Judge: Joseph Lipner, Case: 23STCP03636, Date: 2024-02-08 Tentative Ruling
Case Number: 23STCP03636 Hearing Date: February 8, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
REGINALD SWEATMAN, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendants. |
Case No:
20STCP03636 Hearing Date: February 8, 2024 Calendar Number: 5 |
Defendant Federal Express Corporation (“Defendant”) moves
for summary judgment against Plaintiff Reginald Sweatman (“Plaintiff”).
Defendant additionally moves for summary adjudication on each of Plaintiff’s
causes of action and Plaintiff’s prayer for punitive damages.
The Court DENIES Defendant’s motion for summary judgment.
The Court GRANTS Defendant’s motion for summary adjudication
as to Plaintiff’s third, fourth, and twelfth causes of action.
The Court DENIES summary adjudication as to the remaining
causes of action.
The Court DENIES Defendant’s motion for summary adjudication
as to punitive damages.
This action arises out of Plaintiff’s employment
relationship with Defendant.
In December 2017, Defendant hired Plaintiff as a handler at
the Federal Express LAX hub.
Between 2017 and January 2019, Plaintiff was verbally
counseled twice. On September 17, 2018, Plaintiff was counseled for refusing to
follow a work directive. On December 31, 2018, Plaintiff was counseled for
failure to return to work after his lunch break. (Defendant’s Response to
Plaintiff’s Additional Undisputed Material Facts (“RAMF”) 3.)
In January 2019, Antonio Oliveres, a Team Leader, began
working with Plaintiff’s work group. Although Team Leader is a non-management
position, Team Leaders assign tasks and oversee a workgroup’s operational
activities. (RAMF 5.)
Plaintiff contends that Oliveres discriminated against him
and harassed him on a number of occasions. Plaintiff was one of the handlers
most frequently assigned by Oliveres to trucks requiring the heaviest lifting.
(Plaintiff’s Statement of Additional Material Facts (“AMF”) 12, 13; RAMF 12, 13.)
Plaintiff contends that Oliveres called Plaintiff lazy on more than one
occasion and, on at least one occasion, said out loud that “black people are
lazy.” Plaintiff, who is black, contends that this comment was directed at him.
Prior to Oliveres’ transfer to Plaintiff’s unit, another worker learned that
Oliveres had written down the names of all of the black employees who worked in
Plaintiff’s department and planned to make them work harder than the other
employees. (AMF 17.) Justin Holt, another employee, heard Oliveres say that
“black people whine too much.” (AMF 20; RAMF 20.)
Holt complained to human resources about Oliveres’ treatment
of Plaintiff but did not hear back except on one occasion when Holt was told
that Oliveres could not be racist because his wife was black and his children
were mixed. (AMF 18.)
Oliveres instituted a rule that employees under his group
had to raise their hands and tell them if they were going anyplace, including
to the bathroom. (AMF 21; RAMF 21.) However, Oliveres did not apply this rule
to some Hispanic workers who he was “cool with.” (AMF 21; RAMF 21.) Holt
complained about this policy to Robert Pacheco, the department manager, but was
not aware of any response by Pacheco. (AMF 22, RAMF 22.)
On March 12, 2019, Plaintiff was working in the upper level
of his department, where there are located a number of slides on which packages
are pushed down onto conveyor belts and into trucks. This area of the warehouse
is very loud. Defendant allows radios to be played at the workplace, and
Oliveres is aware of no policy that says that an employee cannot sing at work.
(AMF 9; RAMF 9.) Plaintiff was working on one of the slides, and Oliveres was
working on an adjacent slide about five feet away. Oliveres claimed that he
heard Plaintiff singing a song that he heard on the radio at the warehouse and
using profanity. (AMF 25.) Plaintiff disputes that Oliveres could have heard
this given the volume of noise in the warehouse. (AMF 27; RAMF 27.) Oliveres
was not aware of anyone who overheard this conversation. (RAMF 26.) Oliveres
called Pacheco and accused Plaintiff of using profanity while singing; Pacheco
called Plaintiff to his office and accused Plaintiff of using profanity. (AMF
30.)
