Judge: Michael Shultz, Case: 23STCV02741, Date: 2025-03-03 Tentative Ruling
Case Number: 23STCV02741 Hearing Date: March 3, 2025 Dept: 40
23STCV02741
Diana Bejarano v. Inland Kenworth (US), Inc., et al.
Monday,
March 3, 2025
[TENTATIVE]
ORDER
I.
BACKGROUND
The
complaint alleges that during Plaintiff’s employment with Defendants, Inland
Kenworth (US) Inc.; Inland Kenworth, Inc.; and Inland Paclease, (collectively
“Inland” or “Defendants”), Plaintiff was required to call out from work to
assist her father who required cancer treatment. The complaint alleges that in November of 2020,
Plaintiff was “written up” by her supervisors, Chris Gibbs (“Gibbs”) and Andy
Diep (“Diep”) and for taking protected leave while helping to care for her
father.
During
the same month, Plaintiff informed Defendants that she was pregnant and
expected to have various medical appointments as a result. She began protected
leave in June of 2021 and returned in November of 2021. Upon her return,
Plaintiff was given a “dramatically different schedule” by her supervisor.
Although Plaintiff complained about the discrimination and retaliation, she was
not given back her original schedule and was forced to resign her employment.
Plaintiff
alleges seven causes of action for violations of the Fair Employment and
Housing Act (“FEHA”), other statutory claims under the California Family Rights
Act (“CFRA”) and the Labor Code, and tort claims for wrongful termination in
violation of public policy and intentional infliction of emotional distress.
II.
ARGUMENTS
Defendants
collectively move for summary judgment of all seven causes of action on grounds
Defendants did not take any adverse action against Plaintiff, who voluntarily
resigned because she was not given a preferred shift. There is no evidence of
intolerable working conditions to support a constructive discharge claim.
Defendants did not owe a duty to accommodate Plaintiff for an associational
disability, Plaintiff never engaged in protected activity under the CFRA, and
Defendants did not have a duty to initiate a CRFA leave request. Finally, there
is no evidence that Defendants engaged in extreme or outrageous behavior to
support the emotional distress claim, which is also barred by the workers’
compensation exclusivity rule. Defendants alternatively request adjudication of
11 separate issues.
In
opposition, Plaintiff argues that triable issues of fact warrant denial of the
motion. There is direct evidence of discrimination and retaliation. Defendants’
contention that they had a legitimate business reason for terminating Plaintiff
involved disputed facts. Worker's compensation exclusivity does not apply.
In
reply, Defendants reiterate its arguments made in the moving papers.
III.
LEGAL STANDARDS
Summary
judgment is proper “if all the papers submitted 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.” Until the moving defendant has discharged its burden of
proof, the opposing plaintiff has no burden to come forward with any evidence.
Once the moving party has discharged its burden as to a particular claim,
however, the plaintiff may defeat the motion by producing evidence showing that
a triable issue of one or more material facts exists as to that cause of
action. (Code Civ. Proc., §437c(p)(2).)
The
court strictly construes the moving party's supporting evidence while the
opposing party’s evidence is liberally construed. Doubts as to the propriety of
the motion should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20.) The court does not evaluate the
credibility of testimony. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal. App. 4th 832, 840.) The
court applies the three-step analysis to motions for summary judgment or
adjudication: (1) identify the issues framed by the pleading, (2) determine
whether the moving party established facts which negate the opponents’ claim,
(3) if a defendant meets its threshold burden of persuasion and the burden
shifts, determine whether the opposing party has controverted those facts with
admissible evidence. (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)
A party can move for summary adjudication as
to one or more causes of action within an action or one or more claims for
damages if the party contends that there is no affirmative defense to any cause
of action. A motion for summary adjudication shall be granted only if it
completely disposes of a cause of action, an affirmative defense, a claim for
damages, or an issue of duty. (Code Civ. Proc., § 437c(f)(1).)
In ruling on the motion, the court
considers the material issues defined by the allegations of the complaint. (Lewinter
v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223.) The court
strictly construes the moving party’s evidence and liberally construes those of
the opposing party. All doubts are resolved in favor of the opposing party. (Stationers Corp. v. Dun & Bradstreet,
Inc. (1965) 62 Cal. 2d 412, 417.)
IV.
DISCUSSION
A.
Shifting-burden
analysis with respect to a summary judgment motion.
The court evaluates the discrimination
claim for disparate treatment based on a three-part test (as direct evidence of
discrimination is rare). (Guz
v. Bechtel Nat. Inc. (2000) 24
Cal.4th 317, 354 [“… by
successive steps of increasingly narrow focus, the test allows discrimination
to be inferred from facts that create a reasonable likelihood of bias and are
not satisfactorily explained.”].)
This test requires a plaintiff to (1)
establish a prima facie case for discrimination. (2) The burden then shifts to
defendant to rebut the presumption by showing
that it had a legitimate, non-discriminatory and/or non-retaliatory
reason for the action. (3) The burden then shifts back to the plaintiff to
establish that the employer’s reason was a pretext for discrimination and/or
retaliation. (McDonnell
Douglas Corp. v. Green (1973) 411
U.S. 792, 802; Guz
v. Bechtel Nat. Inc. (2000) 24
Cal.4th 317, 354.)
