Khalil v. The Cal. Dep't of State Hosps.

1

VICTOR KHALIL, Plaintiff and Appellant, v. THE STATE OF CALIFORNIA DEPARTMENT OF STATE HOSPITALS, Defendant and Respondent.

F085049

California Court of Appeals, Fifth District

July 22, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County. No 20CECG02085 Kristi C. Kapetan, Judge.

Brent S. Buchsbaum for Plaintiff and Appellant.

Rob Bonta, Attorney General, Chris A. Knudsen, Jerry J. Deschler Jinnifer D. Pitcher, and Michael P. Purcell, Deputy Attorneys General, for Defendant and Respondent.

OPINION

POOCHIGIAN, Acting P. J.

This is an employment dispute between appellant Dr. Victor Khalil (Khalil) and his former employer respondent the State of California Department of State Hospitals (DSH). DSH obtained summary judgment on the claims alleged against it, including a claim for retaliation under the Fair Employment and Housing Act (FEHA), Government Code section 12940, subdivision (h). In this appeal, Khalil contends that the trial court erred by: (1) concluding that there was no admissible direct evidence of retaliation; (2) concluding that there was insufficient circumstantial evidence of retaliation; and (3) comprehensively granting all of DSH's hearsay objections. We reverse and remand.

PROCEDURAL BACKGROUND

On March 24, 2020, Khalil filed his complaint against DSH.

On March 18, 2022, DSH filed a motion for summary judgment on all claims. In part, DSH argued that Khalil could not establish a prima facie case of retaliation or show that its nonretaliatory reason for taking adverse action against him was pretextual. Hearing on the motion was set for August 3 2022.

On July 20, 2022, Khalil filed his opposition to DSH's motion for summary judgment, which included an opposition declaration.

On July 29, 2022, DSH filed a reply to Khalil's opposition, as well as objections to Khalil's opposition declaration.

On August 2, 2022, Khalil filed a declaration in response to DSH's objections.

On August 3, 2022, the trial court adopted a tentative ruling granting DSH's motion for summary judgment.^[1] The tentative ruling explained in part that although Khalil had filed a declaration that described how two DSH executives had "openly discuss[ed] wanting to retaliate against [Khalil] for having made numerous complaints about discrimination and mistreatment," DSH's objection of hearsay was correct and therefore sustained. The tentative ruling also sustained all DSH's hearsay objections to fifteen other aspects of Khalil's declaration, with one limited exception for part of an exhibit. A minute order issued the same day that adopted the tentative ruling without change.

On August 11, 2022, judgment was entered in favor of DSH.

On October 14, 2022, Khalil appealed the order on DSH's motion for summary judgment and corresponding judgment of the court.

FACTUAL BACKGROUND

Beginning in 2014, Khalil was the chief dentist at Coalinga State Hospital (the Hospital) and supervised other dentists in the dental department. As a supervisor, Khalil had concerns about the competency of another dentist, Dr. Stanford Lai (Lai). Khalil raised issues concerning Lai to the medical director Dr. Robert Withrow (Withrow) and the chief physician and surgeon Dr. Jonathan Hamrick (Hamrick), but they did not address the issue. Eventually, in January 2018, Khalil filed a request for Lai's immediate removal with Withrow and executive director Brandon Price (Price). Lai was not removed, but the Hospital's administration changed how Khalil was scrutinized by changing his direct supervisor from Withrow to Hamrick.

Sometime in early February 2018, Lai sent an e-mail to Price in which he alleged that Khalil was creating a hostile work environment, engaging in unsafe work practices, and interacting with others in an unprofessional and disrespectful manner. Lai's claims were forwarded for investigation to DSH's Office of Special Investigations (OSI) in Sacramento. OSI investigators are to arrive at their own conclusions, and the outcome of investigations is not controlled by any Hospital employee.

On February 9, 2018, Khalil informed Hamrick and Withrow that he believed they were subjecting him to bullying and harassment. The same day, OSI responded to an e-mail from Withrow about opening an investigation into Lai's e-mail complaint against Khalil.

On February 13, 2018, Khalil complained to the acting executive director of the Hospital about perceived harassment and discrimination by Withrow and Hamrick. The acting director sent a detailed e-mail to Price and statewide DSH officials. Also, on February 13, 2018, OSI opened an investigation into Lai's complaints against Khalil.

