Phillips v. Victor Community Support Services, Inc.

Filing 46

FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by District Judge Troy L. Nunley on 3/27/2015 ORDERING that judgment is entered in favor of Defendant. The Clerk of the Court is directed to close the case. CASE CLOSED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARY PHILLIPS,

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No. 11-cv-3182-TLN-CMK

Plaintiff,
v.
VICTOR COMMUNITY SUPPORT
SERVICES, INC.,

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

Defendant.
A bench trial was conducted in this matter on May 12, 2014, through May 14, 2014.

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Plaintiff Mary Phillips (“Plaintiff”) alleged under the Americans with Disabilities Act (“ADA”),

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42 U.S.C. § 12100 et seq., that Defendant Victor Community Support Services, Inc.

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(“Defendant”): 1) discriminated against her because of a disability; 2) failed to make reasonable

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accommodations to enable her to perform the essential functions of her job; and 3) retaliated

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against her for engaging in protected activity. For each of the three claims, the Court finds

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Plaintiff has not shown by a preponderance of the evidence that the requisite elements are met.

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Therefore judgment is ordered in favor of Defendant. The Court submits the following Findings

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of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a).
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FINDINGS OF FACT
Trial testimony

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1. The following witnesses testified at trial:

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

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Deborah Engs, “Ms Engs”, Plaintiff’s supervisor from late 2008 through Plaintiff’s
termination. (Reporter’s Transcript, “TR”, 5–160.)

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

Jubin Meriti, Plaintiff’s expert on damages. (TR 165–184.)

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

Dawn Haskins, Plaintiff’s former supervisee and coworker. (TR 186–190.)

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

Denise Craig, Plaintiff’s former supervisee and coworker. (TR 199–227.)

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

Katherine Rayden, the Human Resources Director during the period from late 2008

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through Plaintiff’s termination. (TR 199–227.)

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

Toni Heideman, Plaintiff’s former roommate and coworker. (TR 229–234.)

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

Mary Phillips, Plaintiff. (TR 242–335.)

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Background and material events
2. Defendant provides behavior and mental health services to children and families. (TR

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131:23-132:1.) Defendant employs over 900 employees. (TR 209:14-21.)

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3. Plaintiff began her employment with Defendant beginning in November, 2001, when she

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served as a clinician.1 (TR 242:10-12.)

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4. Plaintiff was promoted to clinical supervisor in January, 2006. (Plaintiff’s Exhibit, “Pl.

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Ex.”, 77.)

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5. Michael Elterman (“Dr. Elterman”) was Plaintiff’s executive director and supervisor from

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the start of her employment until sometime in 2004. (TR 242:13-16.)

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6. Following Dr. Elterman’s departure, Paul Werner (“Dr. Werner”) became Plaintiff’s

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executive director and supervisor, until his departure in August or September, 2008. (TR

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243:14-20.)

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The Court infers that Plaintiff, during her tenure with Defendant, was based at one or more offices in Shasta
County.

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7. Following Dr. Werner’s departure, Ms. Engs became Plaintiff’s executive director and
supervisor at the Shasta County office. (TR 6:25-7:1.)
8. At some point in 2007, Plaintiff had surgery due to complications from a prior case of

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shingles. The surgery involved tying down her diaphragm. Plaintiff had the same type of

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surgery in 2008. For each of the aforementioned surgeries, Plaintiff took approximately

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six weeks off from work. (TR 252:16-253:24.) Following her second surgery in 2008,

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Plaintiff returned to work in October, 2008. Her supervisor when she returned was Ms.

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Engs. This was the first time Plaintiff had worked for Ms. Engs. (TR 253:24-254:4.)

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9. Plaintiff’s health issues resulted in chronic lung issues which were a disability within the

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meaning of the ADA. (ECF No. 22 at 2; Pl. Ex. 61; TR 254:7-18.)
10. On January 7, 2009, Ms. Engs met with Plaintiff to discuss deficiencies in her work

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performance. (TR 260:1-17) Subsequently, Ms. Engs received a letter from an attorney

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representing Plaintiff. (TR 40:20-42:3.)

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11. Plaintiff met with Ms. Engs and Trinda Dailey, the human resources manager at the time,

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on January 12, 2009. (TR 261:19-24.) At that meeting, Plaintiff was given a severance

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and release agreement, which had an effective date of January 14, 2009. (TR 262:1-3.)

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Plaintiff did not sign the agreement. (TR 56:19-20.)

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12. Plaintiff’s attorney subsequently sent Defendant another letter, dated January 12, 2009,

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stating in relevant part: “Unfortunately my client informs me that instead of responding

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directly to me, Victor TC has further harassed Ms. Phillips with a termination/waiver of

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rights ultimatum with a short unlawful two day response decision time. Needless to say

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such conduct subjects the employer to litigation risks …. It is clear your attorney should

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review this matter and contact [me] regarding this situation forthwith.” (Pl. Ex. 100-7.)

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13. On January 26, 2009, Plaintiff met with Ms. Engs and Trinda Dailey, at which point she

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was demoted from clinical supervisor to clinician. (Pl. Ex. 79.) The demotion letter

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stated in relevant part: “I have serious concerns regarding your performance, especially in

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the areas of developing and maintaining trust with your supervisees, professional

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communications with other staff and peers, working as a positive member of your team

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and other leadership skills.” (Pl. Ex. 37.)

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14. On August 19, 2009, Ms. Engs issued Plaintiff a written warning indicating that Plaintiff

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left her scheduled clients to be seen by someone else without making arrangements for

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coverage, and that Plaintiff did not contact her supervisor regarding the absence, in

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violation of protocol. (Defendant’s Exhibit, “Def. Ex.”, L.)

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15. On September 3, 2009, Plaintiff made a formal written request for accommodation to

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work four days per week instead of five and modifications to her case load. That request

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was granted in writing, and signed by Ms. Engs, Trinda Dailey, and Plaintiff.2 (Pl. Ex.

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36.)

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16. On September 15, 2009, Ms. Engs issued Plaintiff a second written warning, stating

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Plaintiff had failed to notify a client of the need to cancel an appointment and had failed to

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notify her supervisor or office staff. (Def. Ex. M.)

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17. On September 15, 2009, Ms. Engs also issued Plaintiff’s annual performance review,

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with ten areas checked to indicate “unacceptable or needs improvement.” (Pl. Ex. 35.)

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18. On November 3, 2009, Plaintiff was terminated. The reasons cited in the termination

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letter were: a continued pattern of poor judgment, poor customer service, and a lack of

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professional communication; the incidents giving rise to the two written warnings on

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August 19, 2009, and September 15, 2009; an incident discussed at an October 30, 2009,

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meeting with Ms. Engs, involving whether Plaintiff documented attempts to contact a

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client’s guardian on a client database; and Plaintiff’s informing Ms. Engs her license had

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expired just prior to her termination. (Pl. Ex. 34.) Ms. Engs also testified that the “full

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scope” of Plaintiff’s employment was factored into the decision to terminate. (TR 106:7-

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9.)

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19. Ms. Engs testified that at no point did Plaintiff’s health issues factor into her analysis of

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Plaintiff’s performance. (TR 9:25-10:3.) She testified that Plaintiff’s volume of leave,

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The request was initially dated September 1, 2009, but the request was granted and signed by Plaintiff, Ms. Engs,
and Trinda Dailey on September 3, 2009.

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and the reasons for her leave, were not considered in the decision to terminate. (TR

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127:9-17.)

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Plaintiff’s disability
20. The Court does not locate within the trial testimony or the submitted briefing wherein

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Plaintiff states a specific time period when her chronic lung issues became a disability, or

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whether related health issues – for example the surgeries involving Plaintiff’s diaphragm

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in 2007 and 2008 – were or were not part of Plaintiff’s disability. The main health issue

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testified to at trial was Plaintiff’s recurring bouts of pneumonia, which the parties agree

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constitutes a disability.3

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21. Plaintiff’s Proposed Findings of Fact and Conclusions of Law (ECF No. 45 ¶ 34) asserts

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that Plaintiff took leaves of absence (“LOAs”) from work in April, May, July, August, and

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September 2009, due to recurring bouts of pneumonia. Plaintiff directs the Court to

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exhibits 30, 38, 60, 61, 62, and 63, which appear to show that LOAs were taken during

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these months. (ECF No. 45 ¶34.) Defendant does not dispute the facts contained in the

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aforementioned exhibits.

