Judge: Armen Tamzarian, Case: 20STCV18692, Date: 2023-01-19 Tentative Ruling

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Case Number: 20STCV18692    Hearing Date: January 19, 2023    Dept: 52

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

On January 19, 2023, the court held a hearing on the following matters:

1.         Defendants Sysco Riverside, Inc., Sysco Corporation, Patti Cheselske, Jon Nelson, Chris Wiley, Terence Johnson, Teresa Livesay, Mario Guerrero, and Randy Hoover’s motion for summary judgment or, in the alternative, summary adjudication;

2.         Defendants’ motion to sever trial.

MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION

I.                   Legal Standard for Summary Judgment

Courts grant summary judgment or adjudication where no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.  (Code Civ. Proc., § 437c, subd. (c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.)  A defendant moving for summary judgment must show “that one or more elements of the cause of action… cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  Once the defendant does so, the burden shifts to the plaintiff to show a triable issue of at least one material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) 

For employment discrimination and retaliation claims, “California follows the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 to determine whether there are triable issues of fact for resolution by a jury.”  (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109.)  First, “[i]f the employee successfully establishes [the] elements and thereby shows a prima facie case exists, the burden shifts to the employer to provide evidence that there was a legitimate, nonretaliatory reason for the adverse employment action.  If the employer produces evidence showing a legitimate reason for the adverse employment action, the presumption of retaliation drops out of the picture, and the burden shifts back to the employee to provide substantial responsive evidence that the employer’s proffered reasons were untrue or pretextual.”  (Ibid., citations and internal quotes omitted.)

“Both direct and circumstantial evidence can be used to show an employer’s intent to retaliate.  ‘Direct evidence of retaliation may consist of remarks made by decisionmakers displaying a retaliatory motive.’ ”  (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153.)  “Circumstantial evidence typically relates to such factors as the plaintiff’s job performance, the timing of events, and how the plaintiff was treated in comparison to other workers.”  (Ibid.)

II.                1st Cause of Action: Violation of Labor Code § 1102.5

All plaintiffs allege this cause of action against defendants Sysco Riverside, Inc. and Sysco Corporation.  The framework of burden shifting under McDonnell Douglas does not apply to this claim.  “In a civil action … brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.”  (Lab. Code, § 1102.6.) 

“The plaintiff need not satisfy McDonnell Douglas in order to meet the initial burden of making a prima facie case.  Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.”  (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718 (Lawson).)  “Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action.”  (Id. at p. 716.)

A.        Plaintiff Jose Lopez

Defendants establish there is no triable issue of fact as to plaintiff Jose Lopez.    Even assuming he met his burden of showing a prima facie case, defendants present undisputed evidence of a legitimate, independent reason to terminate him. 

Jose Lopez last worked for Sysco Riverside around July 2017, when he went on a medical leave of absence.  (Arian Decl., Ex. Q, Jose Lopez Depo. 105:20-22, 106:13-16.)  On July 31, 2018, Sysco Riverside sent him a letter offering to meet with him about finding a reasonable accommodation other than a leave of absence.  (Id., 106:25-109:2, Ex. 21.)  He testified he did not recall responding.  (Id., 108:21-109:2.)  Sysco Riverside sent similar letters to him on June 16 (id., 109:12-20, Ex. 22) and June 30, 2020 (id., 115:4-21, Ex. 24).  Again, Jose Lopez testified he did not remember responding or contacting The Hartford, Sysco’s third-party leave administrator.  (Id.,  115:12-21.)

Meanwhile, Jose Lopez submitted an unemployment insurance claim on December 23, 2018 (Jose Lopez Depo., 112:9-114:22, Ex. 23) and found a different full-time job in November 2019 (id., 16:14-17:25).  On September 8, 2020, Sysco sent him a letter informing him of his termination.  (Id., 118:22-119:6, Ex. 27.)

Plaintiffs do not show any genuine dispute over these facts.  In their opposing separate statement, plaintiffs merely restate the first amended complaint’s allegations.  (Opp. separate statement, UMF Nos. 119-146, pp. 92-115.)  They cite no supporting evidence.

These undisputed facts constitute clear and convincing evidence defendants would have terminated Jose Lopez even if he had never engaged in any activities protected under Labor Code section 1102.5.  Defendants terminated him because he had not worked there for three years and did not respond to their correspondence about returning to work.

