Judge: Bruce G. Iwasaki, Case: 22STCV32305, Date: 2024-08-29 Tentative Ruling
Case Number: 22STCV32305 Hearing Date: August 29, 2024 Dept: 58
Judge Bruce Iwasaki
Hearing Date: August 29, 2024
Case Name: Medina v. Rojas, Incorporated
dba Lupag Corp.
Case No.: 22STCV32305
Motion: Motion
for Summary Adjudication
Moving
Party: Defendant Rojas
Incorporated dba Lupag Corp.
Responding Party: Plaintiff Gabriela Rueda
Tentative
Ruling: The Motion for Summary
Adjudication is denied.
Plaintiff Gabriela
Rueda Medina (“Plaintiff”) sued her former employer Defendant Rojas
Incorporated dba Lupag Corp (“Defendant”) for various FEHA violations, Intentional
Infliction of Emotional Distress (“IIED”), and wage and hour violations. Defendant moves for summary adjudication on
the FEHA claims and IIED solely on the ground that they within the exclusive
purview of the Workers’ Compensation Appeals Board. (Notice of motion, pp. 2-3)
Because Workers’ Compensation proceedings do not preempt FEHA and related
claims, and there are issues of fact as to Defendant’s justifications, the
motion for summary adjudication is denied.
Background
Plaintiff
Gabriela Rueda Medina (“Plaintiff”) is a former employee of Defendant Rojas
Incorporated dba Lupag Corp (“Defendant”). Plaintiff alleges that she was fired
on February 11, 2022, after sustaining and reporting a work injury. (Compl., ¶¶
8, 12.)
On
October 23, 2022, Plaintiff filed a complaint against Defendant and DOES 1 to
100, alleging causes of action for: (1) Disability Discrimination in Violation
of Fair Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12940(a); (2)
Disability Discrimination in Violation of FEHA – Failure to Engage in the
Interactive Process, Cal. Gov. Code § 12940(n); (3) Failure to Accommodate a
Disability in Violation of FEHA, Cal. Gov. Code § 12940(m); (4) Wrongful
Employment Termination; (5) Retaliation under Gov. Code § 12940(h); (6)
Intentional Infliction of Emotional Distress (“IIED”); (7) Wage Violations
under Lab. Code § 512; (8) Wage Violations under Lab. Code § 510(a); and (9)
Wage Violations under Lab. Code § 200 et seq.
In
the Complaint, Plaintiff allegedly reported severe pain in both of her hands to
the owner of the company, Herberto Rojas, Jr., (“Mr. Rojas”) (Compl., at
¶ 10.) Plaintiff alleges that Mr. Rojas required her to continue working, and
eventually gave her three days off without referring her to the company’s
physician for a medical exam. (Id.) Plaintiff states that on February 2,
2022, as her pain intensified, rendering her unable to dress herself, she
visited her personal physician. (Id. at ¶ 11.) According to Plaintiff’s
physician, the pain was “caused by the repetitive work she was performing for
Defendant.” (Id.) On the same
day, Plaintiff gave her doctor’s note to Defendant’ secretary, Vanessa Rodriguez
(“Ms. Rodriguez”). (Id.) On
February 11, 2022, Plaintiff was terminated. (Id. at 12.)
On June 5, 2024,
Plaintiff filed the instant motion for summary adjudication (the “Motion”),
concurrently with a proposed order, separate statement of undisputed material
facts, the declaration of Mr. Rojas (“Rojas Decl.”), the declaration of Laura
Each (“Each Decl.”), and compendium of exhibits.
On August 15, 2024,
Plaintiff filed an opposition to the instant motion, concurrently with a
separate statement, compendium of evidence, declaration of Maribel B. Ullrich
(“Ullrich Decl.”), and compendium of exhibits.
On August 21, 2024,
Defendant filed a reply, concurrently with a response to Plaintiff’s separate
statement, and evidentiary objections.