On March 18, 2019, Pacheco emailed a draft warning letter to
be issued to Plaintiff to Debra Loveless, a human resources advisor. Pacheco
stated that the witness statements did not have strong backing for Oliveres’
version of what happened, but that he believed Oliveres because of Plaintiff’s
prior conduct that had resulted in two verbal warnings in the past two years.
(AMF 45; RAMF 45.)
On March 19, 2019, Pacheco issued a written warning to
Plaintiff and suspended him. (AMF 33.) Oliveres has heard other employees use
profanity in the workplace but does not recall whether he reported them. (AMF
36.)
On March 19, 2019, Plaintiff anonymously lodged a complaint
against Oliveres.
On March 20, 2019, David Pollock, a manager, emailed Pacheco
that he heard that Plaintiff was going to contest the warning letter and that
Loveless was going to interview some of the employees regarding Oliveres. (AMF
46.) Pacheco responded that “I hope that [Loveless] doesn’t stack the group
that she interviews, or [Oliveres will end up with a [warning] letter.” (AMF
48.)
Loveless interviewed several employees to determine whether
Oliveres targeted Plaintiff by giving him harder assignments and whether any
employee had witnessed any racially discriminatory behavior by Oliveres. (AMF
43; RAMF 43.)
On May 30, 2019, Plaintiff was involved in a car collision
with Miguel Sosa, a fellow Fedex employee, in the parking lot at work. Sosa,
who was intoxicated, pulled out of a parking space and hit Plaintiff’s car,
totaling it. Plaintiff, Sosa, and Sosa’s girlfriend exchanged words, which
included a number of profanities. Plaintiff video recorded a portion of the
incident. Plaintiff submitted a statement to human resources indicating that he
had a video recording.
On May 31, 2019, Plaintiff was placed on suspension. On June
20, 2019, Defendant terminated Plaintiff’s employment. It is undisputed that
the termination took into consideration the written letter issued to Plaintiff
relating to the March 12, 2019 incident. (AMF 53.)
Plaintiff
filed this action against Defendant on November 4, 2020, raising claims for (1)
race discrimination; (2) racial harassment; (3) gender-based discrimination;
(4) gender-based harassment; (5) failure to prevent discrimination and
harassment; (6) failure to correct and remedy discrimination and harassment;
(7) whistleblower retaliation in violation of Labor code, section 1102.5; (8)
retaliation for engaging in a protected activity; (9) retaliation for
complaints of discrimination and harassment; (10) wrongful termination; (11)
intentional infliction of emotional distress (“IIED”); and (12) negligent
infliction of emotional distress (“NIED”).
Defendant
moved for summary judgment on November 21, 2023. Plaintiff filed an opposition
and Defendant filed a reply.
The Court sustains Defendant’s 3rd evidentiary objection and
overrules Defendant’s remaining objections without prejudice to Defendant’s
ability to raise those objections at trial.
The purpose of a motion for
summary judgment or summary adjudication “is to provide courts with a mechanism
to cut through the parties’ pleadings in order to determine whether, despite
their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 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.)
“In ruling on the motion,
the court must consider all of the evidence and all of the inferences
reasonably drawn therefrom [citation] and must view such evidence [citations]
and such inferences [citations] in the light most favorable to the opposing
party.” (Aguilar, supra, at pp. 844-845 [quotation marks
omitted].)
“On a motion for summary
judgment, the initial burden is always on the moving party to make a prima
facie
showing that there are no triable issues of material fact.” (Scalf v. D. B.
Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for
summary judgment or summary adjudication “has met his or her burden of showing
that a cause of action has no merit if the party has shown 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 . . .
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 the 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.) “If the plaintiff cannot do
so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente
Medical Center (2008) 159 Cal.App.4th 463, 467.)
A plaintiff alleging discrimination must allege “that (1) [she]
was a member of a protected class, (2) [she] was qualified for the position he
sought or was performing competently in the position he held, (3) [she]
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 National Inc. (2000) 24 Cal.4th 317, 355.)
Although Defendant contends that Plaintiff was not subject
to an adverse action, it is clear that Plaintiff’s March 2019 suspension and
June 2019 suspension and termination were adverse actions.
