Nurse Faces Retaliation For Speaking Tagalog On the Job
	Tagalog Caused Dissention, Making Nurses and Patients Feel Uncomfortable and Excluded
	Discrimination Based on National Origin

Workplaces generally are microcosms of the society at large. As our society becomes more diverse with people from different nations and cultures coming together, their presence in workplaces is bound to cause conflicts. Workers with common language and national heritage have a natural tendency to coalesce, and this gives rise to communication problems and formation of cliques. Job performance, harmony, cohesiveness and patient care often become the ultimate casualties.

Is employer justified in enacting "English Only" rule at work in the name of better management? Could this be construed as discrimination against those who wish to communicate among themselves in their native tongue? Could the disciplinary action to enforce the rule be judged by courts as retaliatory? This interesting case answers these questions.

Facts : Adelaida Dimaranan, a native of the Philippines, was first employed by defendant Pomona Valley Community Hospital in 1977 and was transferred to the Mother/Baby Unit (the "M/B Unit") of the Hospital in 1981. During the period that plaintiff worked on the M/B Unit she was supervised by Mary Holstein, the head nurse of the Unit. Ms. Holstein became plaintiff's patron and sponsor, actively encouraging plaintiff's advancement and eventually promoting her, in 1986, to Assistant Head Nurse ("AHN") of the M/B Unit for the evening shift. Ms. Holstein is among the persons now charged with intentionally discriminating against plaintiff on account of her national origin.

Prior to plaintiff's 1986 promotion, her personnel record demonstrates a long and satisfactory employment history with the Hospital. The plaintiff had received consistently high performance reviews and was described by Ms. Holstein as a very capable nurse with excellent clinical skills and an excellent addition to the M/B Unit. At Ms. Holstein's prompting, Ms. Dimaranan applied for, and eventually received, R.N. II status, a status awarded only to those nurses who displayed superior clinical skills. For the year following plaintiff's 1986 promotion, she continued to receive uniformly above-standard performance evaluations from Ms. Holstein. The only negative feature of plaintiff's reviews was concerns about her "listening skills," as it was noted that plaintiff needed to develop more effective channels of communication with her staff.

However, in late 1987, problems began to surface on the evening shift of the M/B Unit. Staff nurses began complaining about plaintiff's management performance, including her failure to listen to staff nurses, to properly implement the mother/baby couplet care program, and to communicate effectively with staff members. There was criticism of plaintiff's authoritarian management style, of unfair and unbalanced patient assignments, and of favoritism in the treatment of staff nurses.

There were also complaints concerning plaintiff's use of Tagalog, the native language of the Filipina nurses, on the Unit. A nurse that had only recently been transferred to the evening shift of the Unit complained to Ms. Holstein that the use of Tagalog was rude and disruptive, and that the non-Filipina nurses felt left out when Tagalog was spoken. Ms. Holstein was deeply concerned about the disunity among the nurses on the evening shift of the M/B Unit, given the critical nature of the services provided in the Unit. She relayed these concerns to Jan Paulson, Vice-President of Nursing Services, and together they met with plaintiff to counsel her regarding the complaints. The complaints, however, continued.

In February, an evening shift nurse on the Unit told Ms. Holstein that plaintiff was showing a preference for her "friends" and that the Filipina nurses' use of Tagalog interfered with the other nurses' ability to communicate with plaintiff. This nurse believed that the Unit was disorganized and essentially divided into two groups. The dividing factor appeared to be the use of Tagalog.

Ms. Holstein was disturbed by these comments and spent an evening working on the Unit. She discovered general discontent among many of the Unit's nurses, finding that many nurses believed that the Unit was fragmented and that plaintiff ignored their suggestions and concerns. Ms. Holstein also discovered that Tagalog was spoken frequently among the Filipina nurses on the Unit, making the non-Tagalog speaking nurses, and to some extent, even patients, feel uncomfortable and excluded. Ms. Holstein then met with Connie Tanquary, Director of the M/B Unit. Both Ms. Holstein and Ms. Tanquary believed that the use of Tagalog was contributing to the dissension among the Unit's nurses, and that plaintiff, rather than working to harmonize the ethnically diverse nurses, was instead fostering the Unit's disunity by continuing to use Tagalog herself and by encouraging other Filipina nurses to use it also.

