Sada v. Robert F. Kennedy Medical Center

Facts

Rosalva Sada, a registered nurse, was born in Reynosa, Mexico, in 1950, is of Mexican ancestry, and is a United States citizen; she has blond hair, is light complected, and speaks English without an accent. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 144.) After a Texas nursing career and a move to California, she began obtaining work in December 1993 through a nurses’ registry, working several days a month at different hospitals as an independent contractor — a status she did not dispute. (Id. at pp. 144–145 and fn. 1.) From December 1993 through July 28, 1994, she worked in the Medical Center’s “definitive observation unit,” which provides telemetry care — “the electronic monitoring of heart rhythms of cardiac patients.” Until her last day there, “Sada did not receive any oral or written criticism of her performance. In fact, she received numerous compliments on her work, including at least 12 written evaluations by charge nurses that praised her performance.” (Id. at p. 145.)

The unit’s director was Patricia Brendia. When Sada relayed a Hispanic patient’s complaint about the shortage of Spanish-speaking nurses, Brendia responded: “Hispanics spend 20 to 30 years in this country and do not bother to learn English, but they sure can find those public offices where they can get food stamps and all kinds of public assistance.” (Sada, supra, 56 Cal.App.4th at p. 145.) Brendia made “a virtually identical remark” to a certified nursing assistant in the spring of 1994. (Id. at p. 145, fn. 3.)

In May 1994 Sada applied for one of several full-time staff openings in the same unit. At her June 6, 1994 interview, Brendia spoke favorably of Sada’s performance — then asked, “Where are you from?” Told Mexico, Brendia said twice, “I would never have known,” and asked, “How come you don’t have an accent?” On learning that during 1990–1991 Sada had worked at United States hospitals while commuting to her home in Mexico, Brendia’s eyes “popped open,” she stared, and she said, “Well why don’t you just go back to Mexico and work there?” When Sada tried to explain, Brendia interrupted — “We’re going to have to end this” — and told Sada she was not eligible for the job. (Sada, supra, 56 Cal.App.4th at pp. 145–146.) Five other individuals were hired. (Id. at p. 146.) The next day Brendia told Sada “[t]here are no openings” for other nursing positions; a call to the Medical Center’s “job line” revealed numerous openings. (Ibid.)

The Medical Center kept using Sada on a temporary basis. On July 20, 1994, she went to the DFEH and complained that the refusal to hire her was national-origin and ancestry discrimination, asking the agency to attempt informal resolution. On July 22, a DFEH investigator called the Medical Center’s human resources department; within days the HR representative met with Brendia, who said Sada “did not get the job because she was not qualified”; “[n]o other reason was given.” (Sada, supra, 56 Cal.App.4th at p. 146.) Brendia then directed that Sada’s performance be “reevaluated.” The July 28, 1994 reevaluation was performed by Pat Heasley — a nurse whom Sada had previously reported to a physician for patient-care mistakes, and who afterward “would no longer talk to Sada” and gave her “dirty looks.” (Id. at p. 146 and fn. 5.) Heasley documented alleged deficiencies; on July 29, Brendia telecopied the evaluation to Sada’s registry with a “do not send” letter, “which had the effect of terminating Sada’s work at the Medical Center,” without giving Sada any opportunity to explain or refute the accusations. (Id. at pp. 146–147.) Sada denied the accusations in writing and, on August 11, 1994, filed formal DFEH charges for discriminatory hiring and retaliatory termination. (Id. at p. 147.) After the lawsuit was filed, Brendia told a coworker in late 1994: “Those Mexicans. Sada better drop her lawsuit. We are going to send all their asses back to Mexico.” (Ibid.)

Procedural history

Sada sued the Medical Center and Brendia under the FEHA and for intentional and negligent infliction of emotional distress, with spoliation claims against the Medical Center alone. (Sada, supra, 56 Cal.App.4th at p. 147.) In September 1995 the defendants moved for summary judgment or summary adjudication, arguing that Sada was not hired because she was not qualified, that an independent contractor cannot maintain a FEHA retaliation claim, that the termination rested on a legitimate, nonretaliatory reason (patient errors), and that the remaining claims lacked evidence. The trial court concluded “as a matter of law” that Sada was not qualified for the full-time position and entered judgment for the defendants. (Ibid.) On appeal, Sada challenged only the judgment for the Medical Center on the FEHA and emotional-distress claims. (Id. at p. 147.) Division One reversed except as to the negligent-infliction claim, awarding Sada costs on appeal; the opinion was modified on denial of rehearing on July 18, 1997, and the Supreme Court denied review on September 24, 1997. (Id. at p. 162 and print header.)