“Proof of discriminatory intent often depends on inferences
rather than direct evidence. And because it does, very little evidence of such
intent is necessary to defeat summary judgment. Put conversely, summary
judgment should not be granted unless the evidence cannot support any
reasonable inference for plaintiff.” (Nazir v. United Airlines, Inc.
(2009) 178 Cal.App.4th 243, 283.)
Here, there is evidence the Oliveres had racial animus
against Plaintiff. Plaintiff has supported a triable issue that Oliveres said
that black people whine too much and intentionally planned to give harder
assignments to black workers. Thus, a reasonable jury could find that Oliveres’
report of Plaintiff on March 12, 2019 was based on racial animus. This report
led to a disciplinary letter and Plaintiff’s suspension, and Defendant admits
that the incident was considered in the decision to terminate Plaintiff’s
employment. Thus, Plaintiff’s claim can survive summary adjudication. For this reason, too, the Court denies
summary judgment.
To establish a prima facie case of a hostile work
environment, [the plaintiff] must show that (1) [plaintiff] is a member of a
protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the
harassment was based on [plaintiff’s] protected status; (4) the harassment
unreasonably interfered with [plaintiff’s] work performance by creating an
intimidating, hostile, or offensive work environment; and (5) defendants are
liable for the harassment.” (Ortiz v. Dameron Hospital
Assn. (2019) 37 Cal.App.5th 568, 581.)
Defendant argues that Plaintiff cannot show a pattern of
actionable harassment.
“[S]ome official employment actions done in furtherance of a
supervisor's managerial role can also have a secondary effect of communicating
a hostile message. This occurs when the actions establish a widespread pattern
of bias.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 709.) “Moreover,
acts of discrimination can provide evidentiary support for a harassment claim
by establishing discriminatory animus on the part of the manager responsible
for the discrimination, thereby permitting the inference that rude comments or
behavior by that same manager was similarly motivated by discriminatory animus.”
(Ibid.)
Here, Plaintiff has supported a triable issue that Oliveres
had a consistent behavior of assigning more difficult jobs to black employees.
This fact, combined with Oliveres’ alleged derogatory comments about black
people and report of the March 12, 2019 incident, create a triable issue that
there was a widespread pattern of bias. Thus, the Court denies summary
adjudication.
A plaintiff alleging discrimination must allege “that (1) [she]
was a member of a protected class, (2) [she] was qualified for the position he
sought or was performing competently in the position he held, (3) [she]
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 National Inc. (2000) 24 Cal.4th 317, 355.)
Plaintiff has not opposed the motion for summary
adjudication as to third cause of action for gender-based discrimination. While Plaintiff can establish a triable issue
as to racial discrimination, Plaintiff does not appear to argue the same as to
gender-based discrimination, nor does the evidence support such a claim. The
Court therefore grants summary adjudication on this cause of action.
To establish a prima facie case of a hostile work
environment, [the plaintiff] must show that (1) [plaintiff] is a member of a
protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the
harassment was based on [plaintiff’s] protected status; (4) the harassment
unreasonably interfered with [plaintiff’s] work performance by creating an
intimidating, hostile, or offensive work environment; and (5) defendants are
liable for the harassment.” (Ortiz v. Dameron Hospital
Assn. (2019) 37 Cal.App.5th 568, 581.)
Plaintiff has not opposed the motion for summary
adjudication as to fourth cause of action for gender-based harassment. While Plaintiff can establish a triable issue
as to racial harassment, Plaintiff does not appear to argue the same as to
gender-based harassment, nor does the evidence appear to support such a claim.
The Court therefore grants summary adjudication on this cause of action.
The elements of a cause of action for failure to prevent
harassment or retaliation are: (1) actionable discrimination or harassment by
employees or nonemployees; (2) defendant’s legal duty of care toward plaintiff
(i.e., defendant is the plaintiff’s employer); (3) breach of that duty (i.e.,
failure to take all reasonable steps necessary to prevent discrimination and
harassment from occurring); (4) legal causation; and (5) damages to plaintiff.
(Trujillo v. North County Transit
District (1998) 63 Cal.App.4th 280, 287, 289; Bradley v. Department of Corrections & Rehabilitation (2008)
158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.)