Defendants were not required to indefinitely extend his leave of absence even though he stopped communicating with them.  (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 [“a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties”].)  No reasonable factfinder could conclude that any complaint protected under Labor Code section 1102.5 was a contributing factor in defendants’ termination of Jose Lopez’s employment.

B.        Other Plaintiffs: Protected Activity

Triable issues of fact preclude summary adjudication as to the other five plaintiffs.  First, there are triable issues on whether they disclosed information they reasonably believed “discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.”  (Lab. Code, § 1102.5, subd. (a).) 

Defendants argue plaintiffs all complained only about how they were supervised, not a violation of any law.  But each plaintiff submits evidence he reported violations of law or regulations. 

Joseph Williams submitted an affidavit to the National Labor Relations Board attesting to violations of the National Labor Relations Act in September 2017.  (Gallagher Decl., Ex. 2, pdf pp. 113-120.)  In April 2018, he filed an administrative complaint with the Department of Fair Employment and Housing on April 20, 2018.  (UMF No. 27.)  In his deposition, he testified that he complained to various supervisors and other Sysco employees about “being forced to allow the warehouse to load cold products onto the trailers before the trailers were properly precooled.”  (Ex. 3, 11:16-12:17.)  In August 2018, Williams submitted a complaint to the Department of Industrial Relations about meal and rest period violations.  (Gallagher Decl., Ex. 2-B, pdf pp. 152-153.)

Jesus Lopez states he complained to superiors (and OSHA) that drivers were speeding in the yard and Sysco did not post a speed limit as required.  (Jesus Lopez Decl., ¶ 4.)  On May 16, 2017, he sent an email to Patti Cheselske reporting a coworker driving 25 miles per hour when the speed limit should be 10.  (Gallagher Decl., Exs. 6, 37, p. SYSCORIV000558.)  He wrote that a supervisor told the coworker he was allowed to drive over 10 miles per hour.  (Ibid.)  Jesus Lopez further states that “Sysco was showing their drivers how to falsify the DOT inspection sheets” (Jesus Lopez Decl., ¶ 13) and that he “opposed this illegal practice verbally to supervisors Randy Hoover, Chris Wiley, Mario Guerrero” (id., ¶ 14).  He also “complained about the transportation supervisors trying to force us to use electronics while driving to communicate with them.”  (Id., ¶ 15.)  Furthermore, Sysco documented that on September 29, 2017, Jesus Lopez (referred to as “Jesse”) told Cheselske he was pressured to drive over the speed limit (Arian Decl., Ex. A, p. SYSCORIV000525) and that Randy Hoover pressured a truck driver to driver in dangerous conditions (id., p. SYSCORIV000532).

Luis Melendez testified at his deposition that he complained about his supervisors “were making us – pressing us to get out of the route through a speedy pre-trip. … [T]hat the times that they – that they were giving is not enough time.”  (Melendez Depo., 175:13-18.)  When Sysco disciplined him for not meeting productivity goals, he disputed the discipline because “[i]f you were actually to run a route and trying to meet those [Sysco’s] goals, it’s unsafe.”  (Id., 275:12-15.)

Herbert Castro testified he complained about violating DOT limits on drivers’ hours.  (Castro Depo., 96:4-15.)  He also testified he complained about “[c]hicken, salmonella leaking on fresh product like vegetables, fruits.”  (Castro Depo., vol. 3, 260:6-10.)  And when asked if he ever complained “about the tractor-trailers being unsafe,” he replied “yes.”  (Id., 263:19-23.)  He described a multitude of safety issues he complained about, such as: “Lifts broken on the lift gate”; “Pee bottles inside of the trailers”; “Turn signals not working”; “Doors not being able to close correctly” so drivers would “[h]ave to hold it with one hand and drive with another”; and “Headlights not working.”  (Id., 265:6-267:10.)  He testified that he complained about these safety issues to numerous superiors.  (Id., 263:25-265:5.) 

