Judge: Gregory Keosian, Case: 20STCV19075, Date: 2023-05-02 Tentative Ruling

Case Number: 20STCV19075    Hearing Date: May 2, 2023    Dept: 61

Defendants TPUSA-FHCS, Inc., Sandy Matthews, Denise Brackeen, and Christopher Keveny’s Motion for Summary Judgment is GRANTED.

Defendants to provide notice.

I.                SUMMARY JUDGMENT

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.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an 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).)

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.  (Aguilar, supra, 25 Cal.4th at 850.)  The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.  (Ibid.)  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.)

Defendants TPUSA-FHCS, Inc., Sandy Matthews, Denise Brackeen, and Christopher Keveny (Defendants) move for summary judgment on all of Plaintiff Jane Doe’s (Plaintiff) claims for FEHA discrimination, retaliation, harassment, wrongful termination, and Labor Code violations. Defendants argue that all of Plaintiff’s FEHA claims are time-barred, and that all claims based on her termination fail because the reason for her termination was her failure to report to work or notify her employer of absences. (Motion at pp. 7–12, 14–16.) Defendants argue that Plaintiff cannot make a claim for FEHA harassment as the conduct she complains of consisted of a series of emails based on no protected characteristics. (Motion at pp. 12–13.) Defendants argue moreover that Plaintiff’s FEHA retaliation claim fails as she engaged in no protected activity. (Motion at pp. 11–12.) Defendants also argue that Plaintiff cannot prevail on her claims for various Labor Code violations because Plaintiff possessed the discretion to take her own meal and rest periods, and was responsible for logging her own time. (Motion at pp. 16–19.) Defendants also seek to adjudicate Plaintiff’s prayer for punitive damages. (Motion at pp. 19–20.)

At the time Plaintiff was terminated in May 2018, the applicable FEHA statute of limitations required the filing of a complaint with the Department of Fair Employment and Housing (DFEH) within one year of the adverse employment action. (Gov. Code § 12960, subd. (d), amended on January 1, 2020.) Plaintiff was terminated on May 22, 2018, and she did not file a complaint with the DFEH until May 30, 2019, more than a year later. (Separate Statement of Undisputed Material Facts (UMF) Nos. 33, 35.) Although the FEHA statute was amended effective January 1, 2020, to extend the limitations period to three years, Plaintiff’s claims had lapsed by then, and the amendment was passed with the directive that it “shall not be interpreted to revive lapsed claims.” (Stats.2019, c. 709 (A.B.9), § 3, eff. Jan. 1, 2020.) Thus Plaintiff’s claims for FEHA discrimination, harassment, and retaliation, are time-barred.

Defendants have also shown an absence of triable issues of fact as to the reasons for Plaintiff’s termination.  In a FEHA discrimination or retaliation claim founded upon adverse employment actions, if the defendant offers evidence of a legitimate, nondiscriminatory reason for the action, “the plaintiff bears the burden of proving the employer's proffered reason was pretextual.” (Brundage v. Hahn (1997) 57 Cal.App.4^th 228, 236.). Here, Defendant has presented evidence that Plaintiff was terminated after successive calls to return to work, which she did not heed in violation of the company’s “No Call, No Show” policy, and which led Defendant to conclude that she had abandoned her employment. (UMF No. 28–32; Black Decl. ¶¶ 17–20.) This is a legitimate business reason for Plaintiff’s termination.

Defendants also persuasively argue for the absence of triable issues of fact concerning Plaintiff’s claim of harassment. To be actionable, workplace harassment must be “based on [the plaintiff’s] protected status. (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563.) Additionally, the harassment must be “sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment.” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1313.) Defendant points to Plaintiff’s description of her harassment in her responses to interrogatories, in which she states that Defendant Denise Brackeen told her to put the wrong dates on forms, “threatened me and . . . even sent me over 13 harassing emails in one day,” and also sent emails to make it appear that the irregularities that Plaintiff complained of were Plaintiff’s fault.” (Motion Exh. C at pp. 7–8.) The court agrees that the conduct described does not amount to severe or pervasive harassment. Plaintiff has filed no opposition to the motion on this point.

Accordingly, the motion is GRANTED as to Plaintiff’s seventh, eighth, ninth, and eleventh causes of action under FEHA. Similarly, because Plaintiff’s claims for intentional infliction of emotional distress, retaliation under Labor Code § 1102.5, and wrongful termination depend upon identical allegations, the motion is properly GRANTED as to these claims as well. Thus the motion is GRANTED as to the seventh through thirteenth causes of action.

This leaves Plaintiff’s claims for various Labor Code violations in relation to meal periods, rest periods, overtime, and wage statements. Defendant notes that Plaintiff was expected to take meal and rest breaks at her discretion, and that Plaintiff was frequently reminded to take meal breaks. (Matthews Decl. ¶¶ 10–12.) Defendant also notes its policy of providing a duty-free 30-minute meal break after employees complete their fifth hour of work, in compliance with Labor Code § 512, subd. (a). (UMF No. 47.) Defendant further argues that it is required only to “authorize and permit the amount of rest break time called for under the wage order for its industry,” and that it authorized and permitted such breaks by committing them to Plaintiff’s discretion and promulgating a code-compliant policy. (Motion at p. 17; UMF No. 11, 47; Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1033.)

Likewise, although Plaintiff states a claim for failure to pay overtime under Labor Code § 510, Defendant notes that the hours worked for which payment may be sought includes only those hours “the employer knew or should have known that the employee was working on its behalf.” (Motion at p. 18; Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, 840.) Defendants note that Plaintiff was the one who recorded her hours, and was paid according to her own time reports. (Matthews Decl. ¶ 10.) Thus Defendants argue that Plaintiffs’ claims for unpaid wages and meal and rest premiums fail, and that her underlying claims for inaccurate wage statements and unfair business practices also fail. (Motion at pp. 18–20.)

Defendants have shown an absence of triable issues of fact as to Plaintiff’s wage-and-hour claims, and Plaintiff has filed no opposition countering this showing.

Accordingly, Defendants’ motion for summary judgment is GRANTED.