Evidentiary Objections
Defendant’s Objections to
Plaintiff’s Evidence:
Sustained:
6 and 22
Overruled:
1-5, 7-21, 23-51
Legal Standard
A party may move for summary
judgment “if it is contended that the action has no merit or that there is no defense
to the action or proceeding.” (Code Civ. Proc., § 437c,¿subd. (a).)
“[I]f all the evidence submitted, and all inferences reasonably deducible from
the evidence and uncontradicted by other inferences or evidence, show that
there is no triable issue as to any material fact and that the moving party is
entitled to judgment as a matter of law,” the moving party will be entitled to
summary judgment. (Adler v. Manor Healthcare Corp.¿(1992) 7
Cal.App.4th 1110, 1119.)
The moving party has the initial
burden of production to make¿a prima facie¿showing of the nonexistence of any
triable issue of material fact, and if he does so, the burden shifts to the
opposing party to make¿a prima facie¿showing of the existence of a triable
issue of material fact. (Aguilar v. Atlantic Richfield Co.¿(2001)
25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c,¿subd. (p)(2).) A Defendant
moving for summary judgment may meet its initial burden by proving that for
each cause of action alleged, plaintiff cannot establish at least one element
of the cause of action. (Code Civ. Proc., § 437c(p)(2).)
“The summary judgment
procedure should be used with caution and any doubt as to the propriety of
granting summary judgment should be resolved in favor of the party opposing the
motion.” (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505,
1510.) “Motions for summary adjudication are procedurally identical to motions
for summary judgment.” (Dunn v. County of Santa Barbara (2006) 135
Cal.App.4th 1281, 1290.)
Analysis
Defendant moves for summary adjudication on each of the FEHA and IIED
causes of action on the same ground: Plaintiff’s
“claims are within the exclusive purview of and are pending before the workers’
compensation appeals board.”
Plaintiff
opposes the Motion, contending that triable factual disputes remain, requiring
the motion for summary adjudication to be denied. Plaintiff argues that
Defendant has failed to shift the burden to Plaintiff because Defendant has not
offered evidence to show that Plaintiff’s termination was legitimate. Plaintiff
contends that workers’ compensation is not her exclusive remedy and there are
triable issues of fact whether Plaintiff’s termination was for a lawful
purpose.
Workers’ compensation
exclusivity does not bar Plaintiff’s FEHA or IIED Claims
Defendant argues
it is entitled to summary adjudication on the first, second, third, fourth, fifth,
and sixth causes of action as a matter of law because worker’s compensation
exclusivity bars Plaintiff’s common law claims.
The Workers
Compensation Act (“WCA”) governs compensation to employees for injuries
incurred in the course and scope of their employment. (See Cal. Const., art.
XIV, § 4; Cal. Labor Code, § 3201; Charles J. Vacanti, M.D., Inc. v. State
Compensation Insurance Fund (2001) 24 Cal.4th 800, 810.) Compensation under
the WCA is an employee’s exclusive remedy against an employer for injuries
sustained out of and in the course of employment. (See Cal. Labor Code, §§
3600(a), 3602(a).) Whether exclusivity bars a cause of action against an
employer depends on whether the alleged injury falls within the scope of the
exclusive remedy provisions. (See Charles J. Vacanti, M.D., Inc., supra,
24 Cal.4th at 811.) The exclusive remedy provisions apply only in cases of
industrial personal injury or death. (Shoemaker v. Myers (1990) 52
Cal.3d 1, 16.) The exclusive remedy provisions do not apply where the dual
capacity doctrine applies. The dual capacity doctrine applies where the injury
stems from an employer-employee relationship that is distinct and invokes a
different set of obligations than the employer’s usual duties to its employee.
(See Id.; Cole v. Fair Oaks Fire Protection District (1987) 43
Cal.3d 148, 161-62.) Causes of action predicated upon an injury that is
collateral to or derivative of an injury compensable by the exclusive remedies
of the WCA may be subject to the exclusivity bar. (Id.) “While common
law tort claims are generally preempted [citation], claims for separate
injuries under distinct statutory schemes are not.” (Veguez v. Governing
Board of Long Beach Unified School District (2005) 127 Cal.App.4th 406,
418.)