Defendant argues that this cause of action fails because
Plaintiff cannot show harassment or discrimination. Because the Court has found
otherwise above, the Court denies summary adjudication here.
The elements of a cause of action for failure to prevent
harassment or retaliation are: (1) actionable discrimination or harassment by
employees or nonemployees; (2) defendant’s legal duty of care toward plaintiff
(i.e., defendant is the plaintiff’s employer); (3) breach of that duty (i.e.,
failure to take all reasonable steps necessary to prevent discrimination and
harassment from occurring); (4) legal causation; and (5) damages to plaintiff.
(Trujillo v. North County Transit
District (1998) 63 Cal.App.4th 280, 287, 289; Bradley v. Department of Corrections & Rehabilitation (2008)
158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.)
Defendant argues that this cause of action fails because
Plaintiff cannot show harassment or discrimination. Because the Court has found
otherwise above, the Court denies summary adjudication here.
The Labor Code’s whistleblower provision prohibits an
employer from retaliating against an employee who reports a violation of state
or federal statute or a local, state, or federal rule or regulation or who
refuses to participate in any activity that would result in a violation of law.
(Lab. Code § 1102.5.) To prevail on whistleblower retaliation claim, a
plaintiff must establish that their alleged protected activated was a
contributing factor in the adverse action taken against them. (Lab. Code, §
1102.5.)
Plaintiff engaged in a protected activity when he raised his
internal complaint of harassment and discrimination by Oliveres. Plaintiff
participated in an interview with Loveless as a result of this complaint.
Further, Plaintiff has supported a triable issue of a causal
nexus. Regarding the complaint, Pacheco, who had issued Plaintiff’s March 2019
suspension, received information that Plaintiff was going to institute a “GFT”,
or fair treatment process, and that Pacheco stated in response, “I hope that
[Loveless] doesn’t stack the group that she interviews, or [Oliveres] will end
up with a [warning] letter.” (AMF 46-48.) Contrary to Defendant’s argument that
Pacheco did not know of Plaintiff’s protected activity, there is a triable
issue of fact that he did. In reply,
Defendant responds to these points with heavily fact-based arguments about
causation that do not give rise to a right to summary adjudication. (See Reply at pp. 12:24-13:15.)
The Court denies summary adjudication on this claim.
“To establish a prima facie case of retaliation under the
[Fair Employment and Housing Act] FEHA, a plaintiff must show (1) he or she
engaged in a ‘protected activity,’ (2) the employer subjected the employee to
an adverse employment action, and (3) a causal link existed between the
protected activity and the employer’s action.” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879,
brackets omitted.) “An ‘adverse employment action,’ which is a critical
component of a retaliation claim, requires a substantial adverse change in the
terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th
1047, 1063, quotation marks omitted.)
Defendant makes substantially the same arguments here as
against Plaintiff’s seventh cause of action. For the same reasons, the Court
finds that Plaintiff has supported a triable issue that his June 2019
suspension and termination were causally linked to his human resources
complaint.
The Court denies summary adjudication on this claim.
“To establish a prima facie case of retaliation under the
[Fair Employment and Housing Act] FEHA, a plaintiff must show (1) he or she
engaged in a ‘protected activity,’ (2) the employer subjected the employee to
an adverse employment action, and (3) a causal link existed between the
protected activity and the employer’s action.” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879,
brackets omitted.) “An ‘adverse employment action,’ which is a critical
component of a retaliation claim, requires a substantial adverse change in the
terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th
1047, 1063, quotation marks omitted.)
Defendant makes substantially the same arguments here as
against Plaintiff’s seventh cause of action. For the same reasons, the Court
finds that Plaintiff has supported a triable issue that his June 2019
suspension and termination were causally linked to his human resources
complaint.
The Court denies summary adjudication on this claim.
“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. It is well established that a termination premised on an
employee’s refusal to violate either a statute or an administrative regulation
may support a claim for wrongful termination in violation of public policy.” (Nosal-Tabor v. Sharp Chula Vista Medical
Center (2015) 239 Cal.App.4th 1224, 1234, citation omitted.)
