discussion,” the analysis in those parts — and any issues they resolved — is neither published nor citable. (Ortiz, supra, 37 Cal.App.5th at p. 568; Cal. Rules of Court, rule 8.1115.) Practitioners relying on Ortiz must confine themselves to parts I, II, and VI.

The prima facie discrimination case beyond the adverse-action element. The court assumed for purposes of appeal that defendants had made the requisite showing that one or more prima facie elements was lacking, and reversed because triable issues existed on constructive discharge and the supervisor’s attributable animus. (Ortiz, supra, 37 Cal.App.5th at p. 578, fn. 5.) It therefore did not resolve, as a matter of substantive proof, whether Ortiz will ultimately establish each element at trial — only that summary judgment was improper.

The alternative adverse-action theory. Having found a triable issue on constructive discharge, the court expressly declined to reach Ortiz’s “alternative argument that the evidence showed that she suffered an adverse employment action even if she was not constructively discharged.” (Ortiz, supra, 37 Cal.App.5th at p. 580, fn. 6.)