Judge: Daniel S. Murphy, Case: 20STCV14662, Date: 2022-09-16 Tentative Ruling

Case Number: 20STCV14662    Hearing Date: September 16, 2022    Dept: 32

BACKGROUND

            On April 15, 2020, Melissa Mandell-Brown (“Plaintiff”) filed this action against Novo Nordisk, Inc. and one of its managers, Zamaneh Zamanian (collectively “Defendants”), alleging breach of contract, violations of FEHA and CFRA, unfair business practices, fraud, and Labor Code violations.

            Plaintiff began working for Defendants in 2013. Plaintiff alleges that women in the workplace were objectified in order to promote sales and forced into quid pro quo relationships with managers. Plaintiff complained about this and was allegedly subjected to retaliation by Defendant Zamanian. Plaintiff also alleges that Defendants discriminated against her because she was Jewish. Plaintiff additionally suffered from spine and hip defects which Defendants allegedly failed to accommodate while also denying Plaintiff medical leave benefits. Afterwards, Defendants eliminated Plaintiff’s position in 2018 and never offered Plaintiff another position.

            On May 18, 2022, Defendants filed the instant motion for summary judgment or adjudication. Plaintiff has not filed an opposition.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) “requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 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.)

DISCUSSION

I. FEHA Discrimination

Government Code section 12940, subdivision (a) prohibits an employer from discriminating against an employee based on a protected characteristic. In order to establish a claim of discrimination, Plaintiffs must prove: (1) they are in a protected class; (2) an adverse employment action was taken against them; (3) at the time of the adverse action they were satisfactorily performing their jobs; and (4) some other circumstance suggesting discriminatory motive. (Guz v. Bechtel (2000) 24 Cal. 4th 317, 355.)

Where a plaintiff seeks to establish discrimination through circumstantial evidence, the following framework applies: (1) the plaintiff must initially establish a prima facie case of discrimination, (2) the defendant must then articulate a legitimate nonretaliatory explanation for its acts, and (3) in response, the plaintiff must show that this explanation is pretextual. (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.) Therefore, on summary judgment, the defendant employer must either (1) undermine an element of the plaintiff’s prima facie case or (2) provide a legitimate nonretaliatory reason for the adverse employment action. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926.)

            Here, Defendants present evidence that Plaintiff’s position was eliminated as part of a companywide reorganization spurred by financial difficulties. Hundreds of sales employees were displaced, including Plaintiff. (UF 34, 37, 44.) The letter sent to Plaintiff encouraged her to apply for other positions and notified Plaintiff that she would alternatively be eligible for severance benefits. (UF 44.) Plaintiff did not qualify for the vacant positions that she applied for because she received an overall “off-track” performance rating on her last performance evaluation in 2017. (UF 38-39.) This undisputed evidence satisfies Defendants’ burden of demonstrating that Plaintiff’s termination was based on legitimate business reasons rather than discrimination.

In the face of a nondiscriminatory reason, the plaintiff must offer “substantial evidence” allowing a reasonable conclusion that “the employer engaged in intentional discrimination.” (Foroudi v. The Aerospace Corp. (2020) 57 Cal.App.5th 992, 1007.) “The employee’s evidence must relate to the motivation of the decision makers and prove, by nonspeculative evidence, ‘an actual causal link between prohibited motivation and termination.’” (Id. at p. 1008, citing Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159.) A bad reason alone does not raise an inference of discrimination, because the question is not whether Defendant made a prudent business decision, but whether it made an unlawful one. (See Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 155.)

Here, Plaintiff’s speculation that her disagreements with HR “might have had something to do with” her termination (UF 68) or that “the company didn’t want to keep paying for [her] medical bills” (UF 70) does not amount to the substantially responsive evidence necessary to raise a triable issue. Without an opposition, Defendants’ proffered justification remains unrebutted. Therefore, summary adjudication is warranted on the discrimination claim.

II. Retaliation Under FEHA and CFRA

FEHA makes it unlawful for an employer to retaliate against an employee who opposes harassment or discrimination. (Gov. Code, § 12940, subd. (h).) To establish a prima facie case of retaliation under the FEHA, a plaintiff must show that he: (1) engaged in a protected activity; (2) the employer subjected him to an adverse employment action, and (3) a causal link exists between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

The California Family Rights Act (“CFRA”) makes it unlawful for certain employers to “refuse to grant a request by an employee” for family care and medical leave, to “interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right” provided by the CFRA, and to discriminate against an employee because they exercised their rights under the CFRA. (Gov. Code, § 12945.2, subd. (a), (k), (q).) Retaliation under CFRA follows a similar framework to FEHA. (See Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 248.)