“Even where an
injury is otherwise compensable under the workers’ compensation system, a cause
of action seeking damages based on the injury may nevertheless be allowable
where the employer’s conduct falls outside the compensation bargain: ‘if the
alleged injury falls within the scope of the exclusive remedy provisions, then
courts consider whether the alleged acts or motives that establish the elements
of the cause of action fall outside the risks encompassed within the
compensation bargain.’” (Light v. Department of Parks & Recreation
(2017) 14 Cal.App.5th 75, 96 (Light).) Thus, “unlawful
discrimination and retaliation in violation of FEHA falls outside the
compensation bargain and therefore claims of intentional infliction of
emotional distress based on such discrimination and retaliation are not subject
to workers’ compensation exclusivity.” (Id. at p. 101.)
Disability
discrimination is not subject to workers’ compensation exclusivity.
Disability discrimination is not preempted
by workers’ compensation law. (City of Moorpark v. Superior Court.
(1998) 18 Cal. 4th 1143, 1154; Meninga v Raley’s Inc. (1989) 216
Cal.App.3d 79, 91; Fretland v. County of Humboldt (1999) 69 Cal.App.4th
1478, 1484-1485). Defendant ignores these precedents. These cases defeat its
motion.
In City of Moorpark, the plaintiff
alleged “causes of action for discrimination in violation of the FEHA, wrongful
termination in violation of public policy (common law wrongful discharge),
breach of contract, and intentional and/or negligent infliction of emotional
distress.” (City of Moorpark, supra, 18 Cal.4th at p. 1149.) The
defendants demurred, arguing in part that, because the plaintiff’s disability
was work related, “section 132a provided her exclusive remedy.” (Id.)
The trial court disagreed and overruled the demurrers to the FEHA and common
law wrongful discharge causes of action. The Supreme Court affirmed.
In City of Moorpark. Our Supreme
Court explained that “the existence of a workers’ compensation remedy does not
by itself establish that the remedy is exclusive. Rather, the scope of workers’
compensation exclusivity depends on the terms of the exclusive remedy
provisions.” (Id., at 1154.) As a result, City of Moorpark
concluded that “section 132a does not provide an exclusive remedy and does not
preclude an employee from pursuing FEHA and common law wrongful discharge
remedies.” (Id., at 1158.) Here,
of course, the statutory claims that are the subject of this motion are, as in Moorpark,
claims of disability discrimination.
In Meninga, the plaintiff
“unquestionably received workers' compensation benefits due solely to emotional
injury resulting from the discriminatory treatment she alleges,” but later
asserted FEHA claims against the defendant. (Meninga, supra, 216
Cal. App. 3d 79.) The defendant argued that the plaintiff’s FEHA claims
are barred because “workers’ compensation provides the exclusive remedy.”
(Id. at p. 89.) The Meninga court acknowledged that “at
first glance “defendants’ argument has some appeal given the exclusive remedy
language of¿Labor Code sections 3601, subdivision (a), and 3602, subdivision. However,
the court rejected that argument, reasoning “[t]his approach would not only
render the FEHA cause of action for employment discrimination a non sequitur
where disability resulted; it would also make a hollow promise out of the
public policy, stated in FEHA, of eliminating employment discrimination.” (Ibid.)
In Fretland, the plaintiff sued for
wrongful termination. (Fretland, supra, 69 Cal.App.4th at 1482.) Plaintiff
raised a FEHA claim based on disability discrimination. Defendants argued that
plaintiff’s recovery was solely and exclusively limited to workers’
compensation. (Id. at 1484.) Citing City of Moorpark, the Court
of Appeal held that work-related injury discrimination is not a normal risk of
the compensation bargain and found that the trial court erred in finding that
plaintiff’s FEHA claim was barred by the exclusive remedy provisions of the
workers’ compensation laws. (Id. at pp. 1484, 1492.)
