Judge: Kevin C. Brazile, Case: 21STCV11236, Date: 2023-04-11 Tentative Ruling

Hearing Date: April 11, 2023

Case Name: Loyd v. Wal-Mart Associates, Inc., et al.

Case No.: 21STCV02018

Matter: Motion for Summary Judgment/Adjudication

Moving Party: Defendants Walmart Inc., Wal-Mart Associates, Inc., and Oscar Mejia 

Responding Party: Plaintiff Melissa Loyd 

Notice: OK

Ruling: The Motion for Summary Adjudication is granted as to the first, 

fourth, sixth, seventh, ninth, tenth, and twelfth causes of action.  The Motion is otherwise denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On January 19, 2021, Plaintiff Melissa Loyd filed the operative Complaint against Defendants Walmart Inc., Wal-Mart Associates, Inc., and Oscar Mejia for (1) defamation, (2) intentional infliction of emotional distress (“IIED”), (3) FEHA gender harassment, (4) FEHA gender discrimination, (5) FEHA failure to prevent harassment and discrimination, (6) FEHA disability discrimination, (7) violation of the CFRA, (8) FEHA retaliation, (9) FEHA failure to accommodate, (10) FEHA failure to engage in interactive process, (11) wrongful termination, (12) FEHA disability harassment, (13) failure to pay overtime wages, (14) violation of the UCL, and (15) fraud. 

Defendants now move for summary judgment or, alternatively, summary adjudication of all causes of action, as well as the issue of punitive damages and the affirmative defense of avoidable consequences.  

The law of summary judgment provides courts “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. (2001) 25 Cal.4th 826, 843.)  In reviewing a motion for summary judgment or adjudication, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)  The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue, in which case the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue.  (Code Civ. Proc. § 437c(p)(2).)  To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto.  (Aguilar, at p. 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.)

1. Gender Discrimination, Disability Discrimination, Retaliation, & Wrongful Termination

To analyze claims of discrimination under the FEHA based on a theory of disparate treatment, courts employ a three-step, burden-shifting test.  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-355 (“Guz”).)  Because evidence of intentional discrimination is rare, the law permits the inference of discrimination based on facts that create “a reasonable likelihood of bias and are not satisfactorily explained.”  (Id. at p. 354.)  The tiered approach assists the Court in identifying such facts.  The approach proceeds as follows:  Once the plaintiff establishes a prima facie case of discrimination, a presumption of discrimination arises.  The burden then shifts to the employer to dispel the presumption by producing admissible evidence that its action was taken for a legitimate, nondiscriminatory reason.  Finally, the burden shifts back to the plaintiff, who then has the opportunity to attack the employer’s proffered reason as pretext for discrimination, or to offer other evidence of discriminatory motive.  (Id. at pp. 355-356.)

Under the FEHA, a prima facie case of discrimination generally consists of the following elements: (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in the position he or she held, (3) the plaintiff suffered an adverse employment action, and (4) some other circumstance suggesting discriminatory motive.  (Guz, supra, 24 Cal.4th at p. 355.)

Courts employ the same burden-shifting approach to analyze claims of retaliation under the FEHA.  (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)  Thus, the plaintiff has the initial burden to establish a prima facie case by showing (1) he or she engaged in 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.  (Ibid.)  Once the employee establishes the prima facie case, the burden shifts to the employer, who must present a legitimate, nonretaliatory reason for the adverse employment action.  (Ibid.)  If the employer carries this burden, the court no longer presumes retaliation, and the burden shifts back to the employee to prove intentional retaliation.  (Ibid.)

With respect to motions for summary judgment, “ ‘the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.)  “If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’ ” (Ibid.)

Defendants first argue that there was no adverse action because Plaintiff was not fired. Defendants contend that Plaintiff’s position was eliminated nationwide; she obtained a different position in another store; and then Plaintiff voluntarily resigned.  

Plaintiff argues she “is not claiming her gender was the reason for the elimination of her Assistant Store Manager's position, but the elimination of her position was in retaliation for her reporting and complaining about the sexual harassment by the Store's co-Manager, Mr. Mejia,. and because Ms. Loyd reporting Mr. Hawkins' sexual harassment of one of his subordinates, Ms. Cecilia Borja, which lead to Mr. Hawkins being terminated. (See Loyd Dec. para, 39-41.) (Response to Undisputed Material Fact Nos. 56-60).”

By Plaintiff’s own admission, there was no adverse action tethered to Plaintiff’s gender.  Therefore, the Motion for Summary Adjudication is granted as to the fourth cause of action for gender discrimination.

The Motion is also granted as to the sixth cause of action for disability discrimination because Plaintiff cannot point to an adverse action tethered to her disability status. Plaintiff only points to the fact that her job was threatened before her leave ended.  However, the only adverse action discussed is the loss of her assistant manager position.  The evidence is undisputed that this position was eliminated throughout the country; over ten thousand of the same position were eliminated.  