As discussed under Plaintiff’s racial discrimination cause
of action, Plaintiff has supported a triable issue of fact that racial animus
by Oliveres causally led to his termination. For these reasons, the Court
denies summary adjudication on this claim.
“The elements of a prima facie case for the tort of
intentional infliction of emotional distress are: (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.
Conduct to be outrageous must be so extreme as to exceed all bounds of that usually
tolerated in a civilized community.” (Wilson
v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)
Defendant argues that the Worker’s Compensation Act
categorically preempts IIED claims by employees. This is only partially true. “So
long as the basic conditions of compensation are otherwise satisfied, and the
employer's conduct neither contravenes fundamental public policy nor exceeds
the risks inherent in the employment relationship, an employee's emotional
distress injuries are subsumed under the exclusive remedy provisions of
workers' compensation.” (Livitsanos v.
Superior Court (1992) 2 Cal.4th 744, 754). However, where an employer’s
actions do contravene fundamental public policy, California courts recognize
that a traditional tort remedy is appropriate. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 177.)
Plaintiff argues that the decision to terminate him
resulting from racial animus cannot be considered a normal part of the
employment relationship because it contravenes fundamental public policy.
Some courts have held that an adverse employment action in
violation of public policy, without more, has been held not to arise to the
level of the extreme and outrageous conduct required by the first element of
IIED. “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.” (Janken
v. GM Hughes Electronics (1996) 46 Cal.App. 4th 55, 80.)
Conversely, other courts hold that “[t]he Legislature,
however, did not intend that an employer be allowed to raise the exclusivity
rule for the purpose of deflecting a claim of discriminatory practices.” (Accardi
v. Superior Court (1993) 17 Cal.App.4th 341, 352; Flait v. North
American Watch Corp. (1992) 3 Cal.App.4th 467, 480.)
Furthermore, Plaintiff was not simply subject to a single
personnel management decision – the actions which appear to be based on animus
formed an ongoing pattern. It may in fact be difficult for Plaintiff to prove
that the alleged discrimination and harassment rises to the level of the
outrageous behavior required for an IIED claim, but the Court does not find it
appropriate to resolve this split in authority against Plaintiff on summary
judgment.
The Court therefore denies summary judgment on this claim.
“The law of negligent infliction of emotional distress in
California is typically analyzed by reference to two theories of recovery: the
‘bystander’ theory and the ‘direct victim’ theory. The negligent causing of
emotional distress is not an independent tort, but the tort of negligence. The
traditional elements of duty, breach of duty, causation, and damages apply.
Whether a defendant owes a duty of care is a question of law.” (Spates v. Dameron Hosp. Ass’n (2003) 114
Cal.App.4th 208, 213, ellipses, quotation marks, brackets, and paragraph breaks
omitted.)
“The negligent causing of emotional distress is not an
independent tort but the tort of negligence.” (McMahon v. Craig (2009)
176 Cal.App.4th 1502, 1509 [quotation marks and citation omitted; cleaned up].)
Plaintiff has not opposed summary adjudication of this
claim. Plaintiff does not appear to
contest Defendant’s argument that NIED is not applicable as a separate cause of
action. The Court therefore grants summary judgment on this claim.
To obtain summary adjudication as to punitive damages, a
moving party must conclusively show that it did not act with malice, oppression,
or fraud. (Fadeeff v. State Farm General Insurance Co. (2020) 50
Cal.App.5th 94, 109; Civ. Code, § 3294, subd. (a); Code Civ. Proc., § 437c,
subd. (f)(1).)
“[A] program of unwarranted criticism of [a] plaintiff's job
performance to justify [a] plaintiff's demotion … demonstrates oppressive
behavior.” (Stephens v. Coldwell Banker Commercial Group, Inc. (1988)
199 Cal.App.3d 1394, 1403, disapproved of on other grounds by White v.
Ultramar, Inc. (1999) 21 Cal.4th 563.)
Here, Plaintiff has supported a triable issue as to such a
program of unwarranted criticism by Oliveres, which was then ratified by
managers Pacheco and Pollock. The Court therefore denies summary adjudication
on this issue.