In the instant case, Plaintiff alleges
FEHA claims based on Defendant’s discrimination, retaliation, and failure to
accommodate based on her disability. Her claims seek to remedy Defendant’s discriminatory employment
practices. As the Moorpark and Meninga decisions explained, given
the public policy reasons behind the adoption of FEHA – the protection of civil
rights and elimination of discriminatory practices – the remedies of FEHA are
meant to supplement the workers’ compensation scheme. Since a “workers’
compensation claim cannot address her employer’s liability for employment
discrimination,” the Plaintiff’s pending claim of worker’s compensation
benefits does not bar her FEHA claims.
1.
FEHA Disability Discrimination Claim [Issue
No.1, 1st COA]
A prima facie case
for disability discrimination requires a plaintiff to show (1) she suffered
from a known disability, (2) she was qualified to perform the essential
functions of the job, (3) she suffered an adverse employment action, and (4)
some other circumstance suggests discriminatory motive. (Avila v.
Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246; Guz v.
Bechtel National Inc. (2000) 24 Cal.4th 317, 355.)
First, Defendant
argues that the evidence shows that Plaintiff was terminated because production of the salted plums Plaintiff
packaged posed a totally ceased due to a reported risk of lead contamination,
leaving Plaintiff with no work. (Id.,
at p. 11:16-21.) Defendant argues that there is no evidence that
shows that Plaintiff’s termination was improperly motivated. (Id., at p.
12:11.)
Plaintiff maintains she was discriminated
against due to her diagnosed carpal tunnel syndrome. (Opposition at p. 1:4-7.) Plaintiff
alleges that her work required her to operate the machine with both hands, and when
began to feel pain in December 2021 that interfered with her dressing herself, she
reported the pain to Mr. Rojas. (Id. at p. 2:16-19.) Plaintiff avers
that Mr. Rojas ignored her reported pain, and told her to continue working, and
work faster. (Id., at p. 2:19-20.) Plaintiff alleges that upon being
evaluated for the pain she felt in both hands, she asked Mr. Rojas to change
her responsibilities to pack products other than the salted plums, which did
not require machine operation using both hands. (Id. at p., 2:22-25.)
Mr. Rojas allegedly
fulfilled her request for three days and then had her return to the same
machine. (Id., at p. 2:25-26.) Plaintiff contends that Mr. Rojas kept notes
indicating that Plaintiff delivered x-ray report screenshots to Defendant’s
secretary, Ms. Rodriguez, that have been deleted since Plaintiff’s termination.
(Id. at pp. 2:27-28, 3:1.) Following a medical appointment on February
3, 2022, Plaintiff brought a doctor’s note confirming her diagnosis to Ms.
Rodriguez, who allegedly shared personal anecdotes of carpal tunnel syndrome,
and placed the letter on Mr. Rojas’ desk. (Id. at p. 3:1-7.) On February
11, 2022, Ms. Rodriguez terminated Plaintiff. (Id.) Plaintiff contends in her complaint, in
part, that she “was terminated shortly after notifying Defendant of her
disability” (Id, 6:4-5, ¶ 16.) Plaintiff likewise argues that “there was
gossip at Defendant’s that she was fired because of her hand injury. (Id.,
3:8-10.)
Plaintiff has presented evidence to show
that a triable issue of material facts exists as to these issues. While
Defendant argues that Plaintiff was terminated for a legitimate purpose arising
from a product-line recall, the evidence presented appears to
show that her employment was terminated for other reasons. Defendant states that
“there is a dispute regarding whether [Plaintiff] actually reported anything to
[Defendant].” (Motion, at p. 9:25-27.) The evidence is unclear as to whether
Mr. Rojas received Plaintiff’s doctor note, since Plaintiff only claims that “After
their conversation, [Ms. Rodriguez] put the envelope from Plaintiff on Mr.