Finally, Jason Carley Munz testified at deposition that he was “being asked to violate DOT hours of service regulations” during his “whole employment.”  (Arian Decl., Ex. M, Munz Depo., 49:8-12.)  He testified he was forced to drive trucks that were unsafe due to “overweight trailers” or with brakes that “didn’t work very good at all, sometimes not at all.”  (Gallagher Decl., Ex. 14, Munz Depo., 79:9-11.)  Munz also testified he complained when he his absences were not excused despite being covered by FMLA.  (Id., 90:21-91:23.)  In his declaration, Munz states he “opposed the illegal practice of falsifying driver logs” and “told Chris Wiley that I didn’t think it was right.”  (Munz Decl., ¶ 6.)  The record also includes an email from Chris Wiley to other Sysco employees noting that Munz once “stated he doesn’t feel safe to drive,” and “became very argumentative” when Wiley told him “he will receive a point for going home early.”  (Gallgher Decl., Ex. 15, p. SYSCORIV001309.)

Plaintiffs Joseph Williams, Jesus Lopez, Luis Melendez, Herbert Castro, and Jason Carley Munz thus each establish a triable issue of fact on whether they reported violations that constituted protected activity under Labor Code section 1102.5.

 C.       Adverse Employment Action

Each plaintiff also establishes a triable issue of material fact on whether he suffered an adverse employment action.  Defendants argue Williams, Jesus Lopez, and Luis Melendez suffered no adverse employment action because they voluntarily resigned.  Labor Code section 1102.5, subdivision (b) provides that employers “shall not retaliate against an employee,” which does not require termination.  It requires “an adverse employment action.”  (Lawson, supra, 12 Cal.5th at p. 712.) 

Under the analogous provisions of the Fair Employment and Housing Act, an adverse employment action means a change in the “terms, conditions, or privileges of employment” that “must be both substantial and detrimental.” (Gov. Code, § 12940, subd. (a).)  “[T]he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee.  Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable… .”  (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054–1055 (Yanowitz).)

Joseph Williams provides evidence of a series of events that, when taken as a whole, constitute a pattern of behavior that made his job undesirable and difficult.  In June 2017, he complained that his supervisors refused to let him (and Jesus Lopez) take lunch breaks in his preferred location, while allowing others to do so.  (Williams Decl., ¶ 31, Ex. 2, p. SYSCORIV001688.)  He states Sysco undercounted his hours and underpaid him by “say[ing] [he] took a lunch when [he] could not take a lunch,” “changing our time clocks so that we would get paid less,” “subjecting [him] to surveillance,” and “not submitting [his] full hours of pay.”  (Williams Decl., ¶ 14.)  He also states management cut his hours, changed his routes, and subjected him to heightened scrutiny.  (Id., ¶ 16.)  The court cannot conclude that, as a matter of law, these conditions were too minor or trivial to constitute an adverse action.

Jesus Lopez, meanwhile, was suspended from work before he resigned.  (Arian Decl., Ex. J, Jesus Lopez  Depo., vol. 3, 38:1-12.)  Suspension is an adverse action.  (Dudley v. Department of Transp. (2001) 90 Cal.App.4th 255, 264 [“adverse employment action may take the form of discharge from employment, fine, suspension”; Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 604.)  Jesus Lopez also states he “was switched to driving the shuttle,” his “hours were reduced,” “the location of where [he] was driving was reduced,” and he “was followed and put under scrutiny.”  (Jesus Lopez Decl., ¶ 16.)  His supervisor “switched [his] route farther from [his] house to make [his] days longer to drive to and from work.”  (Id., ¶ 21.)  Transfer to a less desirable work location alone is a substantial change in the terms, conditions, or privileges of employment.  (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511, quoting Collins v. State of Ill. (7th Cir. 1987) 830 F.2d 692, 703 [“moving an employee’s office to an undesirable location” can be an adverse action].)

Finally, Luis Melendez was also suspended before he resigned.  (Gallagher Decl., Ex. 9, pp. SYSCORIV000701,704, 806; Melendez Decl., ¶ 10.)  Moreover, though the document bears a handwritten note that “associate resigned prior to term,” Sysco wrote a memorandum to Melendez stating he was terminated on June 14, 2018.  (Gallagher Decl., Ex. 9, p. SYSCORIV000806.) 

D.        Causation

Each plaintiff establishes a triable issue on whether they were subjected to adverse employment actions because they complained about illegal conduct.  A prima facie cause of causation has “minimal requirements.”  (St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 506; accord Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253 [“The burden of establishing a prima facie case of disparate treatment is not onerous”].) 

