Birden v. The Regents of Univ. of Cal.

NICOLE BIRDEN, Plaintiff and Respondent, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Appellant.

B302956

California Court of Appeals, Second District, Second Division

August 12, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC663189 Michael L. Stern, Judge. Affirmed as modified.

Horvitz & Levy, Karen M. Bray, Bradley S. Pauley, Eric S Boorstin; Gordon Rees Scully Mansukhani, Stephen E. Ronk Erika L. Shao; AlvaradoSmith and Raul F. Salinas for Defendant and Appellant.

V. James DeSimone Law, V. James DeSimone, Carmen D. Sabater and Ryann E. Hall for Plaintiff and Respondent.

CHAVEZ, J.

The Regents of the University of California (appellant or the Regents) appeal from a judgment entered following a jury trial in this action for violations of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) brought by Nicole Birden (respondent), an African-American phlebotomist formerly employed at UCLA Medical Center. The case went to trial on three FEHA causes of action: wrongful termination based on racial discrimination, wrongful termination in retaliation for complaints, and racial harassment (hostile work environment). Respondent claimed noneconomic damages based on emotional distress, as well as economic damages, which were exclusively described as past and future loss of earnings stemming from her termination.

By special verdict the jury determined that respondent was not wrongfully terminated, finding that race was not a substantial motivating reason for respondent's termination and that respondent did not complain about racial discrimination. Thus her termination was not wrongful. However, the jury did find that respondent was subjected to unwanted harassing conduct because she was African-American.

Although the jury found that respondent was not wrongfully terminated, it awarded respondent past economic damages (in the form of lost wages) in the amount of $190, 033.92, and future economic damages (in the form of lost wages) in the amount of $86, 112, for a total of $276, 145.92 in economic damages. The jury also awarded respondent $500, 000 in past noneconomic damages and $800, 000 in future noneconomic damages, for a total of $1.3 million in noneconomic damages. The trial court awarded respondent both the economic and noneconomic damages, for a total award of $1, 576, 145.92.

The Regents moved for a new trial, arguing, among other things, that the award of $276, 145.92 in economic damages (lost wages) was improper due to the jury's specific finding that respondent's termination was lawful. The trial court denied the motion concluding that the jury's findings on damages were justified. The Regents appeal only the narrow issue of whether the award of $276, 145.92 for lost wages was lawful in light of the jury's determination that respondent was not wrongfully terminated.

We find that the jury's award of economic damages in the form of lost wages violated the jury instructions and was fundamentally inconsistent with the jury's specific finding that respondent was not wrongfully terminated. We therefore strike the award of $276, 245.92 in past and future economic damages. As modified, we affirm the judgment.

FACTUAL BACKGROUND

Respondent began her employment as a phlebotomist at UCLA Medical Center in March 2015 as a temporary employee. In October 2015 respondent was hired as a per diem phlebotomist. Per diem employees are at-will workers who supplement the staff of career health professionals at the medical center. Some of the medical center's phlebotomists acted as dispatchers, assigning other phlebotomists to draw patients' blood throughout the day in various parts of the hospital. Respondent did not act as a dispatcher; instead, she was required to draw blood at the direction of the dispatchers.

Harassment by coworkers

When respondent began working at UCLA Medical Center she heard a rumor that her coworkers were saying “there is a new Black girl in the laboratory with an attitude.” Respondent thought this rumor was without basis and was bothered by it. When respondent entered the lab she heard offensive comments in Spanish, such as “morena, ” “vaga, ” “mentiroso” and “perizoso, ”^[1] made by phlebotomists Maria Contreras, Virginia Martinez, Mayra Rivers and Oscar Torres. The comments made respondent feel unwelcome.

Another phlebotomist, Brian Andrade, used the word “nigger”^[2] in casual conversation. Andrade addressed respondent as the n-word a number of times. Andrade played music using the n-word daily. Supervisors were aware of the music as they would enter the laboratory frequently while the music was playing. Respondent told Andrade not to use the n-word to her, but he did not comply. Respondent found use of the n-word offensive, although she did not think Andrade was malicious in his use of the word.