Rojas’ desk.” (Opposition, at p. 3:8-9.) Plaintiff argues that she had a
reasonable belief that a lack of work was a pretextual reason because “there
was always plenty of work to do”, and Plaintiff’s co-workers suffered similar
injuries to Plaintiffs, but did not proceed with filing workers’ compensation
claims due to an inferred fear of termination upon reporting injuries.
(Opposition, at p. 4:5-16.)
The motion for
summary adjudication as to Issue No. 1 is denied.
2.
FEHA Disability Discrimination, Failure to
Engage in the Interactive Process & Failure to Accommodate Disability
[Issue Nos. 2, 3, & 2nd, 3rd COAs]
Government Code
section 12940(n) provides that it is an unlawful employment practice “[f]or an
employer . . . to fail to engage in a timely, good faith, interactive process
with the employee or applicant to determine effective reasonable
accommodations, if any, in response to a request for reasonable accommodation
by an employee or applicant with a known physical or mental disability or known
medical condition.” (Govt. Code, § 12940(n).)
To establish a
claim for Failure to Engage in the Interactive Process, a plaintiff must show
that the employer (1) failed to engage in a good faith interactive process to
determine effective reasonable accommodations, if any, (2) “in response to a
request for reasonable accommodation by an employee” (3) “with a known physical
or mental disability.” (Raine v. City of Burbank (2006) 135 Cal.App.4th
1215, 1222; Gov’t Code 12940(n).)
Government Code
section 12940(m) provides that it is an unlawful employment practice “[f]or an
employer . . . to fail to make reasonable accommodation for the known physical
or mental disability of an applicant or employee.” (Govt. Code, § 12940(m)(1).) “Under the FEHA, a disabled employee is
entitled to a reasonable accommodation—which may include leave of no
statutorily fixed duration—provided that such accommodation does not impose an
undue hardship on the employer.” (Sanchez
v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1338.) “Holding a job open for a disabled employee
who needs time to recuperate or heal is in itself a form of reasonable
accommodation and may be all that is required where it appears likely that the
employee will be able to return to an existing position at some time in the
foreseeable future.” (Jensen v. Wells
Fargo Bank (2000) 85 Cal.App.4th 245, 263.)
Plaintiff alleges
that Defendant failed to engage in the interactive process because rather than
being taken to the company’s doctor upon reporting her work injury, she was
placed back to work regular duties with severe pain. (Compl. 7:8-10, ¶ 23.) Plaintiff
claims that she had a qualified disability that Defendant knew of, and
Defendant failed to engage in any interactive process. (Id. ¶ 26.)
Plaintiff further alleges Defendant failed to accommodate her disability, that she
provided Ms. Rodriguez with the doctor’s note expecting Defendant to engage in
discussions for possible accommodations. (Id. ¶¶ 32, 24.)
As with the first
cause of action, Defendant argues
that Plaintiff’s employment as a packer was terminated because there was no
longer any work for Plaintiff due to an unexpected recall and discontinuance of
the salted plum products that Plaintiff primarily packaged. (Motion, p.
11:20-23.) Defendant claims that a claim for discrimination under California
Labor Code Section 132a “simply does not fit” because a notice from California
Department of Food and Health requiring a recall on salted plums because of
potential lead contamination preceded Plaintiff’s delivery of the doctor’s note
by one day. (Id, at p. 11:1:3,
17-19.)
Plaintiff has presented evidence that
Defendant failed to engage in a good faith interactive process prior to her
termination and evidence that Plaintiff requested reasonable accommodations
that were denied by a temporary change in work duties and termination.
Disability discrimination is not preempted by workers’ compensation law.
(City of Moorpark, supra, Cal. 4th 1143, at page 1154; Meninga
v Raley’s Inc. (1989) 216 Cal.App.3d 79, 91; Fretland v. County of
Humboldt (1999) 69 Cal.App.4th 1478, 1484-1485).