Defendants argue that plaintiffs each complained too long before any adverse action to permit an inference of causation.  “Notwithstanding the absence of direct evidence of retaliatory animus, close temporal proximity between a plaintiff’s protected activity and the alleged retaliatory conduct against the plaintiff has been found sufficient to support a prima facie case of causation.”  (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 243 (Le Mere).)  “A gap of two years is not sufficient as a matter of law to support an inference of causation.”  (Id. at p. 244.)    

The court rejects this argument for two reasons.  First, defendants measure the timing only between complaints and termination or resignation—without accounting for intermediate adverse employment actions.  Second, though defendants present affirmative evidence that each plaintiff complained at various times, that does not constitute undisputed evidence showing plaintiffs cannot establish this element.  That would require not just evidence of when plaintiffs complained, but also evidence they did not complain at other times closer to any adverse employment actions.  Plaintiffs each testified they complained regularly.  This record would permit a reasonable factfinder to conclude plaintiffs complained habitually, not just at the specific times defendants contend. 

E.        Defendants’ Explanations for Adverse Employment Actions

Defendants do not meet their burden of showing “by clear and convincing evidence, that [they] would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.”  (Lawson, supra, 12 Cal.5th at p. 718.)  “[A]ctive solicitation of negative information” about an employee may “strongly suggest[] the possibility that [the]r employer was engaged in a search for a pretextual basis for discipline, which in turn suggests that the subsequent discipline imposed was for purposes of retaliation.”  (Yanowitz, supra, 36 Cal.4th at p. 1062.) 

Except for Jose Lopez, as discussed above, defendants provide insufficient evidence to meet this burden.  Their evidence amounts to showing that plaintiffs, each of whom worked for defendants for several years, were occasionally disciplined for failing to meet productivity standards or other relatively minor issues.  For example, Munz was disciplined for mocking a supervisor (Arian Decl., Ex. M, Munz Depo., 103:19-105:3 Ex. 9) and smoking at a customer’s site.  (Arian Decl., Ex. M, Munz Depo., 119:22-120:5, Ex. 12.)  Defendants terminated Herbert Castro because he spent 81 minutes not working while clocked in on February 7, 2020.  (UMF Nos. 116-118.)

Jesus Lopez, meanwhile, was suspended after years of employment for what defendants characterize as being caught on video showing he “had barely performed any work during his shift that day.”  (UMF No. 52.)  At his deposition, however, he testified that videos showed him not working from 9:51 to 10:11 p.m. (Arian Decl., Ex. J, Jesus Lopez Depo., vol. 3, 84:16-25, 90:-16-25), 11:43 to 11:53 p.m. (id., 99:4-19, 103:11-25, 105:3-10), and 12:37 to 12:53 a.m. (id., 107:1-108:10).  He also testified he was caught not working for “maybe 12 minutes” at the end of his shift.  (Id., 83:24.) 

When making all reasonable inferences in plaintiffs’ favor, triable issues of material fact preclude summary adjudication.  Under the totality of circumstances in the current record, a jury could find that defendants disciplined plaintiffs for the sort of relatively minor workplace misconduct that is often tolerated.  And a jury could conclude that defendants were motivated to strictly monitor plaintiffs and enforce rules against them because they complained about unlawful practices.  A jury could find that most people subjected to such scrutiny at work would occasionally be caught doing something wrong.  Except for Jose Lopez, none of the plaintiffs was terminated for an egregious fireable offense.   

III.             2nd Cause of Action: Wrongful Constructive Termination

Plaintiff Joseph Williams alleges this cause of action against defendants Sysco Riverside, Inc. and Sysco Corporation.  Defendants primarily repeat the same arguments the court rejected with respect to the first cause of action. 

Defendants also argue the undisputed evidence fails to show conditions amounting to constructive termination.  “To establish constructive discharge, an employee must show that the employee’s working conditions were so intolerable or aggravated that a reasonable employee would be forced to resign and that the employer either created or knowingly permitted those conditions, such that a reasonable employer would realize that a reasonable employee in such circumstances would resign.”  (Brome v. California Highway Patrol (2020) 44 Cal.App.5th 786, 801 (Brome).)  “Each individual incident need not be sufficient standing alone to force a resignation; rather, the accumulation of discriminatory treatment over time can amount to intolerable working conditions.”  (Id. at pp. 801-802.)