As to retaliation, Plaintiff contends that she was denied a promotion from assistant manager to coach and that her peers, with lower performance evaluations, instead received promotions.  This theory was not addressed by Defendants; therefore, Defendants have failed to carry their burden on this issue.  Defendants have only asserted meritless objections on this issue.  Accordingly, the Motion for Summary Adjudication is denied as to the eighth cause of action. 

The Motion is also denied as to the wrongful termination claim, which is apparently based on a constructive discharge theory to the extent Plaintiff was not promoted and she resigned from a job that paid her significantly less than her original position.  

2. Disability and Gender Harassment

To establish a prima facie case of harassment under the FEHA, the plaintiff must show that (1) she was a member of a protected class, (2) she was subjected to unwelcome harassment based on her protected status, and (3) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment.  (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)  “ ‘Harassment cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.’ ”  (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131.)  In other words, the harassment must be “sufficiently severe or pervasive to alter the condition of the victim’s employment and create an abusive environment,” as judged by the reasonable person belonging to the plaintiff’s protected class.  (Thompson, at p. 877.)

Defendants argue that Plaintiff cannot present evidence of sufficiently severe and pervasive conduct so as to establish gender harassment.  Defendants have failed to carry their burden; their own moving papers show there are triable issues:  

October 2019: “I was walking into the store with Onzo Winfrey, because I needed help; I was bringing in drinks from Starbucks for everybody, and I needed his help. So we were walking in the action alley, and Oscar had said, ‘What did you guys do, wake up in the same bed together?’ ” (Plf. Depo., 309:7-17, 557:9-19.)  

November 2019: “And Oscar had made a comment … ‘I bet you’ll be back with him by December, because you like to get your ass beat.’” (Id., 358:19-359:5.)  Approx. January 2020: “And then he made a comment to me that he knows who to call if he wants to get, I don’t know if he said ‘laid’ or ‘hook up’ or ‘have sex’ -- I forget the exact words, but he said something to that effect -- and he said, ‘instead of Sierra Highway.’” (Id., 354:19-356:6.)  

February/March 2020: “I was on top of a top stock cart, which that’s carts that we use to get stuff from up top. I was on top of it, and Oscar was below, and he was talking to me. And he said -- his words were, ‘I heard that your tits taste great.’” (Id., 308:12-25, 347:5-20.)  

June 2020: “He said that Jason made a comment of a picture that he seen of me … I can’t remember … how their conversation went, but I remember exactly word-for word what Oscar told me, and he said, quote-unquote, ‘that your picture looked like you were looking for some dick.’” (Id., 351:14-352:11, 556:23-557:5.)

Defendants also argue that “Plaintiff unreasonably failed to make use of the procedures for reporting such alleged conduct.”  This is not dispositive and might only affect the amount of damages—an issue for the jury.  The Motion is denied as to gender harassment.

On the other hand, there is no evidence of disability harassment; Plaintiff only points to evidence that her position was threatened because she went on leave.  Plaintiff conflates harassment and discrimination.  The Motion is granted as to the twelfth cause of action.

3. Failure to Provide Reasonable Accommodation & to Engage in Interactive Process

The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability.  (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.)  

“The ‘interactive process' required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not necessarily required.”  (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1013.)

Defendants have adequately carried their burden to show that Plaintiff was not denied any leave request by pointing to Plaintiff’s deposition:

Q. In fact, at any point, did you ever have a request for an accommodation to Walmart that was ever denied? 

A. For medical leave? 

Q. For any kind of leave.

A. I don’t believe so.

Plaintiff argues that “what WalMart did was so illegal when it terminated Mr. Loyd from her position as an Assistant Store Manager, via the letter from WalMart's HR Manager, Brandy Williams, on September 9, 2020, which was five days before Ms. Loyd was ordered to return to work. (See Loyd Decl. para, 42 & 43.)”  However, it is not apparent that there was unlawful conduct to the extent Plaintiff’s position was eliminated throughout the country.  The Motion is granted as to the ninth and tenth causes of action.

4. CFRA

“Both the FMLA and CFRA provide a right to leaves of absence for a maximum of 12 weeks leave in a 12-month period. [29 USC § 2612(a)(1); Gov.C. § 12945.2(a)]”.  (Chin et al., Cal. Prac. Guide Employment Litigation (2022) Ch. 12-B.)  “[T]he CFRA allows employee requests for intermittent or reduced schedule leaves when medically necessary because of: — the serious health condition of the employee; or — the serious health condition of the employee's child, parent, parent-in-law, spouse, domestic partner, grandparent, grandchild, or sibling [Gov.C. § 12945.2(b)(4)(B), (b)(10) (amended Stats. 2021, Ch. 327; eff. 1/1/22); 2 CCR § 11090(e); see 2 CCR § 11087 (definitions)]”.  (Ibid.)

Because Plaintiff received all the leave she requested, the Motion is granted as to the seventh cause of action.