The crux of Defendant’s arguments to bar
Plaintiff’s disability discrimination claims are that Plaintiff’s recovery is
limited to workers’ compensation law remedies. But California courts have held that a WCAB
petition does not have a preclusive effect on a plaintiff’s claims of
disability discrimination, failure to provide reasonable accommodation, and
failure to engage in an interactive process, where the implicated issues before
the WCAB were not identical to the plaintiff’s FEHA discrimination claims. (Kaur
v. Foster Poultry Farms LLC, (2022) 83 Cal. App. 5th 320, 351.)
The motion for summary adjudication of
Issues Nos. 2 and 3 is denied.
3.
Wrongful Termination & Retaliation [Issue
Nos. 4, 5 & 4th, 5th COAs]
The elements of a
claim for wrongful discharge in violation of public policy require the
plaintiff to establish that the termination was substantially motivated by a
violation of public policy. (Yau v. Allen (2014) 229 Cal.App.4th 144,
154.)
As the Supreme Court explained in Guz
v. Bechtel, “‘legitimate’ reasons [citation] … are reasons that are facially
unrelated to prohibited bias, and which, if true, would thus preclude a
finding of discrimination. (See Guz v. Bechtel Nat. Inc. (2000)
24 Cal.4th 317, 358 (italics in original and footnote omitted).) One such
example is unsatisfactory performance. (See, e.g., Trop v. Sony
Pictures Entm’t. Inc. (2005) 129 Cal.App.4th 1133, 1149 [pregnant woman
terminated due to poor job performance].) “While the objective soundness
of an employer’s proffered reasons supports their credibility . . . the
ultimate issue is simply whether the employer acted with a motive to
discriminate illegally.” (Guz, supra, 24 Cal.4th at 358
(italics in original).) The employer’s “reasons need not necessarily have
been wise or correct.” (Id.) In other words, as long as the
employer honestly believed in the facially unrelated reason, it is irrelevant
whether the employer’s reason is trivial (see Slatkin v. Univ. of Redlands
(2001) 88 Cal.App.4th 1147, 1157 [professor’s tenure denied based on “academic
politics”]), or even completely untrue (King v. United Parcel Service, Inc.
(2007) 152 Cal.App.4th 426, 433 [driver accused of falsifying timecard]).
If the employer
meets its burden, the burden then shifts to the employee to show that the
defendant’s legitimate reason is merely pretext. (See Guz v. Bechtel Nat.
Inc., supra, 24 Cal.4th at 356.) “Pretext may be inferred from the timing
of the discharge decision, the identity of the decision-maker, or by the
discharged employee's job performance before termination.” (Hanson v. Lucky
Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be
demonstrated by showing that the proffered reason had no basis in fact, the
proffered reason did not actually motivate the discharge, or the proffered
reason was insufficient to motivate discharge.” (Id.)
To establish a
prima facie case of FEHA retaliation, a plaintiff must show (1) they were
engaged in protected activity, (2) they were qualified for their position or
were performing competently in the position they held, (3) they suffered an
adverse employment action, and (4) some other circumstance that suggests a
retaliatory motive connecting the protected activity with the adverse action. (Guz,
supra, at 355.) Under Cal. Gov. Code § 12940, protected activity
includes a request for a reasonable accommodation, but there must have been for
a bona-fide “reasonable accommodation for the known physical or mental
disability of an applicant or employee.” (See Cal. Gov. Code §
12940(m)(1).)
Subject to exceptions, workers’
compensation is the¿only¿remedy¿available to injured employees¿and their
dependents¿against the employer or against any fellow employee responsible for
injuries “arising out of and in the course of employment.” (Lab. Code §§
3600-3602, 5300; see¿Shoemaker, supra, 52 Cal.3d at page
18.) There are some situations in which the injured employee may maintain
a civil action against his or her employer. These include statutory
exceptions such as: 1) physical assault by the employer; 2) aggravation of
injury by the employer’s fraudulent concealment; 3) products liability cases,
4) power press guards; and 5) the employer is uninsured. (See Lab.
Code §§ 3602, 3706, 4553.)