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22. Plaintiff also testified – apparently consistently with her proposed FF&CL – that she

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experienced recurring bouts of pneumonia a minimum of ten times in 2009, and that she

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“might have missed a period of two weeks at a time and a week at another time.” (TR

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254:7-18.)

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23. Plaintiff does not claim that she was discriminated against due to her chronic lung issues

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(nor that she suffered any adverse employment actions) prior to her returning to work in

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October, 2008.

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A “disability” under the ADA refers to “(A) physical or mental impairment that substantially limits one or more
major life activities []; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as
described in paragraph (3)).” A “major life activity” includes, but is not limited to, “caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, and working.” A major life activity “also includes the operation of
a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive,
bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” 42 U.S.C.
12102(1) and (2).

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24. In light of the foregoing, the Court finds Plaintiff was disabled due to her chronic lung

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issues, starting at least in October, 2008, when she returned to work following her

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diaphragm surgery.4

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Annual Performance Reviews: 2004 - 2009
25. Plaintiff’s annual performance reviews from 2004 through 2009 contained shaded areas

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that indicated “unsatisfactory or needs improvement” and lighter areas that indicated

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satisfactory or praiseworthy performance. They were signed by Plaintiff and her

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supervisors at the time, either Dr. Elterman, Dr. Werner, or Ms. Engs. (Pl. Ex.’s 3, 4, 7, 8,

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9, 35.)

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26. Plaintiff’s annual performance review dated January 12, 2004 (Pl. Ex. 4) was signed by

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Dr. Elterman and did not contain any check-marked areas indicating Plaintiff’s

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performance was unacceptable or needed improvement. The concluding comment stated:

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You have missed considerable amount of time from work which
has, I am sure, inconvenienced you a great deal. It has also
impacted the time you have been able to spend with your clients. It
is my hope that this year will be a healthier year for you. You have
missed 10 days due to ill health in this current fiscal year alone. On
one occasion, you could have added good information to the teams
[sic] knowledge base but felt that on one occasion you had
information you only wanted to share if you could get paid for it
above and beyond your salary. I believe as clinicians it is our
responsibility to pass along information to team members however
we receive it, to better the team. In many other instances you have
shared openly and willingly and in such a manner that indicates to
me that this instance was “out of character.” In general, you have
been generous with your time and equipment, beyond expectations.
Overall, you are an asset to the team and your attitudes about
treatment and families are professional respectful, and has at least
as much impact on the successes that you have had with clients as
your clinical knowledge base. You have worked hard to gain the
knowledge you need for the new client base you are working with.
You have also provided an invaluable service to this agency by
being what I call a “utility infielder.” Where ever we have needed
you, you were willing to perform and learn. This is an example of

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See Plaintiff’s complaint, ECF No. 1 ¶ 9 (Plaintiff “suffers from chronic lung issues, and upon returning to work
from a lung-related surgery [] in October 2008 …”); ECF No. 1 ¶ 11 (After being demoted in January, 2009, Plaintiff
“was required to miss significant additional amounts of work due to her disability including a hospitalization for a
week in April 2009 due to contracting pneumonia. After her discharge, she was required to miss at least ten
additional days of work due to recurring bouts of pneumonia over the next six months.”). See Plaintiff’s trial brief,
ECF No. 26 at 1 (Plaintiff’s disability was “caused by chronic lung issues”); ECF No. 26 at 2 (Plaintiff returned to
work in October, 2008 “following a diaphragm surgery which was related to plaintiff’s … chronic lung issues.”)

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your unique contribution to this agency. You also have a fun
loving attitude and generally spread that around. While this is ‘just’
who you are, it does not take away the positive influence it has on
the program. Thank you.

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27. Plaintiff’s annual performance review dated March 22, 2005 (Pl. Ex. 3) was signed by Dr.

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Werner and contained one check-marked area which indicated Plaintiff’s performance

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was unacceptable or needed improvement. That area involved attendance and noted that

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Plaintiff “[h]ad been absent, late, or left early a few times in the past year (due to illness).”

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The concluding comment stated:

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Ms. Phillips has demonstrated a great deal of flexibility in
providing clinical coverage in multiple programs ... She has
exhibited a positive attitude when asked to give an extra hand. Has
been supportive of peers and has shared her clinical knowledge and
skills. Ms. Phillips recognizes and is taking pro-active steps in
dealing w/ her health issues, which have affected her attendance
during evaluation period. It has been a pleasure working w/ Ms.
Phillips during this time.

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28. Plaintiff’s annual performance review (subsequent to her being promoted from clinician to

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clinical supervisor) dated July 19, 2006 (Pl. Ex. 7) contained no check-marked areas in

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which the Plaintiff’s performance was unacceptable or needed improvement. The

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concluding comment stated:

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Mary has transitioned to being a clinical supervisor in a very
satisfactory manner. She has achieved a high level of trust with the
clinicians she supervises over a short period of time. Her desire to
learn + grow in the new role is complemented by her active role on
the VCSS Training Committee.

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29. Plaintiff’s annual performance review dated October 16, 2007 (Pl. Ex. 8) contained no

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check-marked areas in which the Plaintiff’s performance was unacceptable or needed

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improvement. The concluding comment stated:

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Mary is a valuable member of the leadership team who brings
intelligence, good perception, knowledge and skill to her role. She
is a diligent worker who makes every effort to be aware of
community partner needs, supervisee needs + program needs. She
will work on goal one especially this year.5

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30. Plaintiff’s annual performance review dated August 1, 2008 (Pl. Ex. 9) was signed by Dr.

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Werner and contained check marks in the following areas indicating performance was

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Goal one appears to state: “Develop more supervisional [sic] presentation.”

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unacceptable or needed improvement: “Frequently requires assistance or direct

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supervision with coordinating the provision of Medi-Cal client documentation to ensure

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appropriate levels of billable service and compliance with state and federal requirements

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for patient records,” and “Supervisor is inconsistent in providing live supervision.”

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Accompanying comments written by Dr. Werner included:

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Mary trains/supports staff to achieve their potential and provide
services according to professional standards. She encourages their
development clinically and as a united VCSS site.
Mary contributes ideas to the development of all VCSS programs
and encourages others to do the same. She has been an active
participant in the Strategic Priorities Program.
Mary has struggled to process accurately the Medical
documentation of her supervisees. Errors have gone undetected and
have been picked up by others. This area is one of needed growth.
Mary works well with a variety of community partners … and in
the schools served by her supervisees.
Mary provides supervision to staff and documents this
appropriately. She is conscientious about completing evaluations.
Mary strives to work well with others, and to facilitate
communication and good relations among all staff at this site.
Mary is respectful of her supervisor, her peers, and those she
supervises. She is open to feedback, and does not hesitate to
suggest ways to improve our programs and solve problems.
Mary has good judgment about both clinical matters and program
issues.
Mary is creative, and suggests systems that will enable us to be
more effective in both pragmatic + clinical ways. At times she is
behind in reviewing closures and following up with documentation
that needs correct [sic].
Mary has done field supervision with all but one very experienced
clinician. She has stated she wishes to increase frequency to
agency minimum standard of quarterly.
Mary is sensitive to differences among people and is personally
accepting of others without judgment. She encourages her
supervisees to become increasingly culturally sensitive.
Mary works very well as a team member with the leadership team
and her school-based clinical team. She has a very strong work
ethic and has much to contribute to the agency based on her
knowledge + clinical experience. Her timely and accurate
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processing of her supervisees medical documentation needs
improvement and must be an ongoing issue in her supervision.”

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31. Plaintiff’s annual performance review dated September 15, 2009 (Pl. Ex. 35) which was

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completed by Ms. Engs, contained check marks in the following areas indicating

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Plaintiff’s performance was unacceptable or needed improvement, with accompanying

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typed comments by Ms. Engs (italicized):

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Assessments and/or plan development completed but turned in late.
See peer chart audit corrections lists between Feb and Sept ’09.
Multiple entries indicate Mary’s failure to submit important
paperwork in a timely fashion.