On February 14, 2018, the Hospital's Equal Employment Opportunity (EEO) officer reached out to Khalil about his complaints of discrimination and harassment. Khalil met with the EEO officer and discussed his complaints, including the involvement of Price.

On February 15, 2018, Khalil again met with the EEO officer and shared that he intended to file a complaint of harassment and retaliation against DSH with the California Department of Fair Employment and Housing (DFEH). Khalil shared a 30-page narrative that included claims of harassment and retaliation by Hamrick, Withrow, and Price. The EEO officer reviewed Khalil's narrative and stated that she would inform Price and DSH headquarters about the complaint.

On February 17, 2018, Khalil filed a complaint with DFEH against DSH. The DFEH complaint alleged harassment, discrimination, and retaliation against Khalil by Hamrick, Withrow, and Price ranging from February 22, 2017, to February 13, 2018. The DFEH complaint included examples of complaints made by Khalil to Price without action being taken by Price.

On February 20, 2018, DSH advised Khalil in writing that he was the subject of an administrative investigation.

On April 12, 2018, Khalil reported to Price and two statewide DSH officials that he believed Withrow was retaliating and discriminating against him. Despite DSH EEO policy, Price did not report Khalil's complaints to the Hospital EEO office.

In January and February 2019, Khalil met and spoke with the Hospital EEO officer. Khalil discussed the possible sexual harassment of a female contract dentist, Dr. Morris, by Lai. Khalil forwarded copies of Morris's complaint against Lai to the Hospital EEO officer, Withrow, and Price. After receiving Morris's complaint, Withrow claimed Morris had indicated to him that Khalil had pressured her to complain against Lai. Price had the Hospital's internal investigators speak with Morris about Khalil pressuring her. Price later referred the matter to the Office of Protective Services (OPS) in Sacramento.

On June 7, 2019, Khalil's counsel sent a letter to Price, Withrow, and two statewide DSH officials that explained Khalil was the subject of ongoing retaliation because he engaged in a number of protected activities, including relaying Morris's harassment claims to the Hospital administration. The letter also indicated that Khalil had filed a complaint with the DFEH and obtained a right to sue letter.

Sometime prior to August 1, 2019, OSI issued a 59-page report regarding Lai's allegations against Khalil. The report concluded Khalil had violated two administrative directives, one regarding workplace safety and the other regarding respectful work environments and discourteous treatment. Price was aware that the OSI report also noted Lai had told investigators that Khalil "was an Egyptian and [Khalil's] culture was very different than there. Dr. Lai stated the Egyptians used to be slaves, but now [Khalil] was a dentist, so [Khalil] was in the upper class of people there. Dr. Lai stated Dr. Khalil was nothing special here in America, just another worker, especially when you work for the State." Although Price believed that Lai's statements were improper and that some follow up training for Lai was appropriate, Price took no actions to address Lai's statements.

On August 1, 2019, Price issued an adverse action against Khalil by reducing his pay by 10 percent for six months. Price declared that he was the sole decisionmaker for the pay reduction and that he did so because OSI had issued a negative report regarding Lai's complaints. At the time the pay reduction was imposed, Khalil had made internal complaints at the Hospital, external complaints to DSH leadership in Sacramento, and a complaint with DFEH that Price had been violating his civil rights. Further, prior to the pay reduction, Khalil had uniformly received performance reviews of "meets expectations" or "exceeds expectations." Despite these reviews, it does not appear that Price considered a lower form of progressive discipline. The pay reduction paved the way for additional future progressive discipline, which appears to have been termination.

DISCUSSION

I. Parties' Arguments

Khalil argues in part that there is direct evidence of retaliatory animus. In opposition to summary judgment and in response to a hearsay objection, Khalil argues that he submitted declarations that described a conversation he had with Hamrick. In those declarations, Khalil explained that Hamrick had told him about conversations with Price and Withrow in which Price and Withrow said that they wanted Khalil out of the Hospital and were going to retaliate against him for filing complaints of discrimination and mistreatment. Relying heavily on Colarossi v. Coty U.S. Inc. (2002) 97 Cal.App.4th 1142 (Colarossi), Khalil argues that the trial court incorrectly concluded that these statements were hearsay because the statements of Hamrick and Price are admissible among other ways as admissions of a party opponent. Khalil argues that the court should have considered this direct evidence and denied...