Defendant argues that it had no basis to
discriminate or retaliate against Plaintiff because Plaintiff was terminated prior
to filing her WCAB claim. (Motion, p. 10:8-10.) Citing Shoemaker,
Defendant contends that the evidence presented as to Plaintiff’s termination
does not correlate to any exceptions that would allow the claims to escape the
exclusive jurisdiction of the WCAB. (Id., p. 10:5-6.)
Defendant argues that Plaintiff’s
employment as a packer was terminated because there was no longer any work for
Plaintiff due to an unexpected recall and discontinuance of the salted plum
products that Plaintiff primarily packaged. (Motion, p. 11:20-23.)
Particularly, Defendant argues that on February 2, 2022, it received a notice
from the California Department of Food and Health mandating a recall on salted
plums because of potential lead contamination. (Id. 11:17-19.) The next
day, on February 3, 2022, Plaintiff allegedly provided a note to Defendant’s
secretary regarding hand injuries. (Id. 11:12-16; UMF 10, 40,
70.) Defendant argues that it lacked an improper motivation to terminate
Plaintiff because Plaintiff filed her WCAB claim, claiming she was unable to
work, twelve days after her termination. (Id. p. 10: 27-28.)
Plaintiff argues
that Defendant failed to shift its burden to Plaintiff because Defendant had
failed to offer evidence of actual loss of income following the recall, nor has
Defendant offered evidence that Plaintiff could have remained employed with
Defendant with some accommodation.
(Opposition, p. 8:1-5.) Plaintiff distinguishes Shoemaker on the
grounds that disability discrimination by an employer falls outside the
compensation bargain that limits the jurisdiction of workers’ compensation
claims. (Id., p. 9:5-15.) Plaintiff raises triable issues of fact as to
(1) Defendant’s lack of evidence to justify that her termination following the
mandated product recall was necessary, (2) whether Defendant had knowledge of
Plaintiff’s injuries and diagnosis, (3) whether the recall was the reason for
Plaintiff’s termination, and (4) the inference created by Plaintiff’s
termination following reporting her injuries. (Opposition, pp. 11:7-26, 12, 13.)
The Court denied
Plaintiff’s motion to compel further production of financial documents. (August
15, 2024, Notice of Ruling.) Plaintiff argues that the termination due to the
product recall was pretextual because she occasionally worked on different
products, and Defendant continued to package and distribute the salted plums
after the recall – even instructing employees to conceal facts of this from the
California Department of Public Health. (Opposition, p. 12:8-12.) Based on
Plaintiff’s claims of Defendant’s “history of terminating injured employees and
intimidating them into continuing to work based on the threat of termination,” the
trier of fact could find that Plaintiff’s termination was wrongful.
(Opposition, p. 13:8-10.)
Plaintiff has met
her burden to create a triable issue of fact as to the reason for her
termination, and retaliation. Defendant’s motion for summary adjudication as to
Issue Nos. 4 and 5 is denied.
4.
Intentional
Infliction of Emotional Distress [Issue No. 6, 6th COA]
Defendant argues
Plaintiff cannot establish her IIED cause of action because Plaintiff’s factual
allegations are based on conduct at the worksite within the employer-employee
relationship and therefore, the cause of action is preempted by workers’
compensation exclusivity [Issue No. 6]. (Motion, pp. 12-13.)
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 suffered severe
emotional distress; and (3) the defendant's extreme and outrageous conduct was
the actual and proximate cause of the severe emotional distress.” (Crouch
v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995,
1007.) “Moreover, to support the cause of action, ‘[i]t is not enough
that the conduct be intentional and outrageous. It must be conducted directed
at the plaintiff, or occur in the presence of a plaintiff of whom the
defendant is aware.’ [Citation.] ‘The requirement that the defendant’s conduct
be directed primarily at the plaintiff is a factor which distinguishes
intentional infliction of emotional distress from the negligent infliction of
such injury.’ ” (Ess v. Eskaton Properties (2002) 97 Cal.App.4th
120, 130.)