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Quality or timeliness of documentation is unacceptable. Reference
audit corrections from peer audits. Mary has also had a
consent/registration incomplete from May ’09 and continued to
treat the client. Mary has also had difficulty closing charts in a
timely fashion and has allowed TAR to expire.6

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Difficulty articulating mission, values, strategic priorities, and
inconsistent alignment. Mary is clear on the mission, values and
strategic priorities of our agency. She struggles, however, in
applying these to her every day work as exemplified by numerous
communication and teamwork errors.

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Difficulty completing administrative duties as assigned with
inconsistency in meeting standards. Mary sometimes responds to
administrative requests in a timely manner but other time does not.
Recent examples of this include completing her e-learning late and
turning in her team evaluation late and has not attended the Safety
and Wellness Committee meeting in the last 5 months.7

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Has on occasion failed to meet Agency standards regarding
attendance within the past year. Mary has received two written
warnings due primarily to her failure to call off appropriately and
notify her clients of appointment cancellation.

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Has on occasion failed to meet Agency standards regarding
working harmoniously with others.
Written warnings have
highlighted times Mary has struggled to communicate with others
and this has negatively impacted working with others. Mary has
attempted to repair these relationships.

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Has on occasion failed to meet Agency standards regarding team
collaboration. Mary has received a demotion and two written
warnings pertaining to her lack of team collaboration and

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“TAR” refers to Treatment Authorization Request. The typed in portion by Ms. Engs originally stated “TARs”
(plural), which was crossed out and replaced with the handwritten “TAR” to indicate just one instance of allowing a
TAR to expire. (TR 320:3-18.)
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Plaintiff testified that she was not on the Safety and Wellness Committee in the five months preceding this review.
(TR 330:1-5.)

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communication.

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Has on occasion failed to meet Agency standards regarding
respecting supervisor authority. While Mary outwardly respects the
authority of her supervisor, she sometimes commits to actions and
fails to follow through.

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Sometimes makes decisions that violate established policies.
Makes decisions based on emotion. Mary’s failure to follow
procedures demonstrates a lack of sound decision making skills.

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On several occasions has not completed assigned tasks in a timely
manner. See reference to assessments / documentation /
administrative duties as above.

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In the “Comments” section following these checked areas, Ms. Engs wrote:

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During this evaluation period, Mary was demoted from Clinical
Supervisor to Clinician due to her insufficient professional
communication, lack of team work and below standard quality of
work. Mary has also received 2 additional written warnings after
the demotion for her failure to follow these same expectations.
Mary frequently exhibits an energy and interest in improving the
work she does, but often fails to put this into action. While Mary
has some quality clinical skills, she struggles to bring the other
necessary skills to her role with consistency; her intention is good
but her follow through is often lacking. Where Mary excels is in
her passion for mental health services and her ability to meet and
exceed the Service Percentage expectation consistently.

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In the “Individual Goals” section following the “Comments” section, Ms. Engs wrote:
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“Increase appropriate communication with all professional contacts.”

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“Solve health problems.”

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“Learn more / improve skills re: Trauma-focused CBT and Motivation Interviewing.”

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In the “Measurable Objectives” that correlated, respectively, to each “Individual Goal”

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enumerated above, Ms. Engs wrote:

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“Zero incidents representing a lack of communication in Mary’s work.”

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“Be released by doctor to return to full time regular schedule.”

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“Attend trainings and bring info back to team and use for improved effectiveness.”

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32. The 2009 annual performance review also contained checked areas indicating positive

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performance, including the area of “Completes paperwork and turns it in on time.” That

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area contained Ms. Engs’ handwritten comment: “Mary completes her progress notes on

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time.” (Pl. Ex. 35 at 2.)
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33. Plaintiff met with Ms. Engs to discuss the 2009 annual performance review. (TR 317:17-

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34. Regarding the “Individual Goals” and “Measurable Objectives” sections, Ms. Engs

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testified that it was her practice to ask employees, during the meeting, what goals they

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would like to include; Ms. Engs would write them on the review; and the employee would

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review the document and sign it. (TR 79:5-12.)

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35. Ms. Engs testified that it was Plaintiff’s idea to put “Solve health problems”, and “Be

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released by doctor to return to fulltime regular schedule” on the 2015 annual performance

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review. (TR 77:25-79:4.) Plaintiff testified that these items were already written on the

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review when she went into the meeting on September 15, 2009, and that Plaintiff had not

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told Ms. Engs that those were in fact her (Plaintiff’s) goals. (TR 271:19-272:9.)

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36. To the extent Plaintiff and Ms. Engs offered conflicting testimony regarding whether Ms.

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Engs had already filled in the “Individual Goals” and “Measurable Objectives” sections

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on the September 15, 2009, annual review, prior to the meeting at which they discussed

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the review, and whether Ms. Engs had consulted with Plaintiff prior to writing these goals,

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the Court credits Ms. Engs’ testimony.8

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37. Ultimately, Plaintiff’s five annual performance reviews, from 2004 through 2008,

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described consistently good performance by Plaintiff. Three areas were checked, during

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those five years, indicating unsatisfactory performance. The reviews mention errors in

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completing paperwork accurately and in a timely manner. The reviews also mention

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Plaintiff’s health problems.9

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The Court finds Ms. Engs credible on this point based on the fact that Plaintiff signed the September 15, 2009,
review without noting any objection to the “Individual Goals” and “Measurable Objectives”. Further, Plaintiff
submitted into evidence a “response” to the September 15, 2009, annual review. (Pl. Ex. 23.) The response is a
three-page document, typed, signed, and dated on September 15, 2009, and states “This response is not currently
being shared with my supervisor/Executive Director ....” (Pl. Ex. 23 at 6.) Plaintiff’s response addresses and
disputes the accuracy of many items contained in the annual review, while asserting Plaintiff’s belief she was being
retaliated against due to her prior attempts to fight her termination. As it relates to the Court’s credibility
determination on this point, Plaintiff’s response does not contain any mention of or objection to the handwritten
“Individual Goals” and Measurable Objectives” contained in the annual review. Essentially, Plaintiff had at least two
opportunities to object to the offending language contained in the “Individual Goals” and “Measurable Objectives” at
or near the time they were created but failed to do so.
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The notes about Plaintiff’s health, in the 2004 through 2008 annual reviews, concerned Plaintiff’s absences due to

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Weekly/90 Day/Six Month Evaluations

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38. Plaintiff’s “Weekly/90 Day/Six Month” evaluations, dated April 25, 2006 and July 19,

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2006, had all boxes checked showing that Plaintiff met applicable performance and

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conduct standards.10 (Pl. Ex.’s 5, 6.)

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The 2008 Personnel Review
39. Ms. Engs prepared a “Review of Plaintiff’s Personnel and Supervisory Record” (the

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“2008 Personnel Review”) in November, 2008, with the intent of making a summary

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document of Plaintiff’s employment with Defendant. (TR 20:8-9; Pl. Ex. 78.) That

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review contained notes on Plaintiff’s employment, beginning with her hire in November,

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2001 and concluding with a November 26, 2008, Supervision Note by Ms. Engs. The

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review also documented Plaintiff’s health issues, as follows (Pl. Ex. 78 at 4-5):

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Mary has had significant health issues during her employment as
indicated by previous notation and the following:

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1/17/03 Documentation of an accommodation for “a disability that
affects her right hand” Mary was provided with a signature stamp.
It was also indicated that VCSS offered voice-activated software as
an additional accommodation but that Mary refused, choosing to
use a software she had paid for.

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4/3/03 Mary filed for State Disability with return to work date
4/14/03

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10/7/05 Claim Effective date for State Disability (Medical LOA for
Off-the Job Injuries, Illnesses and Disability: 9/26/05 – 10/31/05 for
surgery)

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6/21/07 Claim Effective date for Mary filed for State Disability

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5/7/08 Dr. note indicating Mary is to be off work due to medical
condition

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5/12/08 Dr. note indicating Mary may return to work

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5/23/08 Fit for Work exam requested of Hilltop Medical clinic due
to concerns of “…observations of uncontrolled coughing and
concerns about the clarity of her thinking”. The exam signed by
Mark Pierce, M.D. indicated she was “Fit for Work with no

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her health issues.