Respondent described an “air of mistrust” about her among her supervisors and coworkers. Respondent observed the lead dispatcher, Torres, standing behind doors seemingly watching her. Respondent also described other rumors that circulated about her that were untrue. Specifically a rumor started by Rivers that respondent stuck a patient with a needle seven times without drawing blood. Respondent found this insulting because it suggested that she was not good at her job. In addition, the same coworkers who would use derogatory terms about her would accuse respondent of not communicating with them when they acted as dispatchers. Respondent would routinely leave her phone on the cart outside the door or in the hallway while she was drawing blood. When she returned dispatch's phone calls she would be scolded and questioned as to her whereabouts and asked what she was doing. Phlebotomists, including Contreras and Elizabeth Reyes, would complain to Chanida Anukul, respondent's supervisor, that respondent was not answering her phone.

Respondent testified that she was assigned a disproportionate number of blood draws. The large number of draws was challenging, and respondent would have to prioritize a number of new and urgent draws throughout the day. Respondent was also not able to take timely breaks. Respondent testified that when she was assigned additional blood draws she knew there were other phlebotomists in the laboratory that could have done the work. Rivers complained to Anukul that when Rivers attempted to make additional assignments to respondent, respondent reacted in a hostile manner.

In addition, respondent claims that Contreras and Martinez intentionally manipulated the way blood draws were assigned to make it appear as if respondent did not complete all of her draws. Rivers and Martinez would also falsely complain to Anukul that respondent was not finishing her work. In addition, Rivers and Martinez accused respondent of mislabeling her specimens.

Respondent told Anukul that she was being falsely accused and that she always performed her blood draws unless the patient refused or was otherwise unavailable. Respondent attempted to bring her concerns about these false accusations to Anukul's attention.

Complaints about respondent

In November 2015, respondent was observed by lead phlebotomist Brett Westfall crossing a street near the medical center when she should have been inside performing blood draws. Westfall reported his observation to Anukul and Torres (the lead dispatcher). Westfall noted that respondent was wearing her lab coat, which is not to be worn offsite per the medical center's policy. Anukul then told respondent that she should communicate with dispatchers if she needed to leave the work area outside of her break time.

The same month a coworker, Luisha Lauraeno, accompanied respondent to a blood draw on a patient in police custody. The testimony was in conflict as to whether respondent asked Lauraeno to accompany her, or whether Lauraeno offered to go along with respondent because she did not have an assignment at that time. Anukul called respondent into her office to discuss the incident. Anukul counseled respondent regarding the importance of the dispatch system and the need to inform dispatchers if she needed assistance. Respondent felt she was wrongly accused of asking Lauraeno to go with her. Respondent told Anukul that she did not ask Lauraeno to accompany her.

Several dispatchers continued to complain that, during her shifts, respondent failed to answer her cell phone, which was provided by the medical center for the purpose of receiving calls and directions from the dispatchers. Dispatcher Rivers reported an incident during which respondent did not answer her cell phone for over 30 minutes. When she finally answered, she was rude, confrontational, and hung up abruptly. Rivers described respondent as “hostile, ” and indicated that respondent slammed the phone to hang up. Rivers felt harassed by respondent's behavior. Rivers asked for assistance with respondent's behavior as it was “happening with most of the female dispatchers when working with her and now it[']s affecting patient care.”

Respondent's complaints about harassment and bullying

On December 4, 2015, respondent complained to Anukul about her coworkers making false complaints: “[i]t is really disturbing that my name keeps floating around in a non positive manner and a selective few people are being followed around on the floor.... [¶] [H]arassment and bullying is not allowed, this is a constant and ongoing problem....” Anukul did not bring the complaint to human resources despite respondent's complaints that she was receiving excessive phone calls from dispatch.

Respondent was the subject of other petty complaints in 2016, such as a false claim that she was riding up and down in the elevator. Respondent told...