            As discussed above, Defendants have undisputed evidence that Plaintiff’s termination was based on legitimate business reasons rather than any improper motive. There is no evidence that Plaintiff’s termination was caused by her protected activity. Plaintiff testified that she did not know who made the decision to terminate her, and Defendant Zamanian was not involved in the hiring process after the reorganization. (UF 57, 69.) In other words, there is no evidence that the decisionmakers behind Plaintiff’s termination were aware of Plaintiff’s protected activity, which undermines the causation element. (See Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 73.) Accordingly, no reasonable jury could find that Defendants harbored bias against Plaintiff based on her protected activity. Thus, summary adjudication is warranted as to the retaliation claims under FEHA and CFRA.

III. Retaliation Under Labor Code Section 1102.5

Labor Code section 1102.5, subdivision (b) makes it unlawful for an employer to retaliate against an employee for reporting a perceived violation of a local, state, or federal statute or regulation. “[O]nce 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.” (Id., § 1102.6.) As the California Supreme Court recently clarified, the traditional McDonnell-Douglas framework does not apply, and the plaintiff is not required to rebut with evidence of pretext. (Lawson v. PPG Architectural Finishes, Inc. (Jan. 27, 2022, No. S266001) [2022 Cal. LEXIS 312, at *18].)

As discussed above, the undisputed evidence establishes a lack of causation between Plaintiff’s reporting and her subsequent termination. Without an opposition, Plaintiff concedes this point and fails to present any evidence to raise an inference that her termination was motivated by her protected activity. Therefore, summary adjudication is warranted on the Labor Code retaliation claim.

IV. CFRA Interference

The undisputed evidence shows that Defendants ensured Plaintiff received her disability benefits, accommodated Plaintiff’s request for a different vehicle, and granted and extended Plaintiff’s medical leave. (UF 7-11, 22-33.) The cancellation of Plaintiff’s position as part of Defendants’ reorganization does not constitute a CFRA violation. (See Tomlinson v. Qualcomm, Inc. (2002) 97 Cal.App.4th 934, 940 [“the guarantee of reinstatement to the same or comparable position does not preclude an employer from terminating the employee's employment as part of a work force reduction”].) Plaintiff presents no opposing evidence to raise a triable issue. Therefore, summary adjudication is warranted on the CFRA interference claim.

V. FEHA Interactive Process and Accommodation

            Government Code section 12940, subdivision (m)(1) makes it unlawful “[f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” Government Code section 12940, subdivision (n) makes it unlawful for “[f]or an employer or other entity covered by this part 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.”

The undisputed evidence shows that Defendants ensured Plaintiff received her disability benefits, accommodated Plaintiff’s request for a different vehicle, and granted and extended Plaintiff’s medical leave. (UF 7-11, 22-33.) There is no evidence of any further disabilities of which Defendants were notified and failed to accommodate, and Plaintiff does not dispute that Defendants adequately engaged with and accommodated her by doing the above. As such, summary adjudication is warranted on the interactive process and accommodation claims.

VI. Wrongful Termination

            “The elements of a claim for wrongful discharge in violation of public policy are

(1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) While an at-will employee can be terminated for no reason or an arbitrary reason, she cannot be terminated for an unlawful reason or a purpose that contravenes fundamental public policy. (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1138-1139.)

            “[T]he cases in which violations of public policy are found generally fall into four categories: (1) refusing to violate a statute; (2) performing a statutory obligation (3) exercising a statutory right or privilege; and (4) reporting an alleged violation of a statute of public importance.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th at p. 1090-91.)

            As discussed above, Defendants had a legitimate justification for terminating Plaintiff, and Plaintiff has not presented any evidence to raise a triable issue on any of the discrimination or retaliation claims. Accordingly, no reasonable jury could find that Plaintiff was wrongfully terminated. Summary adjudication is warranted on the wrongful termination claim.