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The latter (Pl. Ex. 6) lists a date of July 19, 2007 at the top, but Dr. Werner and Plaintiff, next to their signatures,
both dated the review as July 19, 2006.

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limitations”.
8/1/08 Mary’s last day of work; Earned wages through PTO from
8/4/08-8/15/08 per her disability application.
8/18/08 Mary began a Leave of Absence and applied for State
Disability
10/8/08 Mary returned to work with Hilltop Medical Clinic “Fit for
Work with no limitations” exam on 10/7/08

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40. Ultimately, the Court views the 2008 Personnel Review to have emphasized negative

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information and omitted some available positive information in Plaintiff’s record. That

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review was not a comprehensive view of Plaintiff’s employment, given the record

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submitted by the parties to the Court, but it does not indicate a pre-textual intent to

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terminate Plaintiff.

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Written Warnings: September 15, 2009 & August 19, 2009
41. Ms. Engs issued written warnings to Plaintiff on August 19, 2009 and September 15,
2009. (Def. Ex.’s L, M.)
42. The written warning dated August 19, 2009 (Def. Ex. L) stated:
On 8/14/2009 you left your scheduled clients to be seen by
someone else without making arrangement for coverage. In
addition you did not contact your supervisor regarding your leaving
work early. This demonstrates poor judgment, poor customer
service, and a lack of teamwork and professional communication.
Regarding the failure to notify your supervisor when you were
leaving work, the applicable portion of the Attendance standard
states: []
‘All VCSS Shasta employees are expected to report to work as
assigned and/or requested, and to make every effort to avoid a
pattern of excessive absenteeism. Excessive absenteeism places
unfair burdens on co-workers and decreases the quality of service
delivery to children and families by disrupting work schedules,
creating inefficiencies and waste, delays, costly overtime and undue
job pressures.
[ ] Staff unable to report to work as scheduled must contact their
supervisor at least 1 hour prior to the start of the workday.
Staff calling in will call their direct supervisor explaining the need
for absence and what arrangements have been made for coverage
13

or changing appointments.

1

If the supervisor is unavailable to answer the phone, staff will leave
a voice mail message with the information as outlined above.

2
3

In addition to contacting the direct supervisor, staff will also notify
the office personnel and request that their absence be entered in the
Sign-Out log.
This contact must be a person-to-person
conversation, not just a voice mail message.

4
5

Staff are responsible for arranging coverage for all scheduled
responsibilities for the missed time and must work with the
supervisor and/or team to ensure consistent and quality service to
children and families affected by unplanned time off.’11

6
7
8

You have been warned about this behavior previously. In a
corrective action dated 1/26/09, it was explained that “You will
follow procedure when you must call in sick by contacting your
supervisor, the Executive Director, via cell phone as early as
possible, explaining your change in schedule to include whether
others dependent on your schedule have been contacted to cancel.”
Teamwork and communication were also referenced in the previous
corrective action: “You will participate in effective communication
with all members of the VCSS team as well as clients, families and
community partners.”

9
10
11
12
13
14

Plaintiff wrote in the “Employee Comments” section, below the warning:

15

“I accept that I did not follow proper procedure and will do so at all times

16

in the future.

17

43. With respect to the August 19, 2009, warning, Plaintiff testified: “I became very ill at

18

work. I was coughing a great deal, almost to the point of not being able to breathe very

19

well, and I realized I had to leave. I couldn’t see my clients. Ms. Engs was not in the

20

building. I went to the front desk and I told the office staff that I had to leave – this was

21

between coughs – and office staff indicated they would notify people or tell people or I

22

don’t remember the exact language, but my understanding from it was that they would

23

take care of anyone who had to be notified.” (TR 267:1-10.)

24

44. At the time the August 19, 2009, warning was issued, Plaintiff explained to Ms. Engs the

25

action Plaintiff had taken with respect to the cancellation of the appointment. (TR 266:6-

26

269-11.)

27
28

45. The written warning dated September 15, 2009 (Def. Ex. M) stated:
11

Italics not in original.

14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

On the afternoon of 9/4/09, the office received a phone call from
the guardian of a new client with whom [Ms. Philips] had
scheduled an intake. The guardian was concerned because you had
not shown for the appointment that day as scheduled and the child
was in need of services. Your Outlook calendar indicated the
appointment was still scheduled and there was no notation in the
referral database explaining an attempted contact to cancel, even
though you took the day off after the appointment was scheduled.
You report that you attempted to contact the client to reschedule but
there was no way to leave a message. You failed, however, to
notify your supervisor as well as office staff who would be
receiving the client’s call. This demonstrates poor judgment, poor
customer service, and a lack of teamwork and professional
communication.
You have been warned about this behavior previously. In a
corrective action dated 1/26/09, teamwork and communication were
referenced: ‘You will participate in effective communication with
all members of the VCSS team as well as clients, families and
community partners.’ In a corrective action dated 8/19/09, you
were reminded of the importance of arranging for coverage or
appropriately canceling and rescheduling appointments with your
clients.
Any further instance of this poor judgment, poor customer service,
lack of teamwork or professional communication, or failure to
follow any other protocol, will result in termination.
Plaintiff wrote in the “Employee Comments” section, below the warning: “Not as an
excuse, but an explanation I was extremely ill that day and was as stated unable to reach
client’s mother either then or earlier [and] failed to put earlier attempts on referral
database[.]”
46. With respect to the September 15, 2009, warning, Plaintiff testified: “I was off sick one
day. I called Ms. Engs in the morning before work and told her I was not going to be in
that day because I was ill. I had an intake client. I attempted – whenever I felt well
enough during the day to try a phone call, I attempted to call that client. There was no
answer. Eventually, I stopped trying.” (TR 269:21-270:1.)
47. Ms. Engs testified, regarding Plaintiff’s attempt to document her attempts to contact the
client’s guardian: “Mary told me verbally that she had attempted contact with that
guardian and that [s]he had documented that in the client database. When I reviewed the
client database to find that documentation, it was nonexistent.” (TR 75:5-8.) During her
15

1

testimony, Plaintiff did not appear to dispute this statement by Ms. Engs, but did state she

2

could not put attempts to reach the client’s mother on the “referral database,” and that

3

would have to be done at Defendant’s offices. (TR 270:19-23.)

4

48. Regarding protocol when an employee had to miss appointments with clients, Ms. Engs

5

testified: “Staff decides what needs to happen with their case loads. If they’re out ill or

6

for whatever reason, they can certainly go to an office staff person and request assistance,

7

but they have to let their supervisor know what is happening and they have done that.”

8

(TR 73:9-13.)

9
10
11

49. Ms. Engs testified Plaintiff did not communicate to her, on the days giving rise to the
written warnings, that Plaintiff was having recurring bouts of pneumonia. (TR 85:3-12.)
50. Dawn Haskins, Plaintiff’s supervisee during Plaintiff’s tenure as a clinical supervisor,

12

testified that, when she had to miss appointments with clients: “First thing that I would do

13

is to call my supervisor or text her or whatever her preference was and let the office staff

14

know I would not be in, and I would say 99 percent of the time I would call my clients and

15

let them know. There were a couple of occasions like a family emergency that I would

16

call and ask somebody to make that call for me.” (TR 188:3-10.)

17

51. Denise Craig, Plaintiff’s coworker and supervisee, testified that her practice, generally,

18

was to call clients herself when she had to miss an appointment, but she would not

19

consider herself subject to discipline if someone else did. (TR 196:4-25.)

20
21
22

52. Toni Heideman, Plaintiff’s coworker and friend, testified that staff would notify clients
when a clinician had to miss an appointment. (TR 231:14-18.)
53. Plaintiff testified regarding the practice of staff – as opposed to the clinician – arranging

23

coverage: “Some of the clinicians did that if they were very sick and couldn’t notify their

24

clients or if they were very sick at home or didn’t have their client’s phone numbers at

25

home.” (TR 267:11-12.)