Issue

Three questions in the published portions: (1) whether the Medical Center established as a matter of law either that Sada was unqualified for the position (defeating her prima facie case) or that she was less qualified than the five nurses hired (a legitimate, nondiscriminatory reason she could not show pretextual); (2) whether triable issues existed on the retaliation claim, where the stated reason — patient-care errors found in a post-DFEH-complaint “reevaluation” — was disputed and the sequence suggested subterfuge; and (3) whether the FEHA’s antiretaliation provision (then Gov. Code, § 12940, subd. (f)) protects a job applicant from retaliation at all — a question the Medical Center framed as whether the Act covers independent contractors. (Sada, supra, 56 Cal.App.4th at pp. 144, 151, 153, 156–158.)

Holding

Reasoning

The framework: strict construction of the movant’s papers, McDonnell Douglas re-sequenced. The court restated the summary judgment standard with the asymmetry that decided the case: “the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed” (Sada, supra, 56 Cal.App.4th at p. 148, quoting Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1558), and the facts alleged in the opposing party’s evidence, with their reasonable inferences, “must be accepted as true” (ibid.). FEHA discrimination claims are measured by the test of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 and Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, as adapted through Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 662–664, and St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 506–511: prima facie case, employer’s burden of production, and the employee’s ultimate burden to show the proffered reason “unworthy of credence” or a discriminatory reason more likely. (Id. at pp. 148–150.) But because McDonnell Douglas “was originally developed for use at trial, not in summary judgment proceedings,” the employer-movant must either negate a prima facie element or show a legitimate reason, and prevails “unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.” (Id. at p. 150, quoting Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) “In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion.” (Ibid., quoting Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 216.) A footnote adds a caution plaintiffs still cite: McDonnell Douglas is not “the only method for evaluating the merit” of a FEHA claim, for the model “was ‘never intended to be rigid, mechanized, or ritualistic.’” (Id. at p. 151, fn. 7, quoting Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1750.)

Step one: an employer claiming “unqualified” must be specific — and consistent. The Medical Center conceded protected class, application, and rejection, disputing only qualification. The court’s threshold instruction has become a practice standard: “when an employer seeks to establish on summary judgment that an applicant was not qualified for a job, it should describe the job qualifications in terms that are as specific and objective as possible.” (Sada, supra, 56 Cal.App.4th at p. 151.) Brendia’s declaration said Sada could not answer dysrhythmia questions, was “extremely reluctant” to take a dysrhythmia exam, and lacked “important” patient information. (Id. at pp. 151–152.) Sada’s declaration answered each point: no dysrhythmia questions were ever asked, she said “yes” to the exam, and Brendia never criticized her patient knowledge. “Plainly, by disputing each of the points made in Brendia’s declaration, Sada raised triable issues of material fact with respect to the showing made by the Medical Center.” (Id. at p. 152.) The employer’s own witness then finished the job: Brendia testified at deposition that Sada’s past experience “wasn’t unsatisfactory” and that she “had [the] minimum qualifications” — “[t]his testimony alone indicates that Sada was sufficiently qualified to make out a prima facie case.” (Ibid.) And the court refused to ignore the most practical datum: Sada applied for the “same job” she was already performing, with consistent praise, under a written policy that registry nurses “will meet the same expectations for Standards of Care, Practice, and Performance as those of Hospital employees.” (Ibid.)

Step two: conclusory hiree descriptions cannot establish comparative superiority. The FEHA “does not prohibit an employer from rejecting a job applicant because she is less qualified than the person selected” (Sada, supra, 56 Cal.App.4th at p. 153), and the Medical Center argued Sada was less qualified than the five nurses hired. But its proof was Brendia’s opinion that Sada’s experience did not “come close” to the hirees’, supported by thumbnail sketches — one had two years of telemetry and would work nights (though there was “no evidence that Sada was unwilling to work at night or that she was even asked”); one had “extremely in-depth knowledge of EKGs”; one had “critical care and telemetry experience.” (Id. at pp. 153–154 and fn. 12.) “Given the general and sometimes conclusory nature of Brendia’s description of the applicants who were hired, we cannot say that, as a matter of law, they were more qualified than Sada.” Sada had experience in the same areas; “[a]bsent evidence indicating how much experience the hiree had or how that experience might have differed from Sada’s, we cannot adequately compare the two applicants.” (Id. at pp. 153–154.) Brendia’s admission that she “wouldn’t hire anyone just on their past experience” compounded the failure, because the Medical Center never identified “what factors other than past experience it considered.” Viewing the evidence most favorably to Sada, she “was at least as qualified as one or more of the hirees.” (Id. at p. 154.)