There is a triable issue of fact on whether Williams’ working conditions were so intolerable that a reasonable employee would be forced to resign.  On summary judgment, the question is “whether facts in the record could support" a finding of constructive discharge.  (Brome v. California Highway Patrol (2020) 44 Cal.App.5th 786, 803.)  Whether something is reasonable is typically a question of fact.  (See, e.g., Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 193 [reasonability under discovery rule is “properly decided as a matter of law only if the evidence … can support only one reasonable conclusion” [Flintco Pacific, Inc. v. TEC Management Consultants, Inc. (2016) 1 Cal.App.5th 727, 734 [for promissory estoppel, “whether the reliance was reasonable is a question of fact unless reasonable minds could reach only one conclusion based on the evidence, in which case the question is one of law”].)

The evidence is not so clear that it can support only one reasonable conclusion.  A factfinder could conclude that a reasonable employee would find Williams’ working conditions so intolerable he was forced to resign.  The record includes evidence Sysco undercounted his hours and underpaid him by “say[ing] [he] took a lunch when [he] could not take a lunch,” “changing our time clocks so that we would get paid less,” “subjecting [him] to surveillance,” and “not submitting [his] full hours of pay.”  (Williams Decl., ¶ 14.)  Williams states management cut his hours, changed his routes, and subjected him to heightened scrutiny.  (Id., ¶ 16.)  He also states his supervisors “would subject [him] to unrelenting surveillance, watching [him], following [him], hoping they could catch [him] doing something wrong and fire” him.  (Id., ¶ 21.)  When he complained to management about this treatment, “nothing was done.”  (Id., ¶ 31.)   Williams further states his managers refused to permit him to take lunch breaks in his preferred location.  (Id., ¶ 31, Ex. 2, p. SYSCORIV001688.)  He states, “They were making up rules that only applied to me and [Jesus Lopez] so that if we violated them, they could terminate us.”  (Id., ¶ 31.) 

The court cannot conclude that, as a matter of law, these conditions were too minor or trivial to constitute constructive termination.  Plaintiff Joseph Williams establishes a triable issue of material fact.  The facts in the record could support a reasonable factfinder to conclude that Williams faced such intolerable conditions that he was forced to resign. 

IV.             3rd Cause of Action: Negligent Hiring, Supervision, and Retention

All plaintiffs allege this cause of action against defendants Sysco Riverside, Inc. and Sysco Corporation.  Defendants argue plaintiffs cannot establish any negligence caused plaintiffs’ harm because Sysco disciplined them for legitimate reasons. 

As discussed above, Jose Lopez cannot show any negligence caused his harm.  His damages arise from his termination—and the undisputed facts conclusively show defendants terminated him for a legitimate reason. 

As for the remaining five plaintiffs, defendants fail to meet their burden.  As discussed above, though defendants offer evidence they disciplined each plaintiff for legitimate reasons, plaintiffs present sufficient evidence to permit a reasonable factfinder to conclude those reasons were pretextual.

V.                4th Cause of Action: Violation of Civil Code §§ 51 and 52

Defendants are entitled to judgment as a matter of law on this cause of action.  Civil Code section 51, the Unruh Civil Rights Act, prohibits “business establishments that provide a service to their clients … from discriminating in the provision of that service.”  (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 391.)  “[T]he Unruh Civil Rights Act has no application to employment discrimination.”  (Rojo v. Kliger (1990) 52 Cal.3d 65, 77.)

Plaintiffs did not oppose defendants’ motion as to the fourth cause of action.  It is undisputed that plaintiffs were Sysco’s employees—not clients.  The Unruh Civil Rights Act does not apply. 

VI.             5th Cause of Action: Intentional Infliction of Emotional Distress

Defendants are entitled to judgment as a matter of law against all plaintiffs on this cause of action.  Intentional infliction of emotional distress requires: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) 

The undisputed facts show plaintiffs cannot establish the first element of extreme or outrageous conduct.  This “tort does not extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities’.”  (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.)  Plaintiffs must show “outrageous conduct beyond the bounds of human decency.”  (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80 (Janken).)  “Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society.  A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.  If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.”  (Ibid.) 