26

54. Ultimately, the Court finds that the protocol for missing work due to an illness is

27

described in the August 19, 2009 warning. That protocol required Plaintiff to call her

28

supervisor, leave a voicemail if the supervisor did not answer, and personally arrange
16

1

coverage for her missed appointments. Plaintiff did not follow protocol on each of the

2

days giving rise to either the August 19 or September 15, 2009, written warnings.

3

Relative to the August 19, 2009 matter, Plaintiff testified she did not contact the client to

4

cancel the appointment, she did not notify her supervisor, she told staff that she was

5

leaving, and based upon the staff’s response she understood they would notify Plaintiff’s

6

scheduled clients. (TR 267:1-10.). As to the September 15, 2009, matter, Plaintiff

7

testified she notified her supervisor Ms. Engs12, she did not cancel her intake appointment

8

with a client, she did not notify staff, she tried to call the client but stopped after several

9

unsuccessful attempts, and she either did not or was unable to put her attempts to contact

10

the client in the database. (TR 269:21-270:1, 19-23.). In each instance, the Court finds

11

that Plaintiff either failed to contact clients and/or properly arrange for staff to notify

12

clients of her unavailability or failed to properly notify her supervisor of her

13

unavailability.

14
15

MFT License
55. Plaintiff’s Marriage and Family Therapy (“MFT”) license was not expired on the date she

16

was terminated, although in the days leading up to her termination, Plaintiff had explicitly

17

told Ms. Engs that she “couldn't go to the school to see kids because her license hadn't

18

been renewed.” (Pl. Ex. 100-29; TR 113:14-17; 108:12-14.)

19

56. Defendant did not have a written policy with respect to what a clinician is supposed to do

20

to renew his or her license. (TR 126:22-127:8.)

21

57. A printout out from the Board of Behavioral Sciences, dated November 3, 2009, 8:23 AM

22

showed that Plaintiff’s MFT license was set to expire on October 31, 2011. (Pl. Ex. 100-

23
24
25
26
27
28

12

Plaintiff’s counsel argues (ECF No. 45 at 13-14) there was conflicting testimony between Plaintiff and Ms. Engs
regarding: 1) whether Plaintiff communicated to Ms. Engs that Plaintiff was having recurring bouts of pneumonia on
the dates giving rise to the written warnings of August 19, 2009 and September 15, 2009; and 2) whether Plaintiff
had told Ms. Engs she had been sick and tried to make arrangements for coverage on the dates giving rise to the two
written warnings. However, in reviewing the trial transcript, there did not appear to be material conflicts in the
testimony, rather the Court did find differences in Plaintiff’s and Ms. Engs’ interpretation of whether the protocol
and/or practice of missing appointments was followed. One area of conflict is noted in ¶ 47, wherein Plaintiff failed
to refute during her trial testimony Ms. Engs testimony that Plaintiff expressly told her that she had inputted certain
information into the client database; when Ms. Engs checked the database she found that Plaintiff had not, in fact,
inputted the information. The Court credits Ms. Engs’ testimony on this issue.

17

1

29.) Ms. Engs testified with reference to this printout: “I had checked the [BBS] database

2

prior to this printout, Exhibit 29, and it hadn’t posted yet. When I reviewed the printout

3

that day, it indicated it had been renewed.” (TR 111:18-19.)

4
5
6

58. Plaintiff testified she told Ms. Engs, at the meeting regarding her termination on
November 3, 2009, that her license had not expired. (TR 279:13-17.)
59. Plaintiff’s termination letter, dated November 3, 2009, stated as one of the reasons for

7

termination that: “On 11/2/09 you informed your Director that you would not be able to

8

provide treatment at your assigned schools because you believed your MFT license to be

9

expired. You submitted your license renewal form to your OSM/HRM on 10/19/09 with a

10

license expiration of 10/31/09. The renewal form states that it takes 4-6 weeks for the

11

renewal to be processed but you chose to delay your request to the office until there were

12

just 2 weeks left to renew. This represents poor judgment on your part and interferes with

13

your ability to provide service to your clients.” (Pl. Ex. 34.)

14

60. In a response to Plaintiff’s interrogatories, Defendant stated: “Additionally, Plaintiff was

15

no longer qualified for the position of clinician because she no longer held a valid MFT

16

license.” (Pl. Ex. 94 at 6.)

17

61. In Plaintiff’s February 26, 2010, position statement submitted to the EEOC, Defendant

18

stated: “Respondent agrees that Complainant was discharged on November 3, 2009,

19

because she failed to renew her Marriage and Family Therapist license. An essential

20

requirement of the Clinician position is to hold a clinical license … Because Complainant

21

was no longer registered with the State to provide services, her work could no longer be

22

billed the State for Medi-Cal. Allowing an unlicensed clinician to work at schools could

23

have subjected VCSS to criminal liability for Medi-Cal fraud.” (Pl. Ex. 24 at 29.)

24

62. At her deposition, Ms. Engs stated that one of the reasons she terminated Plaintiff was that

25

Plaintiff had allowed her license to expire, and that she had checked the BBS database on

26

November 3 and it listed the license as expired. (Pl. Ex. 100 at 209:15-20.)

27
28

63. Ultimately, Plaintiff did not dispute that she stated to Ms. Engs, in the days leading up to
her termination, that her MFT license was going to expire. Plaintiff’s doing so was a valid
18

1

reason for termination. During her trial testimony on this issue, Ms. Engs stated that when

2

she checked the database prior to November 3, 2009, Plaintiff’s license had not been

3

renewed, but when she checked the database on November 3, it showed Plaintiff’s license

4

had been renewed to October 31, 2011. (TR 109:10-111:20.) During her deposition

5

testimony Defendant Engs contradicted her subsequent trial testimony when she stated

6

that when she checked the database on November 3, 2009, it said Plaintiff’s license had

7

expired. (Pl. Ex. 100 at 209:15-20; TR 108:23-109:9.) At trial, Engs explained she

8

“clearly misspoke” during her deposition and never had a chance to review her deposition

9

transcript. (TR 110:4-25.) Plaintiff’s counsel attacked Defendant Eng’s credibility based

10

on what she testified to at the deposition on this issue versus her trial testimony. The

11

Court credits Defendant Eng’s explanation that she simply misspoke during her

12

deposition. In any event, Plaintiff’s termination letter indicates that she was not

13

terminated because her license had expired; rather one of the reasons as stated in the letter

14

was Plaintiff’s poor judgment in delaying her license renewal.

15
16
17
18
19
20
21
22
23
24

Request for accommodation
64. Plaintiff made a written request for accommodation based on her disability which
included:


A proposal to work 4 days per week rather than 5.



A reduction in caseload, including that Plaintiff not receive any home-based referrals.



A statement that Plaintiff’s current caseload was 29 clients, 5 of which were homebased and 8 which were opened in the last week; Plaintiff wrote in the request that the
29 clients “does not take into account the clients who [were] open to [her], but whom
[she] plan[ned] to close as soon as [she could] do the paperwork.”

25

The request was granted and signed by Plaintiff, Ms. Engs, and Trinda Dailey on

26

September 3, 2009. (Pl. Ex. 36.)

27
28

65. Plaintiff’s counsel sought to impeach Ms. Engs on when she became aware of Plaintiff’s
disability. Plaintiff’s counsel directed Ms. Engs to:
19

1



2

The 2008 Personnel Review (Pl. Ex. 78), which documents that Plaintiff had health
problems prior to September 3, 2009.

3



Internal human resources documents showing Ms. Engs signed off on Plaintiff’s return

4

from leaves of absence to full-time status, including documents dated April 27, 2009,

5

May 4, 2009, and August 1, 2009. (Pl. Ex. 30.)

6



A formal notice of leave granted to Plaintiff, signed by Trinda Dailey, and stating that

7

on April 27, 2009, Plaintiff “requested a leave of absence due to an off-the-job injury,

8

illness or disability, and you have provided us with a medical certificate of need.” (Pl.

9

Ex. 38.)

10



A form provided by Victor to Plaintiff to take to her private doctor regarding an

11

interactive process involving an ADA issue. The form stated Plaintiff had recurrent

12

bouts of pneumonia. The form was dated by Plaintiff’s physician on August 28, 2009.

13

(Pl. Ex. 61.)

