Discrimination and Defamation Claim Stemming from Firing Based on Allegedly Racist Conduct Can Go Forward

Birch v. John Muir Health, decided Tuesday by California Court of Appeal Justice Carin Fujisaki, joined by Alison Tucher & Ioana Petrou, stems from JMH’s firing Birch “based on Birch’s purported violations of JMH’s polices against harassment and discrimination.” The trial court granted summary judgment for JFH on Birch’s claims for, among other things, discrimination and defamation, but the appellate court reversed. An excerpt from the long opinion:

In March 2003, Birch, a Filipina woman, began working for JMH as a registered nurse. Two years later, after earning a certificate in wound and ostomy care, she worked full-time on JMH’s Skin Wound Assessment Team (“SWAT”)…. From 2017 to 2019, Birch consistently received favorable performance reviews, with managers acknowledging her as a “subject matter expert” who exhibited passion, dedication, teamwork, and strong leadership skills….

In June 2019, Rachel Daniels (“Daniels”), a Black woman, began working as a per diem nurse on JMH’s SWAT team. Daniels and Birch occasionally worked shifts together at the Concord Medical Center and initially enjoyed an amicable working relationship. [But the relationship soured in early 2020; for more details on the factual backstory, see the opinion. -EV]

The Court of Appeal held that Birch’s discrimination claim can go forward:

Birch asserts there was a triable issue of fact as to whether JMH’s termination of her employment was based on JMH treating Daniels more favorably because Daniels was Black. More particularly, Birch contends that even though she and Daniels were similarly situated, experienced mutual difficulties working together, and were both arguably in violation of JMH’s core values and HR policies, Birch was the only one who was disciplined and terminated. Viewing the evidence in the light most favorable to Birch as the party opposing summary judgment, we agree there is sufficient evidence to raise a triable issue of fact as to JMH’s alleged discriminatory treatment….

With respect to their jobs, Birch submitted evidence that she and Daniels were both wound and ostomy care nurses who worked on the SWAT team, and that she and Daniels both engaged in conduct that arguably violated aspects of JMH’s core values and HR policies that required teamwork, professionalism, respectful communication, and the willingness to work together professionally regardless of past difficulties. For example, there was evidence that both nurses experienced persistent difficulties working and communicating with each other, which led both to seek supervisorial assistance on numerous occasions after various conflicts and misunderstandings.

There was also evidence the superiors believed both women were contributing to their interpersonal issues, with Parent [a supervisor] stating in a June 2020 report that “[s]everal months of communication difficulty have resulted in a strained relationship and mutual apprehension regarding ongoing collaboration” and that discussions occurred about “specific examples where the intentions of one or both of [the nurses] has been misinterpreted by the other.” And as previously recounted, after the October 29, 2020 patient assignment dispute, Juster noted both nurses disagreed about everything, with Parent stating, “Ugh. They both need to stop.” Juster later emailed both nurses: “It is the expectation that you both continue to work together living [sic] the JMH brand promise to listen, explain and work as a team.” …

Birch [also] presented evidence that Daniels engaged in other conduct that arguably violated JMH’s core values of honesty and integrity. More particularly, in June 2020, Birch complained to her superiors that in their group meetings, Daniels had leveled a number of false accusations against Birch, ranging from the claim that Birch never apologized for the shoe incident to claims that Birch’s patient assignments to Daniels differed from Birch’s patient assignments to other SWAT nurses (which Birch asserted could be disproved if JMH reviewed the patient assignment lists Birch made for other SWAT nurses).

Further, Birch was not the only employee to have complained of Daniels’s false accusations of racism. Specifically, there was evidence that another nurse, Teodoro, had informed Parent, Gage [an HR official], and Juster [another supervisor] that Daniels had falsely accused her of stating “That’s why these patients are like this, because they are African-Americans, like they’re black,” when Teodoro insisted she had never made this statement. Like Birch, Teodoro also complained that Daniels sent an email with accusations containing false and inaccurate information. That incident, however, appeared to result only in a meeting focused on Daniels educating that nurse (Teodoro) about microaggressions.

Notwithstanding all this evidence and the evidence that Birch and Daniels accused the other of conduct that arguably violated JMH’s core values and HR policies, JMH did not treat or respond to the two nurses in the same way. Notably, there appears no evidence that Daniels received any type of discipline even though Parent and Juster indicated they viewed her as half of the problem. And as Birch points out, an inference of JMH’s preferential treatment of Daniels may be gleaned from the evidence that Parent, Juster, and Gage told Birch they had to be very careful in how they addressed Daniels’s allegations and complaints in light of the protests that had occurred after the death of George Floyd in 2020. This inference seems bolstered by record evidence that, after Daniels accused Birch of discrimination but before Gage had even completed her investigation into these allegations, Juster not only expressed to Gage her preference to terminate Birch, but also emailed Daniels to tell her she was a “blessed addition” to the SWAT team.

