Simon v. Health Net
Filed 10/18/13 Simon v.
Health Net CA2/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
MARINE SIMON,
Plaintiff and Appellant,
v.
HEALTH NET OF CALIFORNIA,
INC., et al.,
Defendants and Respondents.
B240167
(Los Angeles
County
Super. Ct.
No. BC455432)
APPEAL from a judgment of the Superior
Court of
County, Rita Miller, Judge. Affirmed.
Shegerian & Associates and
Carney R. Shegerian for Plaintiff and Appellant.
Ballard Rosenberg Golper &
Savitt, Linda Miller Savitt, Jonathan Rosenberg and Christine T. Hoeffner for
Defendants and Respondents.
_________________________
Plaintiff and appellant
Marine Simon (Simon) appeals a judgment following a grant of
and respondents Health Net of California, Inc. (Health Net of California) and
Health Net, Inc. (Health Net).
The essential issue presented is
whether Simon complied with the California Fair Employment & Housing Act’s
(FEHA) exhaustion requirement before filing suit. (Gov. Code, § 12900 et seq., § 12960.)
With respect to Health Net, we conclude the instant action is barred
because Simon failed to file an administrative complaint with the Department of Fair
Employment & Housing (DFEH) prior to filing suit. Simon’s DFEH complaint, which solely named
Health Net of California, cannot be construed to extend to Health Net.
As for Health Net of California, this action is barred because, as the
trial court found, Health Net of California was not Simon’s employer at the
time of the acts alleged in the complaint.
Therefore, the judgment is affirmed.
FACTUAL AND
PROCEDURAL BACKGROUND
facts.
Simon initially worked for Health
Net of California, from March 1, 2004 until May 2005, as a commissions
specialist.
In May 2005, Simon became an employee of Health Net. Simon applied for, and was hired as, a
treasury analyst in Health Net’s treasury department, with a start date of May
2, 2005. Simon remained in the treasury
department during the remainder of her employment at Health Net. Kevin Low was Simon’s supervisor, while
Jonathan Rollins headed the treasury department at Health Net.
Simon became pregnant in March 2009.
On November 3, 2009, Simon submitted a Certification of Health Care
Provider for Medical Leave form, requesting a pregnancy/maternity leave of
absence. Simon requested a leave of
absence from November 16, 2009 to January 27, 2010, and that she anticipated
returning to work on April 22, 2010.
Simon planned to use accrued vacation time for the period between
January 28, 2010 and April 19, 2010.
Simon’s request for a leave of absence from November 16, 2009 to April
19, 2010 was approved.
On February 23, 2010, Simon’s doctor submitted a Physician’s
Supplementary Certificate to Health Net, indicating that Simon had a condition
known as spondylolisthesis, which necessitated a disability related leave of
absence from February 23, 2010 to April 6, 2010. This condition caused Simon to experience
pain in her lower back, right
arm and shoulder. Health Net
approved the request for a medical leave of absence from February 23, 2010 to
April 6, 2010, as requested. Health Net
approved two subsequent requests to extend the medical leave of absence through
May 17, 2010, and then until June 18, 2010.
In May or June of 2010, Simon’s physician requested that her leave of
absence be extended to November 15, 2010.
On June 14, 2010, Simon received a letter informing her that her time
allowed under Health Net’s medical leave policy would expire on June 18,
2010. Following Simon’s receipt of said
letter, she spoke by telephone to Christine Artinian, Senior Absence Management
Consultant of Absence and Disability Management. Artinian offered Simon the alternate
accommodation of working a reduced schedule or working from her home, and
informed Simon that she would be sending her an accommodation packet.
On June 29, 2010,
Simon received a letter from Artinian notifying her that her employment would
be terminated effective July 7, 2010, because Simon would not accept either of
the accommodations offered by Health Net, and because Simon was unable to
return to work and perform the essential functions of her job for at least
another five months.
2. Simon’s DFEH complaints.
On February 1, 2011, Simon filed three complaints of discrimination with
the DFEH against Health Net of California, Rollins and Low, alleging she had
been discriminated against and harassed based upon her medical condition and
pregnancy, that she had been retaliated against, and that her request for an
accommodation had been denied.
On February 1, 2011, the DFEH issued Simon notices of case closure,
indicating her three complaints were being closed “because an immediate
Right-To-Sue Notice was requested.â€
3. Superior court proceedings.
a.
On February 17, 2011, Simon commenced this action against Health Net of
California, alleging various causes of action pursuant to the FEHA (§ 12900 et
seq.) and the California Family Rights Act (CFRA) (§ 12945.2), which is a part
of the FEHA. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864,
868.)
A first amended complaint followed on March 11, 2011.