5. Overtime Wages

Defendants argue that “[b]ecause Plaintiff was properly classified as exempt, her overtime claim should be dismissed.”  Specifically, they contend that “Plaintiff was properly classified. She admits she was paid a monthly salary more than ‘two times the state minimum wage.’ (Plf. Depo., 101:22-25.) She admits she was She admits she had the authority to hire and fire employees. (Id. at 103:2-10.) And she admits that she performed her role by exercising discretion and independent judgement. (Id. at 103:11-17.)”

There are triable issues as Plaintiff states “[t]he work I did during the overtime hours were the work the ‘associate’ normally did, which including stocking shelves, cleaning, working the cash register, and straighten isles, all of which I did over 50% of the time I worked overtime.”  (Loyd Decl. ¶ 44.)

6. Failure to Prevent Harassment & Discrimination

Defendants argue that Plaintiff’s claim for failure to prevent harassment/discrimination fails because Plaintiff’s underlying claims lack merit.  This argument is rejected because Plaintiff’s gender harassment claim has survived.

7. UCL and Fraud

Defendants argue that Plaintiff’s UCL and fraud claims fail because they rely on Plaintiff’s meritless claim for failure to pay overtime wages.  This argument lacks merit because there are triable issues as to Plaintiff’s overtime claim.

8. IIED

Defendants argue that Plaintiff cannot establish extreme and outrageous conduct for the purposes of her IIED claim.

The elements of the tort of IIED 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.”  (Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903, internal quotations omitted.)  Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.  (Molko v. Holy Spirit Assn. (1986) 46 Cal.3d 1092, 1122.)

Here, the IIED claim survives to the extent Plaintiff has shown triable issues as to gender harassment.

9. Defamation

Defendants assert that Plaintiff’s defamation claim fails because Plaintiff cannot show that any of the statements at issue were published.  Defendants also argue that any such statements were part of an employment investigation and, therefore, are privileged under Civ. Code § 47(c).  

The tort of defamation consists of (1) a publication that is (2) false, (3) defamatory, and (4) unprivileged, and that (5) has a natural tendency to injure or that causes special damage.  (Taus v. Loftus (2007) 40 Cal.4th 683, 720.)  

Plaintiff states in her declaration that on “June 20, 2020, and July 5, 2020, the private coaching statements about me were left out on the desk, in full view, in the assistant store manager’s office, by co-store Manager, Oscar Mejia, and store Manager, Amy Cortez. I know these statements were seen by Onzo Winfrey, and Deondre Madison, both assistant store managers, because I was with Onzo Winfrey when Onzo saw the statements on the desk, and Mr. Madison told me he had seen those statement. Neither of these two employees had any business reason to see those statements, which had allegations of misconduct about me.”

The Court will disregard this evidence as contradictory to Plaintiff’s prior testimony.  (See Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1503 [“when a defendant can establish his defense with the plaintiff's admissions sufficient to pass the strict construction test imposed on the moving party ... , the credibility of the admissions are valued so highly that the controverting affidavits may be disregarded as irrelevant, inadmissible or evasive.”].)  Indeed, at her deposition, Plaintiff stated, “I don’t know … I don’t know what was shared” and “No, I don’t know if [anyone accessed the information] -- no one mentioned it to me.”  (Plaintiff’s Depo pp. 560, 562.)  Further, what Madison told Plaintiff is hearsay.  Thus, the Motion is granted as to Plaintiff’s defamation claim.

10. Punitive Damages

Defendants argue that Plaintiff cannot obtain punitive damages because “(1) there is no evidence of oppression, fraud, or malice on the part of any Walmart employee, and (2) the alleged bad actors (Cortez and Mejia) were not officers, directors, or managing agents of Walmart.”

Here, there is evidence of harassment for which punitive damages may be obtained.

As to the issue of managing agents, Plaintiff argues that “[t]he following person were ‘managing agents’ of WalMart: 1) Amy Cortez, the Store Manager, 2) Market Manager, Jackie Williams who was in charge of about WalMart stores in the Palmdale/Lancaster area, and whom all the Palmdale/Lancaster Store Managers reported to her, 3) Ms. Brandy Williams, the Market Human Resources Director, who was in charge of 15 WalMart stores, and 4) Ms. Laura Kish, WalMart's ‘Regional Human Resources Director, who ‘oversees 161 stores,’ who does ‘anything from talent development, to succession planning to strategic people plans within the region.” 

“The managing agent must be someone who exercises substantial discretionary authority over decisions that ultimately determine corporate policy.”  (White v. Ultramar, Inc. (1999) 21 Cal. 4th 563, 573.)  Defendants fail to dispute that Kish is a managing agent, such that the issue is conceded for the purposes of this Motion.  (See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566.)  Further, there is evidence that Kish ratified harassment by declining an investigation.  (See Civ. Code § 3294.)  Thus, the Motion is denied as to punitive damages.

11. Summary

In sum, the Motion for Summary Adjudication is granted as to the first, fourth, sixth, seventh, ninth, tenth, and twelfth causes of action.  The Motion is otherwise denied.  Defendants’ objections are sustained as to paragraph 48 of Loyd’s declaration; the objections are otherwise overruled.  The Requests for Judicial Notice are granted.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.