In an attempt to remedy this increasing dissension, a staff meeting was held in April, 1988. It was at this meeting that Ms. Tanquary first asked that Tagalog not be spoken on the Unit. When the evening staff met again the following month, however, several nurses complained that Tagalog was still being spoken during the evening shift. Ms. Holstein responded by prohibiting the use of Tagalog on the Unit.

Despite the announced language restriction, the Filipina nurses, including plaintiff, continued to use Tagalog, and hostilities continued to further divide the Unit. In June 1988, Ms. Tanquary met with Personnel Director Dennis Phelps to discuss plaintiff's relocation. It was determined, however, that there was insufficient documentation at that time to justify plaintiff's relocation, and consequently, no action was taken. In August 1988, Ms. Holstein, Ms. Tanquary, and Ms. Paulson met to consider a demotion and transfer of plaintiff, in light of Mr. Phelps' view that the existing documentation was insufficient to justify plaintiff's demotion.

In January 1989, plaintiff received her yearly performance evaluation covering the period of August 1987 to August 1988. Unlike plaintiff's prior evaluations, the tone and content of this evaluation were almost entirely negative. Almost every aspect of plaintiff's management skills was criticized. She was characterized as defensive, unable to listen or to be fair, and inefficient at solving problems. Management, therefore, concluded that plaintiff lacked the judgment necessary to lead her staff, and that, unless she demonstrated improvement, she would be terminated.

On March 3, 1989, plaintiff filed a charge with the California Department of Fair Employment and Housing and the Equal Employment Opportunity Commission ("EEOC"). The plaintiff claimed discrimination based on national origin and alleged that Pomona Valley Community Hospital's "No Tagalog" rule violated the Filipina nurses' civil right to be free from employment discrimination. The plaintiff also claimed that her poor performance review was in retaliation against her continued use of Tagalog on the Unit and her resistance to management's attempts to preclude the use of her native language.

A special staff meeting of the evening shift of the M/B Unit was held on March 22, 1989. At the meeting, Fan Paulson denied that the Hospital had an "English Only" language policy. Robert Burwell, President of the Hospital, subsequently issued a letter to all Hospital employees, also denying a per se language restriction. Burwell's letter stated that an employee may speak a language other than English while on duty, provided that doing so did not interfere with the employee's ability to perform his or her duties and did not in any way interfere with patient care.

On March 28, plaintiff began a medical leave of absence. When she returned to work on June 17, her performance became the subject of almost daily scrutiny and documentation. The plaintiff filed this lawsuit on July 18, l989. On July 20, she was counseled and provided with an extensive written record of her deficiencies in the management and operation of her shift. An employee conference followed, during which plaintiff's performance was again evaluated very critically.

On September 21, plaintiff was removed as Assistant Head Nurse of the M/B Unit and reassigned as a staff nurse in the Secure Care Unit of the Emergency Room. She subsequently applied for, and was denied, other available positions in the Hospital.

What started as a management problem ended in this Title VII action. The plaintiff asserts that Pomona Valley Community Hospital adopted an "English Only" rule in violation of Title VII's prohibition against discrimination in the workplace based on national origin. The plaintiff also contends that she was retaliatory demoted when she refused to comply with the language policy.

Court Decision:

Did the Hospital Have an English-Only Rule?

Contrary to plaintiff's assertions, the Court finds that Pomona Valley Community Hospital did not have an "English-only" rule. It is beyond question that certain members of the Hospital's management team sought to restrict the use of Tagalog by the Filipina nurses employed in the M/B Unit on the evening shift. But this attempt is far from an English-only rule. The restriction was limited to the evening shift of the M/B Unit, and restricted the use of Tagalog only. The plaintiff herself admitted, in her EEOC Charge and in her testimony to the Court, that there was no restriction on the use of other non-English languages in the Unit, such as Spanish.