On April 11, 2011, Health Net of California served its answer to the
first amended complaint, asserting as affirmative defense No. 14 that “
California, Inc.†(Italics added.)
On October 11, 2011, Simon filed an amendment to the operative first
amended complaint, substituting “Health Net, Inc.†for Doe 1.
b.
On November 23, 2011, Health Net and Health Net of California filed a
motion for summary judgment or alternatively, summary adjudication.
Health Net of
California asserted, inter alia, it was entitled to summary adjudication as to
each of Simon’s causes of action “because Health Net of California, Inc. was
not Simon’s employer at any time relevant to this action.†It presented evidence that Simon had not
worked for Health Net of California since May 2005.
Health Net, in turn, contended it was entitled to summary adjudication on
the ground, inter alia, that “Simon failed to exhaust her
Net, Inc. by filing a Complaint of Discrimination against it with the
DFEH.†Health Net presented evidence
that Simon’s DFEH complaints had only named her previous employer, Health Net
of California, as well as Rollins and Low, and had failed to mention Health Net
in her DFEH complaints.
c. Simon
files an “amended†charge with the DFEH, purporting to amend the closed
administrative complaint to name Health Net as her employer.
On December 15, 2011, Simon filed an “amended†complaint of
discrimination with the DFEH, purporting to amend the closed complaint against
Health Net of California to name “Health Net, Inc.†as her employer.
On January 18, 2012, the DFEH issued a “Notice of Filing of Amended
Closed Discrimination Complaint,†indicating that Simon had filed an
amended charge of discrimination in a matter that had already been closed. The notice from the DFEH to Simon’s counsel
advised: “You previously received a copy
of your client’s Notice of Case Closure, which constitutes your client’s
right-to-sue notice.â€
d.
In resisting summary judgment, Simon
contended the evidence was disputed as to whether Health Net of California was
also her employer. Simon cited Low’s
testimony that while working in Health Net’s treasury department, Simon handled
work for both Health Net and Health Net of California.
Simon also
asserted she fully exhausted her administrative remedies as against Health Net,
in that she “filed her initial DFEH charges, naming Health Net of California,
Inc., then filed her suit within the statutorily allotted time. She subsequently amended her DFEH charges to
name Health Net, Inc. and amended her civil complaint. Health Net, Inc., which shares corporate
offices with Health Net of California, Inc., and is a subsidiary of Health Net,
Inc., was aware of the DFEH charges when they were
filed, . . . . Simon
properly exhausted her claims against Health Net, Inc.†(Italics omitted.)
4. Trial court’s ruling.
February 8, 2012, the matter came on for hearing. The trial court granted summary judgment in
favor of both Health Net of California and Health Net, ruling in pertinent
part: “there is no triable issue of fact
that defendant Health Net of California, Inc. was not plaintiff’s employer at
the time of the acts alleged in the complaint, . . . [and]
plaintiff was aware of Health Net, Inc. and aware that Health Net, Inc. was her
employer at the time the original DFEH complaints and this action were filed,
precluding plaintiff from filing a new or amended DFEH complaint or action
following expiration of the one-year statute of limitations[.] . . . Because
this resolves the issue of liability of Health Net of California, Inc., [and]
Health Net, Inc. . . . the Court grants summary judgment. The Court does not address the remaining
issues as they are moot.â€
CONTENTIONS
contends the grant of summary judgment was error because she satisfied the FEHA
exhaustion requirement and defendants did not negate liability on Simon’s
claims for discrimination, harassment, failure to accommodate and retaliation
in violation of the FEHA and the CFRA.
DISCUSSION
1. Standard
of appellate review.
“We independently review an order granting summary
judgment. [Citation.] We determine whether the court’s ruling was
correct, not its reasons or rationale.
[Citation.] ‘In practical effect,
we assume the role of a trial court and apply the same rules and standards
which govern a trial court’s determination of a motion for summary
judgment.’ [Citation.] We review for abuse of discretion any
evidentiary ruling made in connection with the motion. [Citation.]â€
(Shugart v. Regents of University
of California (2011) 199 Cal.App.4th 499, 504-505.)
2. The
state of the record with respect to Simon’s knowledge that her employer was
Health Net, Inc.
Before
addressing Simon’s contentions on appeal, we summarize the undisputed evidence
as to the identity of Simon’s employer.
The W-2 wage and
tax statements for the years 2005 through 2010 listed Simon’s employer as
“Health Net, Inc.†Likewise, her
paycheck stub indicated “Health Net, Inc.†was her employer.
On December 21,
2009, Simon filed a claim with the State of California Employment Development
Department for disability insurance benefits, signed under penalty of
perjury. In said claim, Simon listed her
employer as “Health Net, Inc.â€
The June 29,
2010 letter from Artinian to Simon, terminating Simon’s employment effective
July 7, 2010, was signed by Artinian as “Sr. Absence Management Consultant†at
“Health Net, Inc.â€
Following
Simon’s termination, she wrote a resume indicating she had been employed
by “Health Net, Inc.â€
Thus, the
evidence established Simon was aware her employer was Health Net.