Pretext: the decisionmaker’s remarks were evidence, not stray comments. Assuming equal qualifications, Sada also carried her responsive burden under Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735 — the “substantial responsive evidence” standard: “the remarks attributed to Brendia — before, during, and after the job interview — permit an inference that the Medical Center did not consider Sada’s application on its merits but, instead, made a hiring decision based on Sada’s national origin and ancestry.” (Sada, supra, 56 Cal.App.4th at p. 154.) In a footnote that plaintiffs quote against every stray-remarks argument, the court held: “Brendia’s derogatory comments about Mexicans and her statements to Sada during the job interview raise a triable issue of fact as to pretext. They do not constitute the type of isolated or stray remarks that are immaterial in proving a discriminatory motive.” (Id. at p. 154, fn. 15.) The court closed the hiring analysis with balance: courts do “not sit as a super-personnel department that reexamines an entity’s business decisions” (id. at p. 155, quoting Dale v. Chicago Tribune Co. (7th Cir. 1986) 797 F.2d 458, 464), and sending the case to trial merely “give[s] effect to the FEHA’s founding principle” that unlawful denial of employment opportunity “foments domestic strife and unrest” and “deprives the state of the fullest utilization of its capacities for development and advance.” (Ibid., quoting Gov. Code, § 12920.)

Retaliation: timing, decisionmaker identity, and prior performance make a triable case. Applying McDonnell Douglas to the retaliation claim through Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476–479, the court recited the prima facie elements — protected activity, adverse action, causal link — and the pretext principle that carried the day: “Pretext may . . . be inferred from the timing of the company’s termination decision, by the identity of the person making the decision, and by the terminated employee’s job performance before termination.” (Sada, supra, 56 Cal.App.4th at pp. 155–156.) Contacting the DFEH was undisputedly protected activity even without a formal charge. (Id. at p. 156, fn. 17.) The Medical Center’s stated reason — patient-care errors found in Heasley’s evaluation — was itself disputed, since Sada denied each accusation in writing and by declaration. (Id. at p. 156.) The pretext evidence was the chronology: thirteen written evaluations praising her work and not one criticism until “Brendia learned about Sada’s DFEH complaint on or about July 26, 1994. Two days later, at Brendia’s direction, Sada’s performance was ‘reevaluated’” — by a nurse with a personal grudge — and “[b]ased on Sada’s evaluation — the first to criticize her — Brendia decided to terminate Sada’s services,” followed months later by the “Those Mexicans” threat. (Id. at pp. 156–157.) The court rejected the argument that Heasley’s ignorance of the DFEH complaint cleansed the decision: “Brendia, who did know about the complaint, was the person who ordered the ‘reevaluation’ in the first place, and she terminated Sada’s services based on Heasley’s accusations.” (Id. at p. 157, fn. 21.)

Coverage: the antiretaliation provision protects applicants — the independent-contractor question left open. The Medical Center argued “forcefully” that the FEHA does not apply to independent contractors, marshaling FEHC decisions and regulations, New York precedent, and Title VII case law. (Sada, supra, 56 Cal.App.4th at pp. 158–159.) The court sidestepped: “we find it unnecessary to decide in this case whether the FEHA protects independent contractors against retaliation. This is so because Sada’s termination claim is not premised on her status as an independent contractor. Rather, she was allegedly retaliated against because she complained about discrimination as an applicant for an employee position.” (Id. at p. 159.) Since “the statutory language makes clear that an applicant — a ‘person’ who seeks to be hired or employed — is protected against discrimination,” the court could “think of no reason why the word ‘person’ . . . should be interpreted more narrowly for purposes of the antiretaliation provision,” particularly given the command that the Act “be construed liberally” (Gov. Code, § 12993, subd. (a)). (Id. at pp. 159–160.) The policy point followed: “The antiretaliation provision should not be interpreted in a way that encourages silence among those who reasonably believe that an employer has refused to hire them for prohibited reasons.” (Id. at p. 160.) That the retaliation struck when Sada was “technically a ‘former applicant’” did not matter — “[t]o hold otherwise would insulate a whole category of retaliatory conduct from liability” — reasoning the court found confirmed by Robinson v. Shell Oil Co. (1997) 519 U.S. 337, which read Title VII’s antiretaliation provision to cover former employees to preserve “unfettered access to statutory remedial mechanisms.” (Id. at pp. 160–161.) Finally, the injury counted: Sada was “‘expelled’ or ‘discharged’” and “denied further compensation as a temporary nurse” — “if a negative job reference can constitute an unlawful form of retaliation . . . , so can the loss of compensation from temporary work.” (Id. at pp. 161–162.)