As the California Supreme Court stated, “In order to properly manage its business, every employer must on occasion review, criticize, demote, transfer and discipline employees.  Employers are necessarily aware that their employees will feel distressed by adverse personnel decisions, while employees may consider any such adverse action to be improper and outrageous.  Indeed, it would be unusual for an employee not to suffer emotional distress as a result of an unfavorable decision by his employer.”  (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 [holding workers’ compensation exclusivity barred tort claim].)

Examples of sufficiently egregious behavior include “repeated threats of physical harm directed to plaintiffs, stated in graphic terms” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 809), threats of violence against plaintiffs and their families (Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222, 229), or a reporter who, while recording an interview with children under 12, told them their friends’ and neighbors’ “mom has killed the two little kids and herself.”  (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1029.)

Defendants meet their initial burden of showing plaintiffs have evidence of no more than mere insults, indignities, and petty oppressions done in the course of personnel management.  Plaintiffs fail to rebut that evidence or show any triable issue of material fact.  Plaintiffs’ voluminous evidence amounts to nothing more than further examples or details of insults and oppression done by their supervisors in the course of their supervision. 

VII.          6th Cause of Action: Physical Disability Discrimination

Plaintiffs Jesus Lopez, Jose Lopez, and Herbert Castro allege disability discrimination against all defendants.  Only Jesus Lopez shows triable issues of fact that preclude summary adjudication. 

A.        Jesus Lopez

For Jesus Lopez, defendants rely on the same arguments as for the first cause of action.  They argue he was terminated for a legitimate reason, and he cannot show it was pretextual.  There is, however, a triable issue of material fact regarding the final event—i.e., the purported last straw—before Sysco suspended Jesus Lopez.  Defendants state they caught him sleeping at work while on the clock.  (UMF Nos. 47-48.)  But Jesus Lopez testified that he took a break to rest because he was suffering from a migraine.  (Jesus Lopez Decl., ¶ 39; Arian Decl., Ex. J, Jesus Lopez Depo., vol. 3, 66:12-25.)  Randy Hoover, the supervisor who states he found Jesus Lopez sleeping, testified, “I believe he made a comment when we were in dispatch when he was leaving that he had a migraine.”  (Gallagher Decl., Ex. 24, Hoover Depo., 267:4-6.)  A reasonable factfinder could conclude Jesus Lopez was taking a break to tend to a migraine, such that a symptom of his disability was a substantial motivating factor for his suspension.   

B.        Jose Lopez

Defendants are entitled to summary adjudication against Jose Lopez for the same reasons discussed above.  The evidence in the record does not permit an inference that the reason for his termination—that he had not worked in three years and did not respond to Sysco’s attempts to communicate—was pretextual.    

C.        Herbert Castro

Herbert Castro presents insufficient evidence to show a prima facie case of disability discrimination.  He provides no evidence that any disability or perceived disability was a substantial motivating factor in his termination.  The only purported disability he had was that he injured his foot in 2015.  (Castro Depo., vol. 2, 123:1-124:25.)  Castro testified that a supervisor mocked him for his injury.  (Ibid.)  He further testified that his superiors “wanted [him] to do some light duty.”  (Id., 124:25.)  Castro’s declaration does not mention any disability whatsoever.  (Castro Decl., ¶¶ 1-10.) 

Sysco, however, terminated Castro in February 2020, almost five years after his injury.  This evidence is analogous to Le Mere, where the court held, “A gap of two years” between a plaintiff’s protected activity and the adverse action “is not sufficient as a matter of law to support an inference of causation.”  (Le Mere, supra, 35 Cal.App.5th at p. 243.)  No reasonable factfinder could conclude that Castro’s disability in 2015 was a substantial motivating factor for his termination in 2020.

VIII.       7th Cause of Action: Age Discrimination

Plaintiffs Jesus Lopez, Jose Lopez, and Herbert Castro allege age discrimination against all defendants.  Under the undisputed facts, defendants are entitled to judgment as a matter of law because none of the plaintiffs make a prima facie case.  “Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.”  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)  For the final element, the circumstances general require that the employer provided better treatment for someone outside the protected class, such as that “the employee was replaced in his position by a significantly younger person.”  (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003; accord Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 142 [federal Age Discrimination in Employment Act].)