14



An FMLA/CFRA13 Medical Certification, signed on June 9, 2009 by Plaintiff, stating

15

“Patient needs to be able to work intermittently until July 31, 2009. Patient may need

16

to leave early from work.”14 (Pl. Ex. 63 at 1.)

17

66. Ultimately, the Court finds Ms. Engs was aware Plaintiff was experiencing health

18

problems at least starting in November, 2008, when she compiled the 2008 Personnel

19

Review that documented some of these problems.15 Ms. Engs was aware, starting at least

20

in April, 2009, when Plaintiff took a leave of absence for a recurring bout of pneumonia,

21

that Plaintiff was experiencing chronic lung issues. Ms. Engs was formally put on notice

22

that Plaintiff had a disability that required accommodation, on or about September 3,

23

2009, when Plaintiff made the written request. The Court does not view Ms. Engs’

24
25
26
27
28

13

The federal Family and Medical Leave Act and the California Family Rights Act.

14

A different FMLA/CFRA medical certification form, signed and dated by Plaintiff on April 29, 2009, was also
included in Plaintiff’s Exhibit 63.
15

Ms. Engs also testified that Dr. Werner had mentioned, during the time she and Dr. Werner were both working at
Victor in August or September 2008 that Plaintiff was not currently at work because she was on medical leave. (TR
91:14-22.)

20

1

testimony on when she became aware of Plaintiff’s disability or other health problems

2

damaging as to Ms. Engs’ overall credibility.

3
4

Requests for extensions and reductions in caseload
67. Plaintiff’s Exhibit 100-28, entitled “Victor Community Support Services Clinician Case

5

Load”, lists the caseload number for eight clinicians, including Plaintiff, as of October 5,

6

2009 and November 2, 2009. On October 5, 2009, Plaintiff had 29 cases, second most

7

among the listed clinicians. On November 2, 2009, Plaintiff had 28 cases, most among

8

the listed clinicians.16 (Pl. Ex. 100-28.)

9

68. Plaintiff testified, with respect to the period following the September 3, 2009, request for

10

accommodation, that neither her caseload nor her actual workload was reduced. (TR

11

276:15-17.)

12

69. Plaintiff testified, with respect to the period following the September 3, 2009, request that

13

she told Ms. Engs she had too much work to do given her health problems and, as a result,

14

that she could not complete all the tasks assigned to her. (TR 276:18-21.) Plaintiff

15

testified she “asked for an extension for my recerts on things like blood-borne pathogens

16

… and [she] asked for an extension on closing cases,” and that it was possible for Ms.

17

Engs to grant extensions for these tasks. Ms. Engs did not grant them. (TR 275:24-

18

276:25; 308:25-309:9.)

19

70. Plaintiff testified, generally, that between February and September 2009, she had

20

requested extensions from Ms. Engs to complete tasks because of her medical issues.

21

Those requests were denied. (TR 329:6-17.)

22

71. Plaintiff testified that the time constraints due to her medical issues made it difficult to

23

both provide good service to her clients and “close charts”, and that she had explained this

24

to Ms. Engs. (TR 275:24-276:21.)

25
26
27
28

16

The Court lacks context for what group of clinicians this was, but infers this was the group of clinicians working
on or around Plaintiff’s site in Shasta County. Ms. Engs testified: “First of all, this document wasn’t produced by my
office, so I have no way to know whether these are accurate numbers or inaccurate. I believe this was produced by
Mary herself.” (TR 152:6-9.) Otherwise, Ms. Engs did not appear to dispute that, at the time of Plaintiff’s
termination, she had among the highest caseloads of the clinicians working at or around Plaintiff’s site.

21

1

72. Plaintiff did not put in writing her requests for extensions or her explanations that she

2

needed more time to complete tasks due to her medical issues. (TR 331:20-23.)

3

73. Ms. Engs testified, with respect to the period following the September 3, 2009, request,

4

that Plaintiff never told her that Plaintiff was unable to close cases due to her medical

5

condition. Ms. Engs also testified: “In order for a clinician to have a lower caseload, they

6

have to transfer or close cases off of their own caseload, and that’s their responsibility. I

7

documented numerous times in supervision notes that Plaintiff failed to do her closings on

8

time and we talked several times about reducing her caseload, and that was up to her. (TR

9

91:6-92:10.)

10

74. Ms. Engs completed supervision notes based on weekly meetings with Plaintiff. During

11

these sessions, Ms. Engs would present questions, concerns, kudos or anything that she

12

believed Plaintiff’s job required her to have knowledge of, and Plaintiff could raise

13

concerns she had. Ms. Engs would take handwritten notes each session on what was said,

14

and she allowed the supervisee to review the notes and sign them.17 (TR 138:9-140:1.)

15

75. Ms. Engs’ supervision note, dated September 3, 2009, states: “Mary is transferring 2 of

16

her schools to another clinician. Mary will dedicate time next week for closings …” (Def.

17

Ex. P at 43.)

18

76. Ms. Engs’ supervision note, dated September 15, 2009, states: “[Plaintiff] [r]ecently

19

completed 2 closings; has 9+ closings pending.]” (Def. Ex. P at 44.)

20

77. Ms. Engs’ supervision note, dated September 29, 2009, states: “[Plaintiff] [d]id 2 new

21

openings but one may be transferred to another clinician because of school changes.

22

Working on closing cases.” (Def. Ex. P at 45.)

23

78. Ms. Engs’ supervision note, dated October 6, 2009, states: “[Plaintiff] [w]ill have 28

24

clients after completing 6 pending closings. 2 referrals pending. Mary wants to continue

25

to expand groups. This may lead to an increase in Rehab referrals.” (Def. Ex. P at 46.)

26
27
28

17

Some of Ms. Engs’ supervision notes documented interactions she had had with other employees regarding
Plaintiff’s performance; so these were not a documentation of her meetings with Plaintiff and they were not signed by
Plaintiff. (See Def. Ex. P at 7-8.)

22

1

79. Ms. Engs’ supervision note, dated October 29, 2009, states: “She has reduced her caseload

2

to 28 but is pending 5 openings,” and includes further discussion regarding Plaintiff’s

3

attempts to close cases. (Def. Ex. P at 47.)

4

80. In sum, Plaintiff testified that between February and her termination, she verbally

5

requested extensions to complete work, including requests for extensions to close cases,

6

but did not do so in writing. Ms. Engs testified that after the September, 2009

7

accommodation request, Plaintiff never told her that Plaintiff was unable to close cases

8

due to her medical condition. It seems wholly inconsistent that Plaintiff would submit a

9

written request for accommodation due to disability on September 3, 2009, yet fail to also

10

request in that very same document extensions to both complete work and close cases due

11

to medical reasons. It’s also worth noting that Plaintiff signed the request for

12

accommodation which was approved by Ms. Engs. Simply put, this Court did not find

13

Plaintiff’s testimony regarding her verbal requests for extensions to complete work and

14

close cases for medical reasons to be credible. Further, Ms. Engs’ supervision notes,

15

which were signed by Plaintiff, show that Ms. Engs and Plaintiff addressed the reduction

16

of Plaintiff’s caseload multiple times after September 3, 2009, including the opening and

17

closing of specific cases. The supervision notes provide a somewhat detailed picture of

18

Plaintiff either working on or attempting to close cases. The supervision notes also

19

indicate that Plaintiff wanted to continue to expand groups which would lead to an

20

increase in referrals to Plaintiff. Further, Defendant Engs documented Plaintiff’s attempts

21

to close cases. Overall, the supervision notes show that Plaintiff did not make an adequate

22

effort to reduce her caseload on her own. The Court notes that Plaintiff’s annual

23

performance review dated August 1, 2008, signed by Dr. Werner, also references an issue

24

Plaintiff had with closing casings: “At times she is behind in reviewing closures and

25

following up with documentation that needs correct [sic].” (Pl. Ex. 9)

26
27
28

///
///

23

1

Service percentage

2

81. Plaintiff’s “percentage billed to Medi-Cal” or to other agencies, for the pay periods of

3

September 13, 2009 to September 26, 2009; September 27, 2009 to October 10, 2009; and

4

the first quarter of 2009-2010 was the “highest among her peers.”18 (Pl. Ex. 100-20; TR

5

98:1-24.) That Plaintiff consistently met or exceeded her service percentage expectations

6

was included on the September 15, 2009 annual review. (Pl. Ex. 35 at 6.)