It is the conclusion of the Court that the Hospital's language-related directives were little more than management's response to the increasing tension that was dividing the staff nurses on the M/B Unit. The non-Filipina nurses believed that plaintiff showed favoritism in terms of unfair patient assignments and workloads towards other Filipina nurses. The non-Filipina nurses resented the only objective criterion which could be attributed to this favoritism — the use of Tagalog.

Title VII Discrimination

Title VII, which prohibits discrimination in employment based on race, color, sex, religion or national origin, was enacted to assure equality of employment opportunities and conditions, to eradicate discrimination in employment, and to attempt to make victims of employment discrimination whole.

It is clear that the restriction on the use of Tagalog was not the result of racial animus. Tagalog was spoken for many years without complaint from management. Moreover, Mary Holstein, one of the parties charged with having implemented and enforced the language rule with an intent to discriminate, had previously acted as plaintiff's benefactor, encouraging and facilitating her promotion. Ms. Holstein's prior relationship with plaintiff militates heavily against a conclusion that the language rule was instituted with an intent to discriminate against plaintiff and the other Filipina nurses because of their national origin. However misguided and ineffective the Hospital's language restriction may have been, there is simply no basis for concluding that it was motivated by ethnic animosity.

It is clear that management was not primarily concerned with the use of Tagalog, but rather with the breakdown of cohesion on the M/B unit and the effect of dissension upon the well-being and safety of mothers and their newborns. The Court is absolutely certain that had complaints by staff nurses regarding inappropriate couplet care, divisiveness, favoritism, and poor communication on the Unit not surfaced, the Hospital would never have been concerned with the use of Tagalog. This action should never have been a Title VII case. Management's decision to focus on the use of Tagalog, in an effort to restore crucially important harmony and cohesion, permitted plaintiff to escalate what was merely a management problem into a Title VII case. Language was clearly never the central focus of management, and Tagalog was, so to speak, merely caught in the cross-fire. The Court, therefore, cannot conclude that the Hospital's language rules violated Title VII by intentionally discriminating against plaintiff on the basis of her national origin.

Title VII Retaliation

An employer may also violate Title VII by retaliating against an employee who has opposed any practice which is or is reasonably thought to be unlawful under Title VII.

The Court believes that plaintiff's opposition to the language policy was an essential ingredient in the demotion decision, and that plaintiff, therefore, suffered unlawful retaliation. Beginning in late 1987, when the language issue surfaced, and extending throughout plaintiff's tenure as Assistant Head Nurse of the evening shift, plaintiff consistently refused to comply with the Hospital's order not to speak her native tongue and, likewise, refused to enforce the policy with respect to other Filipina nurses. The plaintiff's opposition to the Hospital's directive culminated in the filing of the EEOC charge and, eventually, this lawsuit.

The most telling evidence of a retaliatory motive is the process by which a record was developed for the purpose of demoting plaintiff. As early as August 1988, it was clear that the management team wanted to remove plaintiff from her position as Assistant Head Nurse. However, it had already been determined that the existing documentation against plaintiff was insufficient to justify her demotion. The plaintiff filed her EEOC charge in March 1989, and by June 1989, when she returned to work from a medical leave, her performance was subjected to intensive, daily scrutiny. Not only did Ms. Holstein herself collect daily documentation, but she enlisted the aid of the night Assistant Head Nurse, who would arrive early to document plaintiff's shift's deficiencies. Other Assistant Head Nurses were not similarly scrutinized.

This exacting scrutiny of plaintiff's performance eventually resulted in her demotion in September, 1989, only two months after she filed this lawsuit. It taxes credulity that an employee with an almost unblemished employment history would suddenly, within one year's time, become an inefficient, abusive, and authoritarian manager. The incidents which were recorded during this heightened scrutiny were trivial and relatively common, the types of incidents that occur every day and on every shift as part of the normal operation of a maternity ward. Yet in plaintiff's case, these incidents resulted in written criticisms.