Plaintiffs present no evidence, neither direct nor circumstantial, permitting an inference that their age was a substantial motivating factor for the adverse employment actions against them.  They present no admissible evidence of animosity or that defendants gave preferential treatment to younger employees.  They submit no evidence showing defendants replaced them with younger employees after they were terminated or resigned.  Indeed, the six plaintiffs provide evidence of a similar pattern of retaliation against them for complaining about safety violations—even though only two of the six were over 40. 

As for Jose Lopez, not only can he not prove defendants’ reason for terminating him was pretextual, but also, he is under 40 years old.  The only basis for age discrimination against him is that he “is associated with a person” (Gov. Code, § 12926, subd. (o)) over 40: his father, Jesus Lopez.  He was “associated with” his father, who was over 40 years old, during his entire employment.  Jose Lopez has no evidence of any causal link between being Jesus Lopez’s son and being terminated.

IX.             8th Cause of Action: Wrongful Termination in Violation of Public Policy

Jesus Lopez, Luis Melendez, Herbert Castro, and Jason Carley Munz allege this cause of action against Sysco Riverside, Inc. and Sysco Corporation.  Defendants repeat the same arguments as for the first cause of action.  Unlike retaliation under Labor Code sections 1102.5 and 1102.6, defendants do not bear a heightened burden of proving the adverse action would have occurred even if the plaintiffs had not engaged in a protected activity.  Still, plaintiffs present sufficient evidence for a reasonable factfinder to conclude that they were terminated for pretextual reasons.  As discussed above, one could reasonably conclude that defendants found relatively minor reasons to terminate plaintiffs because they actively searched for those reasons. 

X.                Punitive Damages

Defendants fail to show they are entitled to summary adjudication on plaintiffs’ claims for punitive damages.  “[W]illfully and consciously retaliate[ing] against” employees for exercising their rights can constitute malicious or oppressive conduct sufficient for punitive damages.  (Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 455.)

Defendants repeat the same arguments they use for plaintiffs’ causes of action: they cannot be liable for punitive damages because they did not cause any damages to plaintiffs.  They correctly note, however, that plaintiffs bear a higher burden of proof for punitive damages.  On summary adjudication, the plaintiff must present sufficient evidence for a triable issue under “the higher evidentiary standard” of “establishing malice, oppression or fraud by clear and convincing evidence.”  (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.)  Even for this heightened burden, plaintiffs establish triable issues of fact.  A reasonable factfinder could conclude plaintiffs presented clear and convincing evidence that defendants willfully and consciously retaliated against them.   

XI.             Defendant Jon Nelson

In their reply, defendants argue plaintiff’s opposing papers establish Jon Nelson cannot be liable for any of plaintiffs’ causes of action.  In their opposing memorandum, plaintiffs wrote, “Nelson never worked with or supervised the plaintiffs and has no personal knowledge of the events in the case.”  (Opp., p. 12.) 

The court exercises its discretion not to consider this new basis for summary judgment or adjudication.  “[A] trial court hearing a summary judgment motion is only obligated to consider the grounds for summary judgment that are ‘identified in the moving papers.’ ”  (Pereda v. Atos Jiu Jitsu LLC (2022) 85 Cal.App.5th 759, 301 Cal.Rptr.3d 690, 697.)  “A trial court nevertheless has the discretion to consider other grounds for summary judgment if (1) the evidentiary basis for those grounds otherwise appears in the record presented with the moving papers [citations], and (2) doing so does not deny the opposing party due process because that party ‘ “has notice of and an opportunity to respond to those grounds” ’ .”  (Ibid., alterations omitted.)

Plaintiffs allege the fourth through seventh causes of action against all defendants, including Nelson and six other individuals: Randy Hoover, Patti Cheselske, Chris Wiley, Terence Johnson, Teresa Livesay, and Mario Guerrero.  Defendants’ motion makes no arguments particularly about the individual defendants.  The motion groups all defendants together.  Plaintiffs have not had an adequate opportunity to respond to defendants’ argument that Jon Nelson is not liable.

XII.          Evidentiary Objections

Defendants make numerous objections to plaintiffs’ evidence.   The court rules as follows:

XIII.       Disposition

The court grants summary judgment for all defendants as to all causes of action by plaintiff Jose Lopez.