Moreover, early on the
litigation, after Simon had named Health Net of California as her employer,
Health Net of California advised Simon that it was not her employer. As
indicated, Health Net of California, in its answer to the first amended
complaint, asserted “Plaintiff was
not employed by Health Net of California, Inc.†(Italics added.)
We now turn to the issues raised on appeal.
2.
Trial court properly granted summary judgment in favor of Health Net of
California because Health Net of California was not Simon’s employer at the
relevant time.
a. At the
time of the conduct alleged in the complaint, Health Net of California was not
Simon’s employer.
The operative first amended
complaint alleged that after Simon became pregnant in 2009, she suffered
However, as set forth above, at the relevant time in 2009 and 2010,
Health Net of California was not Simon’s employer. The undisputed evidence established that
commencing in May 2005, Simon was employed by Health Net, not Health Net of
California.
Because Health Net of California was not Simon’s employer at the time of
the acts alleged in the complaint, the trial court properly granted summary
judgment in its favor.
b.
In resisting summary judgment, Simon
contended that during her employment at Health Net, she continued to be
employed by Health Net of California.
Simon relied on evidence that while working in Health Net’s treasury
department, she also did work for Health Net of California.
Simon
relies on Kowalski v. Shell Oil Co.
(1979) 23 Cal.3d 168, which states: “The
possibility of dual employment is well recognized in the case law. ‘Where an employer sends an employee to do
work for another person, and both have
the right to exercise certain powers of control over the employee, that
employee may be held to have two employers ‒ his original or “generalâ€
employer and a second, the “special†employer.’ †(Id.
at p. 174, italics added.)
name="_ftnref5" title="">[5]
As the trial court found, assuming
arguendo the dual employment doctrine applies in the FEHA context, Simon’s
reliance thereon was misplaced. To
reiterate the trial court’s ruling:
“Plaintiff did not provide any evidence that Health Net of California,
Inc. had the right to control plaintiff’s activities. Plaintiff simply provided evidence that she
worked on projects for Health Net of California, Inc. while she was working for
Health Net, Inc. in its treasury department.â€
Thus, Simon did not support her legal
argument with an evidentiary showing that Health Net of California had a
right to exercise control over her while she was employed by Health Net. Merely because Health Net’s treasury
department employees provided services to a subsidiary, Health Net of
California, did not make Health Net employees also employees of the subsidiary
for whom they provided services.
In sum, Simon failed to raise a triable issue as to whether she had dual
employers.
c.
and Health Net of California constituted a single employer.
As an alternative to her dual employer argument, Simon asserts Health Net
and Health Net of California constituted a single
employer, consisting of the parent company and the subsidiary. Simon failed to make this argument below and
also failed to present the necessary evidence to raise a triable issue in this
regard.
The pertinent principles are set forth in Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727 (
employer for purposes of liability under title VII of the federal 1964 Civil
Rights Act (42 U.S.C. § 2000e et seq.).
[Citation.] Because [FEHA] has
the same nature and purpose as the federal law, California courts frequently
look to federal case law for guidance in interpreting the FEHA. [Citation.]
“An employee who seeks to hold a parent corporation liable for the acts
or omissions of its subsidiary on the
theory that the two corporate entities constitute a single employer has a heavy
burden to meet under both California and federal law. Corporate entities are presumed to have
separate existences, and the corporate form will be disregarded only when the
ends of justice require this result.
[Citations.] In particular, there
is a strong presumption that a parent company is not the employer of its
subsidiary’s employees. [Citation.]
“The federal courts have developed a test, derived from federal labor
case law, to determine whether two corporations should be considered a single
employer for title VII purposes.
Commonly called the ‘integrated enterprise’ test, it has four
factors: interrelation of operations,
common management, centralized control of labor relations, and common ownership
or financial control. [Fn. omitted.] [Citations.] . . . . [¶]
Under this test, common ownership
or control alone is never enough to establish parent liability. [Citation.]
Although courts consider the four
factors together, they often deem centralized control of labor relations the
most important. [Citations.] ‘The critical question is, “[w]hat entity
made the final decisions regarding employment matters related to the person
claiming discrimination?†[Citation.] A
parent’s broad general policy statements regarding employment matters are not
enough to satisfy this prong.
[Citation.] To satisfy the
control prong, a parent must control the day-to-day employment decisions of the
subsidiary. [Citations.]’ [Citation.]