In contrast, without investigating the factual underpinnings of Daniels’s accusations against Birch or Birch’s responses to those accusations, JMH issued Birch a verbal counseling record when Birch continued to struggle with anxiety over working with Daniels. JMH also moved swiftly to terminate Birch after the nurses’ second conflict over patient assignments on October 29, 2020 and Daniels’s subsequent accusations of racial harassment and discrimination, based solely on its review of the October 29 incident and seven under-investigated allegations from Daniels’s October 30 email.

Viewing all of this evidence together in the light most favorable to Birch, we conclude a reasonable factfinder could find that Birch and Daniels were similarly situated and yet were treated differently….

Under the McDonnell Douglas framework, even if an employee establishes a prima facie case for discrimination, an employer may rebut the presumption of discrimination by offering a legitimate, nondiscriminatory reason for the adverse employment action, and the burden then shifts back to the employee to present a triable issue of fact as to whether the employer’s stated reason was pretext….

As Birch correctly points out, pretext can be established by demonstrating that an employer treated similarly situated employees differently or that it engaged in an inadequate investigation…. Here, Birch presented substantial evidence that JMH terminated her after conducting a minimal, one-sided investigation into Daniels’s complaints of racial discrimination…. [Details omitted, but here’s an example: -EV] Gage additionally predicated her finding of discrimination by Birch on seven “incidents” listed in Daniels’s October 30, 2020 email, including Daniels’s allegations that Birch would call her at the beginning of shifts, review her patient charts, and that Birch told her that her hair was “so much better” and “appropriate” when it was styled in a more straight fashion. Though Gage cited these items in her report, there is no indication she sought to substantiate these allegations.

A reasonable jury could conclude that this investigative omission, in the context of the serious and ongoing “she said/she said” employee allegations at issue, is significant. For instance, the record indicates Birch denied making the hair comment and stated Daniels had wrongly attributed this statement to her. Moreover, Birch had previously indicated it was her practice to call SWAT team members at the beginning of their shifts to see if they had questions about patient assignments, and that she did not limit this practice to Daniels. Gage, however, did not speak to SWAT team members on these points and made no effort to independently verify Daniels’s claims….

And the court allowed Birch’s defamation claim to go forward as well:

Birch pled that JMH was liable for defamation based on Daniels’s accusations in her October 30, 2020 email that Birch made comments about Daniels’s hair, that Birch did not see Black Americans as “any more than “housekeepers and CNAs” [“CNAs” presumably means certified Nursing Assistants -EV] and that she checked Daniels’s charts without being asked to do so. Birch also cited Daniels’s expressions of concerns regarding the quality of care Birch was giving Black patients, and Daniels’s request that action be taken to provide all patients with equitable care and to create a safe environment for staff.

In moving for summary judgment on this claim, JMH argued Daniels’s statements regarding the comments Birch supposedly made about Black patients were statements of opinion and not statements of fact. JMH additionally contended that Daniels’s statements were made without malice and were therefore privileged under Civil Code section 47, subdivision (c) [apparently referring to the “joint interest privilege” -EV]…. Courts … have recognized the possibility of an employer’s respondeat superior liability for a defamatory statement made by one of its employees to another employee….

JMH is correct that “mere opinions are generally not actionable.” However, “a statement of opinion that implies a false assertion of fact is actionable.” … Here, Daniels’s statements regarding Birch’s treatment of Black patients arose in the context of an email that referenced Birch’s alleged comments about Daniels’s hair, Birch’s purported view that Black Americans are no more than “housekeepers and CNAs,” and Daniels’s assertion that Birch continued to refuse to “accept and acknowledge her bias.” An average reader could conclude that these statements were not mere expressions of opinion, but an assertion that Birch was, in fact, racist and treating Black patients poorly because of her bias. Consequently, such statements could form the basis of a defamation claim.

As for JMH’s contention that Daniels’s statements were not made with malice, … the evidence shows a history of ongoing conflict after Birch moved Daniels’s shoes from a closet in March 2020 and their longstanding difficulties in working with one another. Viewing the evidence in the light most favorable to Birch, one inference that may be reasonably drawn is that Daniels bore anger and hostility against Birch. Moreover, Daniels cited no instances in which she observed Birch treating Black patients inequitably, and her accusation of inequitable patient treatment appeared to be based on her belief that Birch found it difficult to work with her because she is Black. Because it appears uncertain whether Daniels leveled her accusations out of hostility or with reasonable grounds, we may comfortably conclude that a triable issue of fact exists as to whether Daniels made the statements in her October 30 email with malice….