The court grants summary adjudication for all defendants on all plaintiffs’ fourth, fifth, and seventh causes of action. 

The court grants summary adjudication for all defendants on the sixth cause of action by plaintiffs Jose Lopez and Herbert Castro.

The court denies summary adjudication of: (a) the first cause of action by all plaintiffs except Jose Lopez; (b) the second cause of action; (c) the third cause of action by all plaintiffs except Jose Lopez; (d) the sixth cause of action by plaintiff Jesus Lopez; (e) the eighth cause of action; and (e) punitive damages.

The remaining causes of action are:

(1) Labor Code § 1102.5 by Williams, Jesus Lopez, Melendez, Castro, and Munz against Sysco Riverside, Inc. and Sysco Corporation;

(2) Constructive wrongful termination by Williams against Sysco Riverside, Inc. and Sysco Corporation;

(3) Negligent hiring, retention, and supervision by Williams, Jesus Lopez, Melendez, Castro, and Munz against Sysco Riverside, Inc. and Sysco Corporation;

(6) Physical disability discrimination by Jesus Lopez against all defendants; and

(8) Wrongful termination by Jesus Lopez, Melendez, Castro, and Munz against Sysco Riverside, Inc. and Sysco Corporation.

MOTION TO SEVER TRIAL

Defendants move to sever the trial into separate trials for each plaintiff.  When multiple plaintiffs are jointed in one action, “the court may make such orders as may appear just to prevent any party from being embarrassed, delayed, or put to undue expense, and may order separate trials or make such other order as the interests of justice may require.”  (Code Civ. Proc., § 379.5.)  “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action . . . or of any separate issue or of any number of causes of action or issues.”  (Code Civ. Proc., § 1048, subd. (b).)

            The court finds that severing the trial would not serve the interests of justice. Having five trials with five separate juries would substantially undermine judicial efficiency.  The five trials would have a significant amount of overlapping evidence.  Several plaintiffs interacted with the same supervisors.  All plaintiffs will seek to introduce evidence about the same human resources employees and high-ranking employees at Sysco. 

Defendants argue that including evidence about all plaintiffs in the same trial would unduly prejudice them.  Much of the testimony by each plaintiff would be admissible in the other plaintiff’s trials.  As discussed above, this retaliation case relies heavily on circumstantial evidence.  “ ‘As a general rule, the testimony of other employees about their treatment by the defendant is relevant to the issue of the employer’s discriminatory intent.’ ”  (Johnson v. United Cerebral Palsy/Spastic Children's Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 766, alterations omitted.)  The other plaintiffs’ testimony “sets out factual scenarios related by former employees of the defendant that are sufficiently similar to the one presented by [each] plaintiff concerning [his] own discharge by defendant.”  (Id. at p. 767.)  “Dissimilarities between the facts” among the plaintiffs may “go to the weight of the evidence, not its admissibility.”  (Ibid.)

            The court denies defendants’ motion to sever trial.

ORDER TO SHOW CAUSE RE: INDIVIDUAL DEFENDANTS

            After summary adjudication, only one cause of action—the sixth cause of action for disability discrimination by Jesus Lopez—remains against the seven individual defendants: Randy Hoover, Patti Cheselske, Jon Nelson, Chris Wiley, Terence Johnson, Teresa Livesay, and Mario Guerrero.

Though defendants did not move for summary judgment or adjudication on this basis, the court finds it appropriate to set an order to show cause regarding whether the individuals can be liable for this cause of action.  “[I]ndividuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.”  (Reno v. Baird (1998) 18 Cal.4th 640, 663.)  “[O]nly employers—and not individual supervisory employees—are at risk of liability for discrimination.”  (Janken, supra, 46 Cal.App.4th at p. 80.)  Unless plaintiffs can establish grounds for holding the individual defendants liable for discrimination, proceeding to trial against them would greatly undermine judicial economy.

The court hereby sets an order to show cause why the individual defendants may be liable for the sixth cause of action on March 24, 2023, at 9:00 a.m.  Plaintiffs shall file any response to the order to show cause no later than March 13.  Defendants shall file any papers no later than March 17.

                                                            IT IS SO ORDERED

Date:   January 19, 2023

_______________________________________

Armen Tamzarian

JUDGE OF THE SUPERIOR COURT