Significance

Sada is the employee-side counterweight in the 1990s line that built California’s summary judgment doctrine — the same era that produced Martin v. Lockheed Missiles & Space Co. and Hersant, decisions employers still cite daily. Where those cases show oppositions failing for want of substance, Sada shows the machinery running in the other direction: because the movant’s evidence is strictly construed, an employer that supports its “legitimate reason” with a decisionmaker’s conclusory, comparative opinions — rather than specific, documented qualifications — has not carried its burden at all, and the plaintiff’s disputing declaration plus the employer’s own admissions creates triable issues without more. (56 Cal.App.4th at pp. 148, 152–154.) Its retaliation holding assembled the now-standard pretext triad — timing, decisionmaker identity, prior performance — from Flait, and its footnote 21 is an early articulation of what practitioners now call cat’s-paw analysis: a facially neutral evaluator cannot launder the retaliatory motive of the supervisor who commissioned the evaluation and made the decision. (Id. at pp. 156–157 and fn. 21.) Later framework decisions rely on Sada expressly — King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426 cites it for the basic McDonnell Douglas-on-MSJ structure — and the Supreme Court’s subsequent decisions in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 and Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133 confirmed the twin premises of its approach: the employer’s explanation must be capable of belief, and disbelief of that explanation, combined with the prima facie showing, can carry the plaintiff to a jury.

The coverage holding has had its own doctrinal afterlife. Sada‘s rule that FEHA retaliation protection follows the applicant, not the employment relationship, anticipated the Supreme Court’s expansive reading of protected activity in Yanowitz v. L’Oréal USA, Inc. (2005) 36 Cal.4th 1028 — including Sada‘s footnote 27 point that opposition is protected where the complainant holds “a reasonable, good faith belief” that the practice is unlawful, even if no violation is ultimately proved. (56 Cal.App.4th at p. 160, fn. 27.) The independent-contractor question the court reserved was later addressed in part by the Legislature, which extended the FEHA’s harassment prohibition to persons providing services under contract; the discrimination and retaliation provisions of Government Code section 12940 (the antiretaliation clause, subdivision (f) in Sada‘s day, is today’s subdivision (h)) remain tied to employees and applicants — which keeps Sada‘s applicant-based theory strategically important for contingent workers. One caution: Sada sued Brendia individually and did not appeal the judgment in Brendia’s favor (id. at p. 147); the Supreme Court later held in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 that nonemployer individuals are not personally liable for FEHA retaliation, so the modern defendant on such facts is the entity alone.

Key quotes

“Given the general and sometimes conclusory nature of Brendia’s description of the applicants who were hired, we cannot say that, as a matter of law, they were more qualified than Sada.” (Sada, supra, 56 Cal.App.4th at pp. 153–154.)

“Pretext may . . . be inferred from the timing of the company’s termination decision, by the identity of the person making the decision, and by the terminated employee’s job performance before termination.” (Sada, supra, 56 Cal.App.4th at p. 156, quoting Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476–479.)

“The antiretaliation provision should not be interpreted in a way that encourages silence among those who reasonably believe that an employer has refused to hire them for prohibited reasons.” (Sada, supra, 56 Cal.App.4th at p. 160.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The largest question is the one the court refused to answer: “whether the FEHA protects independent contractors against retaliation” — expressly reserved because Sada’s claim rested on her applicant status, with the court “not suggest[ing] that applicants for independent contractor positions have the same (or any) protection under the Act.” (Sada, supra, 56 Cal.App.4th at pp. 159–160 and fn. 29.) The opinion likewise does not decide how the McDonnell Douglas machinery applies where direct evidence of discriminatory intent exists — footnote 7 notes the parties both invoked the framework and that it is not “the only method,” flagging the direct-evidence and mixed-motive alternatives without exploring them. (Id. at p. 151, fn. 7.) The court did not define how much comparative detail an employer must supply to win the qualifications point as a matter of law — only that these thumbnail descriptions were too thin — leaving the specificity threshold to case-by-case development. (Id. at pp. 153–154.) And because parts C through E were not published, the opinion gives no citable guidance on the emotional-distress and spoliation theories that traveled with the FEHA claims. (See id. at p. 162 [parts C.–E. omitted from publication].) Finally, the court assumed without discussion that the FEHA claim against the individual supervisor was gone (Sada did not appeal it) — the individual-liability question was settled against plaintiffs a decade later in Jones v. Lodge at Torrey Pines Partnership. (Id. at p. 147.)