“To make a sufficient showing of ‘interrelation of operations’ on summary
judgment, the plaintiff must do more than merely show that officers of the
subsidiary report to the parent corporation or that the parent benefits from
the subsidiary’s work. Since these facts
exist in every parent-subsidiary situation, such a showing would create a
triable issue of material fact in every case.
What the plaintiff must show, rather, is that the parent has exercised
control ‘to a degree that exceeds the control normally exercised by a parent
corporation.’ [Citation.]†(Laird,
supra, 68 Cal.App.4th at pp. 737-738, italics added.)
In sum, Simon’s “single employer†argument requires an evidentiary
showing with respect to numerous factors, including centralized control of
labor relations, which Simon failed to make below. Simon’s attempt to expand the scope of the
issues at this juncture in order to raise a triable issue on appeal must be
rejected.
d. Conclusion
with respect to Health Net of California.
The trial court properly granted summary judgment in favor of Health Net
of California because Health Net of California was not Simon’s employer at the
time of the acts alleged in the complaint, i.e., 2009 and 2010.
3.
Trial court properly granted
summary judgment in favor of Health Net, Simon’s employer, due to Simon’s
failure to comply with FEHA’s exhaustion requirement as against Health Net.
a. FEHA’s
exhaustion requirement.
In Rojo v. Kliger (1990) 52
Cal.3d 65, the Supreme Court explained the exhaustion requirement and its
rationale as follows: “[E]xhaustion of
the FEHA administrative remedy is a precondition to bringing a civil suit
resolution, the exhaustion requirement serves the important policy interests
embodied in the act of resolving disputes and eliminating unlawful employment
practices by conciliation [citation], as well as the salutory goals of easing
the burden on the court system, maximizing the use of administrative agency
expertise and capability to order and monitor corrective measures, and
providing a more economical and less formal means of resolving the dispute
[citation]. By contrast, in those cases
appropriate for judicial resolution, as where the facts support a claim for
compensatory or punitive damages, the exhaustion requirement may nevertheless
lead to settlement and serve to eliminate the unlawful practice or mitigate
damages and, in any event, is not an impediment to civil suit, in that the
Department’s practice evidently is to issue a right-to-sue letter (§ 12965) at
the employee’s request as a matter of course [citations].†(Id.
at pp. 83-84.)
Thus, to bring a civil action under FEHA, a person must first file a
claim with the DFEH within one year of the date upon which the alleged act of
discrimination occurred. (§ 12960, subd. (d); Keiffer v. Bechtel Corp. (1998) 65 Cal.App.4th 893, 895-896.)
b. Simon’s
failure of exhaustion with respect to Health Net.
Health Net terminated Simon, effective July 7, 2010. Simon did not file a DFEH complaint against
Health Net within the one-year period.
(§ 12960, subd. (d).)
It was not until December 15, 2011, that Simon filed an “amended†charge
with the DFEH, purporting to amend the closed administrative complaint (against
Health Net of California) to name “Health Net, Inc.†as her employer. Shortly thereafter, the DFEH issued a “Notice
of Filing of Amended Closed Discrimination Complaint,†indicating that Simon
had filed an amended charge of discrimination in a matter that had already been
closed.
In an attempt to overcome her failure to file a DFEH complaint against
Health Net within one year of her
termination, Simon argues in essence that notice to Health Net of California
also constituted notice to Health Net, so as to satisfy the exhaustion
requirement. Simon emphasizes that
Health Net and Health Net of California share the same corporate address, are
represented by the same attorneys, and have the same agent for service of
process.
However, the issue is not whether Health Net had actual notice of Simon’s
DFEH complaint against Health Net of California. As discussed, the FEHA mandates that the
administrative remedy be exhausted, as a condition precedent to bringing a
civil action against a defendant. While
Simon seeks to characterize Health Net and Health Net of California as a
unitary entity, so that notice to one constituted notice to both, Simon failed
to make a showing below that Health Net and Health Net of California are a
single employer. (Laird, supra, 68 Cal.App.4th at pp. 737-738.)
In sum, with respect to Health Net, Simon failed to exhaust the FEHA’s
administrative remedy in accordance with the statutory scheme. (§ 12960.)
Accordingly, the grant of summary judgment in favor of Health Net was
proper.
DISPOSITION
The judgment is affirmed. The
parties shall bear their respective costs on appeal.
KLEIN,
P. J.
We concur:
CROSKEY,
J.
ALDRICH,
J.
name="_ftn1" title="">[1]
All statutory references are to
the Government Code, unless otherwise specified.
name="_ftn2" title="">[2]
Simon’s lawsuit also named Low
and Rollins as defendants. However, on
December 22, 2011, prior to the hearing on the motion for summary judgment,
Simon filed a request to dismiss her action, with prejudice, as against Low and
Rollins. Therefore, no discussion is
necessary with respect to the two individual defendants.