VII. Harassment

Government Code section 12940, subdivision (j)(1) makes it unlawful for an employer to harass an employee based on a protected characteristic. Harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment communicates an offensive message to the harassed employee. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (Gov. Code, § 12923, subd. (b).)

The statute of limitations is one year for claims arising prior to January 2020. (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 931.) Plaintiff filed her DFEH complaint on October 10, 2019 (UF 66), limiting her claims to the period beginning October 10, 2018. (See Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402 [“a plaintiff cannot recover for acts occurring more than one year before the filing of the DFEH complaint”].) However, Plaintiff was on leave from April 2018 up to her termination in December 2018 and testified that she was not subjected to harassment while on leave. (UF 11, 64.) In other words, Plaintiff did not suffer harassment during the applicable limitations period. Any alleged harassment that occurred prior to Plaintiff taking leave would be time-barred. Therefore, summary adjudication is warranted on the harassment claim.   

VIII. Intentional Infliction of Emotional Distress

To state a cause of action for intentional infliction of emotional distress, a plaintiff must establish: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing, or reckless disregard of the probability of causing, emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)

“‘[I]t is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances.’” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128 [internal citations omitted].) “Severe emotional distress [is] emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397.)

As discussed above, Plaintiff has not presented any evidence to raise a triable issue on her discrimination, harassment, or retaliation claims. Plaintiff bases the IIED claim on the same allegations. (See Compl. ¶¶ 108-114.) As a result, there is no evidence of outrageous conduct to support the IIED claim. Summary adjudication is warranted on the IIED claim.

IX. Contract and Fraud Claims

            In California, “there is a statutory presumption that employment is terminable at will.” (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1386; Lab. Code, § 2922.) A plaintiff may overcome this presumption by demonstrating there was an express or implied agreement to terminate only for good cause. (Ibid.)

            In this case, Plaintiff’s employment was expressly at-will, as stated in her offer letter. (UF 2.) Plaintiff presents no evidence to the contrary, leaving the at-will presumption unrebutted. Plaintiff bases her contract and fraud claims on the theory that Defendants promised Plaintiff that her employment would continue as long as she performed satisfactorily and that she would be treated fairly. However, as discussed above, Plaintiff’s employment was at-will, and there is no evidence that Defendants treated her unfairly through harassment, discrimination, or similar conduct. Therefore, summary adjudication is warranted on the contract and fraud claims.  

X. Labor Code Section 1198.5

“Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.” (Lab. Code, § 1198.5, subd. (a).) “The employer shall make the contents of those personnel records available for inspection to the current or former employee, or his or her representative, at reasonable intervals and at reasonable times, but not later than 30 calendar days from the date the employer receives a written request . . . .” (Id., subd. (b).)

It is undisputed that Defendants provided Plaintiff with a copy of her personnel file within 30 days of her request. (UF 65.) Thus, summary adjudication is warranted on the Labor Code Section 1198.5 claim.

XI. Unfair Competition Law

Business and Professions Code section 17200 prohibits unlawful, unfair, or fraudulent business acts or practices. Each of the three prongs is an independent basis for relief. (Smith v. State Farm Mutual Automobile Insurance Co. (2001) 93 Cal.App.4th 700, 718.) Unlawful conduct is defined as any practice forbidden by law. (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 383.) UCL actions alleging unlawful conduct “borrow” from other statutes or common law causes of action outside Section 17200. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.)  

As discussed above, Plaintiff fails to raise a triable issue on any of her other claims. As a result, there is no predicate unlawful, unfair, or fraudulent activity to support the UCL claim. Summary adjudication is warranted on the UCL claim.

XII. Punitive Damages

Civil Code section 3294, subdivision (a) provides for an award of punitive damages in cases where “the defendant has been guilty of oppression, fraud, or malice.” With respect to a corporate defendant, the plaintiff must also set forth evidence that an officer, director, or managing agent either performed the act of oppression, fraud, or malice, or authorized or ratified such an act. (Id., § 3294, subd. (b).)

            Plaintiff’s prayer for punitive damages necessarily fails given Plaintiff’s failure to raise a triable issue on any cause of action. Additionally, none of the pertinent actors involved in Plaintiff’s termination are officers or managing agents. (UF 78-79.) Therefore, summary adjudication is warranted on the punitive damages claim.

CONCLUSION

            Defendants’ motion for summary judgment is GRANTED.