Defendant offers no evidence that
Plaintiff did not suffer emotional distress based on Defendant’s extreme and
outrageous conduct. As with the FEHA claims, Defendant’s argument rests
entirely on Workers’ Compensation exclusivity.
Workers’ Compensation
is ordinarily the exclusive remedy for conduct occurring within the “normal
course of the employer-employee relationship,” such that “ ‘an employee’s
emotional distress injuries are subsumed under the exclusive remedy provisions
of workers’ compensation.’ ” (See Miklosy v. Regents of Univ. of Cal.
(2008) 44 Cal.4th 876, 902, quoting Livitsanos v. Superior Court (1992)
2 Cal.4th 744, 754.) However, it is also well-established “[n]either
discrimination nor harassment is a normal incident of employment,” and causes
of action for emotional distress predicated on such conduct are not barred by
the Workers’ Compensation Act. (See Nazir v. United Airlines, Inc.
(2009) 178 Cal.App.4th 243, 288 (“Neither discrimination nor harassment is a
normal incident of employment.”).)
Plaintiff alleged
in the sixth cause of action that Defendant’s “conduct of not providing
Plaintiff with a doctor for her work injury, of placing her back to continue to
work regular duties without having a doctor evaluate and treat Plaintiff injury
and firing her because she sustained and reported a work injury is extreme and
outrageous.” (Compl., ¶ 59.) Plaintiff further alleged she suffered severe
emotional distress due to Defendant’s action of wrongfully discharging
Plaintiff due to Plaintiff’s disability. (Id.)
Defendant argues that the
workers’ compensation exclusivity rule bars the IIED claim. Defendant cites Yau
v. Santa Margarita Ford, Inc. (2014) 229 Cal. App. 4th 144, 162-163,
for the proposition that IIED claims fall within the scope of the workers’
compensation exclusivity provisions.
Yau concerns a former
employee’s IIED claim against co-workers and supervisors for allegedly ordering
him to sign fictitious vehicle warranty repair orders and terminating him by accusing
him of stealing from the dealership and having six uniformed sheriffs escort
him from the property. (Yau, supra, 229 Cal. App. 4th at pp. 150-151.)
The court of appeal affirmed the trial court’s sustaining of a demurrer as to
the IIED claim. It concluded that “emotional
injuries sustained in the course of employment are preempted by the workers’
compensation scheme and generally will not support an independent cause of
action.” (Id. at p. 161.) It
found that “ ‘An employer’s intentional misconduct in connection with actions
that are a normal part of the employment relationship … resulting in emotional
injury is considered to be encompassed within the compensation bargain, even if
the misconduct could be characterized as “manifestly unfair, outrageous,
harassment, or intended to cause emotional disturbance.” ’ ” (Id. at p.
162.)
But “Yau did not squarely
consider a claim for intentional infliction of emotional distress based on FEHA
retaliation or discrimination,” and accordingly with respect to a case such as
this one which does involve such claims, “is of less persuasive value.” (Light v. Department of Parks &
Recreation (2017) 14 Cal.App.5th 75, 100, fn. 9.) In Light, the Court of Appeal stated that “[a] number of California
authorities have concluded claims for intentional infliction of emotional
distress in the employment context may be asserted where the actionable conduct
also forms the basis for a FEHA violation.” (Id. at p. 97.) The court concluded
that IIED claims based on FEHA violations are not within the exclusive purview
of the WCAB: “[W]e are unwilling to
abandon the longstanding view that unlawful discrimination and retaliation in
violation of FEHA falls outside the compensation bargain and therefore claims
of intentional infliction of emotional distress based on such discrimination
and retaliation are not subject to workers’ compensation exclusivity.” (Id.
at p. 101.) Defendant, while relying on Yau,
fails even to discuss Light, and its disagreement with Yau. The “longstanding
view” described in Light defeats Defendant’s motion to summarily
adjudicate the Sixth Cause of Action. The
motion for summary adjudication as to the IIED claim is denied.
Conclusion
Defendant’s
motion for summary adjudication is denied.