7
8

Problems with paperwork
82. Paperwork and accurate recordkeeping were important for meeting Defendant’s mission

9

as well as funding source expectations regarding payment. (TR 134:20-135:4.)

10

83. During Plaintiff’s employment under Ms. Engs’ supervision, Defendant was required to

11

make a request to Shasta County every six months to reauthorize the services Defendant

12

delivered to a child. Doing so required the timely completion of a treatment plan for the

13

child by the clinician. Plaintiff had problems completing her treatment plans. (TR 135:8-

14

136:4.)

15

84. While Plaintiff’s supervisor, Dr. Werner completed supervision notes that documented

16

Plaintiff’s performance and his and Plaintiff’s meetings regarding Plaintiff’s performance.

17

(Def. Ex. P at 1-6; Pl. Ex. 83.)

18

85. Dr. Werner’s supervision note, dated January 4, 2008, stated: “Additional errors encoding

19

/ billing called to Mary’s attention that were given to her at leadership meeting on 1-3.”

20

(Pl. Ex. 83 at 17.)

21

86. Dr. Werner’s supervision note, dated January 8, 2008, stated in part: “Errors in TBS cases

22

reviewed with Mary and Suzanne [;] Notes not sent to Co. [;] Duplicate notes, missing

23

notes [;] Time same on summary (weekly) [;] Error in time on multiple documents, e.g.

24

daily or weekly [;] Notes not signed [;] Diff. between summary and notes [;] Variability in

25

quality of notes [;] Missing weekly [;] Lack of [unreadable] on cases [;] Mary told things

26
27
28

18

The Court infers this was the group of clinicians working generally within Plaintiff’s supervision group, or at
Plaintiff’s site, in Shasta County.

24

1

need to change. Errors need to be caught, fixed if she is to continue in job.” (Pl. Ex. 83 at

2

17.)

3

87. Dr. Werner’s supervision note, dated April 8, 2008, stated in part: “Improvement in areas

4

discussed before about paperwork.” (Pl. Ex. 83 at 8.)

5

88. Dr. Werner’s supervision note, dated June 17, 2008, stated in part: “Talked about

6

improvements in paperwork.” (Pl. Ex. 84 at 4.)

7

89. Dr. Werner’s supervision note, dated July 15, 2008, stated in part: “Discussed means of

8

avoiding clerical errors in documentation + picking them up in reviewing documentation.”

9

(Pl. Ex. 83 at 3.)

10
11

Relationships with coworkers and supervisees19
90. Dr. Werner’s supervision notes on Plaintiff, dating from at least May 2, 2006 through July

12

29, 2008, during the time Plaintiff was a clinical supervisor, contained no indication

13

Plaintiff had a poor relationship with her supervisees. (Pl. Ex. 83; TR 52:20-53:6.)

14

91. The annual performance review dated August 1, 2008, completed by Dr. Werner,

15

contained mostly positive comments of Plaintiff’s relationship with her co-workers and

16

supervisees, with the exception of her processing the medical documentation of her

17

supervisees. (Pl. Ex. 9.)

18

92. Ms. Engs’ supervision note, dated October 14, 2008, describes that a staff member had

19

approached Ms. Engs with concerns regarding Plaintiff’s role as a supervisor, including

20

that (as written by Ms. Engs), Plaintiff had “publically and inappropriately made

21

comments during staff meeting yesterday. [The staff member] reported that this has

22

happened previously and she is concerned about impact of supervisor’s contention on

23

direct staff.” (Def. Ex. P at 7.)

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93. Ms. Engs’ supervision note, dated October 17, 2008, describes one of Plaintiff’s

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supervisees, Rachel Freeman, reporting to Ms. Engs that she felt “belittled, unheard, and

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At trial, the parties did not object on hearsay grounds to any of the evidence included in this section. The parties
stipulated to the admission of the applicable portions of Ms. Engs’ supervision notes. (Def. Ex. P1-P47.)

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dismissed” by Plaintiff. The note was not signed by Plaintiff. (Def. Ex. P at 8; TR 38:17-

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22.)

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94. Ms. Engs’ supervision note, dated November 5, 2008, described a discussion Ms. Engs

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and Plaintiff had regarding steps Plaintiff intended to take to improve relations with co-

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workers and be a more effective supervisor. The note was signed by Plaintiff. (Def. Ex.

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P. at 11.)

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95. Ms. Engs’ supervision note, dated November 6, 2008, describes a staff member’s concern

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regarding “long-standing difficulties” working with Plaintiff. The note was not signed by

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Plaintiff. (Def. Ex. P at 12.)

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96. Ms. Engs testified Plaintiff’s supervisee, Maria Rodriguez-Roa, had informed Ms. Engs

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she did not trust Plaintiff in their supervisor-supervisee relationship. (TR 39:21-24.)

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97. A supervisor evaluation form regarding Plaintiff, completed by a clinician who resigned in

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December, 2008, contained mostly negative ratings. The employee exit survey completed

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by the same clinician cited “did not get along with my supervisor” as the primary reason

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for leaving. In accompanying comment to the exit survey, the employee wrote:

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“Terminate or demote Mary Phillips + hire a clinical supervisor that can represent

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themselves professionally and has adequate experience in clinical work + supervision.”

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(Pl. Ex. 88.)

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98. Dawn Haskins testified she had no problems with Plaintiff serving as her supervisor. (TR

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187:3-5.) She believed some of her co-workers were frustrated with Plaintiff having to

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miss time from work due to medical issues. (TR 188:24-190:11.)

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99. Denise Craig testified she had no problems with Plaintiff serving as her supervisor and
thought Plaintiff was a good supervisor. (TR 194:9-13.)

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100. Ultimately, the Court views the facts to be that some staff members did not have any issue

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with Plaintiff as a supervisor. However, other employees did have concerns with Plaintiff

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serving as their supervisor in the period following Plaintiff’s return to work in October,

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2008 until termination was raised by Ms. Engs at the January 7, 2009 meeting. The

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disgruntled employees presented a legitimate reason to raise the issue of termination at the

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January 7, 2009, meeting.

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January, 2009 Meetings
101. Plaintiff testified, regarding the January 7, 2009, meeting with Ms. Engs, that Ms. Engs:
“told me that there were issues with my performance, and when I requested to know what
the issues were, she said she didn’t feel that I could correct the issues, so she thought I
would be better off not working for Victor.” (TR 260:13-17.) Ms. Engs testified she did
not recall discussing termination with Plaintiff on January 7th. (TR 41:20-22.) To the
extent Defendant Engs’ lack of recall creates a conflict, the Court credits Plaintiff’s
uncontradicted testimony and finds there is a possibility termination was raised at the
January 7, 2009, meeting based on what transpired during the meeting on January 12,
2009.
102. Regarding the meeting with Ms. Engs on January 12, 2009, at which Plaintiff was
presented with the severance and release, Plaintiff testified she understood the January 14,
2009, date on the release to be her last day to “make a decision.” (TR 262:1-8.)
103. Regarding the meeting on January 26, 2009, at which Plaintiff was demoted, Plaintiff
testified: “I don’t remember any discussion. I remember being told I was demoted and
being told that there was nothing I could do about it.” (TR 264:20-22.) Regarding that
same meeting, Ms. Engs testified she had a discussion with Plaintiff regarding
maintaining trust with her supervisees and that Plaintiff had expressed concerns to her that
the information was inaccurate. (TR 58:10-59:6.) To the extent there is a conflict, the
Court credits Ms. Engs’ testimony.
Social Security Disability

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104. Plaintiff applied for Social Security Disability (“SSD”) shortly after her termination. She

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began to receive payment benefits in 2010. She is still receiving SSD benefits. (TR

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302:1-303:5.) Plaintiff’s two back surgeries were the medical condition permitting her to

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receive benefits.20 (TR 303:23-25.)

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105. Plaintiff testified she was capable of working, despite her current receipt of SSD benefits.

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Plaintiff has applied for other jobs since her termination, including applying for a clinician

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position in Shasta County, California. (TR 282:17-284:4, 304:6-12.)

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CONCLUSIONS OF LAW
At will employment
106. The parties do not appear to dispute that Plaintiff’s employment with Defendant was at

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will. The Court notes that under California law, an employee’s term of employment,

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when not specified in an employment contract or other document or oral agreement, is

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considered a term that may be terminated “at will” by either party. Pomeroy v. Wal-Mart

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Stores, Inc., 834 F. Supp. 2d 964, 973 (E.D. Cal. 2011). See Cal. Labor Code § 2922.

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(“An employment, having no specified term, may be terminated at the will of either party

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on notice to the other.”) “Thus, in the absence of any evidence of the duration or term of

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employment under a written or oral agreement, there is a statutory presumption that

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employment is terminable at will, and a contract of employment may be ended at any time

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at the option of either party.” Eisenberg v. Alameda Newspapers, Inc., 74 Cal. App. 4th

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1359, 1386 (1999). The at-will presumption may be rebutted only by evidence of an

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express or implied agreement that the employment will terminate only “for cause.” Hoy v.

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Sears, Roebuck & Company, 861 F. Supp. 881, 885 (N.D.Cal.1994).

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McDonnell Douglas burden-shifting
107. The Court does not formally track the burden-shifting framework of a McDonnell-

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Douglas analysis. See Costa v. Desert Palace, Inc., 299 F.3d 838, 855-56 (9th Cir. 2002):

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Regardless of the method chosen to arrive at trial, it is not normally
appropriate to introduce the McDonnell Douglas burden-shifting
framework to the jury. At that stage, the framework “unnecessarily
evade[s] the ultimate question of discrimination vel non.” U.S.

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Plaintiff did not appear to testify further at trial regarding these back surgeries. (TR 252:16-253:24.)

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Postal Serv. Bd. v. Aikens, 460 U.S. 711, 714 (1983)].

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Once at the trial stage, the plaintiff is required to put forward
evidence of discrimination “because of” a protected characteristic.
[f.n.] After hearing both parties' evidence, the district court must
decide what legal conclusions the evidence could reasonably
support and instruct the jury accordingly. This determination is
distinct from the question of whether to invoke the McDonnell
Douglas presumption, which occurs at a separate, earlier stage of
proceedings, involves summary judgment rather than jury
instructions, and is unrelated to the number of possible motives for
the challenged action. Costa v. Desert Palace, Inc., 299 F.3d 838,
855-56 (9th Cir. 2002).21

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This was not a jury trial, but the Court finds the above-cited reasoning in Costa applicable

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to this case. The Court does consider, in its analysis, whether Defendant had legitimate,

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non-discriminatory reasons for taking any adverse employment action, Texas Dept. of

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Community Affairs v. Burdine, 450 U.S., 254-255 (1981), because its findings in that

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regard are relevant to whether Plaintiff has shown, by a preponderance of the evidence,

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that her disability was a motivating factor for those actions.

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Discrimination under the ADA: Applicable Law
108. To prevail on her disability discrimination claim under the ADA, Plaintiff must establish

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that she: 1) has a disability; 2) is qualified by demonstrating the ability to perform the

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essential functions of the job with or without a reasonable accommodation; and 3) that she

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suffered an adverse employment action because of the disability. Hutton v. Elf Etochem

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No. Am., Inc., 273 F.3d 884, 891-92 (9th Cir. 2001).

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109. To be “qualified”, the disabled individual must possess the requisite skill, experience,

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education, and other qualification standards for the employment position; and must be

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able to perform the essential functions of the position held or desired with or without

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reasonable accommodation. 29 C.F.R. § 1630.2(m).

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The Costa court also stated: “In one limited circumstance, the [McDonnell-Douglas] presumption retains vitality at
trial: where there is no rebuttal by the employer, but the plaintiff's prima facie case is in factual dispute. The jury then
determines whether the prima facie case is established. If it is, the jury must find discrimination.” Costa, 299 F.3d at
851, n. 6 (citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509-510). In the instant suit, Plaintiff has made a
prima facie case.

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110. Under 42 U.S.C. § 12112(a), “No covered entity shall discriminate … because of the

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disability of such individual ….”). The ADA’s “because of” language does not require a

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showing that a disability or a reasonable request for accommodation be the sole cause for

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an adverse employment action. Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1063-

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1066 (9th Cir. 2005). “[T]he ADA outlaws adverse employment decisions motivated,

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even in part, by animus based on a plaintiff’s disability or request for an accommodation –

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a motivating factor standard.” Id. at 1065.

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Failure to Accommodate under the ADA: Applicable Law
111. A “reasonable accommodation” under the ADA means: “[m]odifications or adjustments
to the work environment, or to the manner or circumstances under which the position held
or desired is customarily performed, that enable an individual with a disability who is
qualified to perform the essential functions of that position”; or “[m]odifications or
adjustments that enable a covered entity's employee with a disability to enjoy equal
benefits and privileges of employment as are enjoyed by its other similarly situated
employees without disabilities.” 29 C.F.R. § 1630.2(o). A reasonable accommodation
may include “job restructuring, part-time or modified work schedules … and other similar
accommodations for individuals with disabilities.” 29 C.F.R. § 1630.2(o).
112. The Court’s inquiry looks to whether “the employer took reasonable steps to
accommodate [Plaintiff’s] limitations in ways that would not impose undue hardship.”
McAlindin v. Cnty. of San Diego, 192 F.3d 1226, 1236 (9th Cir. 1999) (referencing 42
U.S.C. § 12112(b)(5)(A)). “The essence of the concept of reasonable accommodation is
that, in certain instances, employers must make special adjustments to their policies for
individuals with disabilities … The ADA places a duty to accommodate on employers in
order to remove barriers that could impede the ability of qualified individuals with
disabilities to perform their jobs. Moreover, this is a continuing duty that is not exhausted
by one effort.”

Id. (internal citations and quotation marks omitted).

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113. “To determine the appropriate reasonable accommodation it may be necessary for the

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covered entity to initiate an informal, interactive process with the individual with a

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disability in need of the accommodation. This process should identify the precise

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limitations resulting from the disability and potential reasonable accommodations that

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could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3).

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Retaliation under the ADA: Applicable Law
114. With respect to Plaintiff’s retaliation claim under the ADA, Plaintiff must show: 1) she

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engaged in conduct protected under the ADA; 2) she suffered an adverse employment

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action; 3) there was a causal link between the protected conduct and the adverse

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employment action; and 4) the protected activity was a motivating factor in the adverse

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employment action. See Ninth Circuit Model Jury Instruction & Comment 12.10 (2007).
Ultimate Conclusions of Law

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115. Plaintiff’s chronic lung issues were a disability within the meaning of the ADA.

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116. Plaintiff engaged in conduct protected under the ADA: she consulted an attorney

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regarding her fear of being discriminated against due to her disability in January, 2009;

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she requested time off multiple times in 2009; and she made a formal request for

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accommodation, on or about September 3, 2009.22

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117. Plaintiff experienced adverse employment actions during the time she was disabled: she

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was demoted and eventually terminated.

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118. Plaintiff was qualified for the position of clinician, with a reasonable accommodation

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given her health issues when terminated, and without a reasonable accommodation if her

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health issues improved.

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119. Defendant had legitimate, non-discriminatory reasons for demoting and terminating

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Plaintiff.

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As stated, supra, the Court finds there is insufficient evidence to find that Plaintiff requested extensions to
complete work due to her medical issues, and thus does not find that Plaintiff engaged in a protected activity by
making such requests.

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120. Plaintiff has not shown by a preponderance of the evidence that her disability was a

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motivating factor in her demotion or termination.
121. Plaintiff has not shown by a preponderance of the evidence that Defendant failed to

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accommodate her disability.
122. Plaintiff has not shown by a preponderance of the evidence that her engaging in a

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protected activity was a motivating factor in her demotion or termination.

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ORDER

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In consideration of the foregoing Findings of Fact and Conclusions of Law, it is ordered
that judgment is entered in favor of Defendant. The Clerk of the Court is directed to close the
case.

Dated: March 27, 2015

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Troy L. Nunley
United States District Judge

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