B.
Objections.
The court need only rule on those
objections to evidence that the court deems material to its disposition of the
motion. Objections to evidence that are not ruled on for purposes of the motion
are preserved for appellate review. (Code Civ. Proc., § 437c subd. (q).) Accordingly, the court will
address the evidentiary objections submitted to the extent they relate to
evidence that is material to the court’s ruling.
Plaintiff’s objections 1-3 are overruled.
Objections 4-6 do not cite any evidence to which an objection is made.
Objections 7-15, 18 are not objections to evidence; rather Plaintiff objects to
the separate statement, which is not evidence. The court does not rule on
objection 16 to the Declaration of Chris Gibbs because it was not material to
the court’s disposition of the motion.
C.
Plaintiff’s
prima facie case for discrimination.
To establish a prima facie case for
discrimination, Plaintiff must show that (1) she was a member of a protected
class, (2) she was qualified for the position or was performing competently in
the position 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 Nat. Inc. (2000) 24
Cal.4th 317, 355.) If
proved, Plaintiff will have established a presumption of discrimination. Protected
classes include pregnancy or a medical condition. (Gov. Code, § 12940 subd. (a).) Additionally, an employer may
not discriminate based on an employee’s association with another person “who
has, or is perceived to have,” any of the protected characteristics. (Gov. Code, § 12926 subd (o).)
Defendants argue Plaintiff did not
suffer any adverse employment action. For an action to be “adverse,” there must
be a material change in the terms of employment that is both “detrimental and
substantial.” (Thomas
v. Department of Corrections
(2000) 77 Cal.App.4th 507, 511, [The adverse action must be "more disruptive than a mere
inconvenience or an alteration of job responsibilities. A materially adverse
change might be indicated by a termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices
that might be unique to a particular situation.”].) The
term is construed broadly to include the “entire spectrum of employment actions
that are reasonably likely to adversely and materially affect an employee's job
performance or opportunity for advancement in his or her career.” (Yanowitz
v. L'Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1054.)
Plaintiff alleges she took protected
leave by sometimes calling out of work to help care for her father, who was
undergoing cancer treatment. (Complaint, ¶ 13.a.) Plaintiff alleges that she
was “written up” by her supervisors for taking leave in November of 2020. An
employer’s oral or written criticism of an employee is actionable "only
where the ‘employer wrongfully uses the negative evaluation to substantially
and materially change the terms and conditions of employment....’" (Pinero
v. Specialty Restaurants Corp.
(2005) 130 Cal.App.4th 635, 646.)
Plaintiff also alleges that she took
pregnancy leave from June 2021 through November 2021, and upon her return, she
did not receive her original schedule back. (Complaint, ¶ 13.2.a.) Plaintiff
alleges she was forced to resign because her working environment had become
intolerable. (Complaint, 5:20-24.)
A constructive discharge occurs when, "looking
at the totality of circumstances, ‘a reasonable person in [the employee's]
position would have felt that he was forced to quit because of intolerable and
discriminatory working conditions.’ " (Turner
v. Anheuser-Busch, Inc. (1994) 7
Cal.4th 1238, 1246.)
The parties dispute the conduct
constituting “adverse actions.” According to the Plaintiff, the conduct is not
limited to “write ups” but also included Defendants’ ignoring Plaintiff’s
repeated requests for assistance, which impacted her job performance, and she
was written up for the impact of the lack of assistance while being held to
performance standards. She complained about a discriminatory comment made to
her by a male employee, and Defendants never investigated it. Plaintiff gave
Defendants notice of a CFRA-qualifying reason for leave, but Defendants never
inquired about whether she would be requesting such leave. And finally, her
schedule requests were denied upon her return from maternity leave, and her
requests were not brought to the attention of human resources. (Opp. 1:3-22.)
Plaintiff raises new claims in opposition
that do not appear in the complaint, such as for ignoring repeated requests for
assistance, being written up for performance, discriminatory comments by a male
employee, and Defendants’ failure to ask if she would be requesting CFRA leave.
Regardless, as Defendants address these new claims in their separate statement,
the court will also analyze these claims.
With respect to purported comments by co-workers,
there is no dispute that Plaintiff did not report them. Plaintiff does not
dispute this fact but claims she did not feel comfortable bringing the comments
to the attention of her supervisor, or that person’s supervisor. (DF[1] 7).
With respect to the discriminatory
comments, there is no dispute as to the content of the comments. Gibbs and
another co-worker (“Solis”) allegedly told Plaintiff —“[t]he daddy was a big
black man,” “that’s how Responding Party liked her men,” “got pregnant because
she liked to go out and drink,” and “Oh, Tyrone broke your back?”—to Plaintiff.
(DF 11-12.) It is not clear when the statements occurred or how close in time it
occurred to her ultimate separation from Defendant.
Construed liberally, the comments
referred to Plaintiff’s racial preference. The second comment regarding why
Plaintiff got pregnant and the last comment about “Tyrone” is vague without a
factual context in which these comments were purportedly made. In assessing an alleged adverse action,
"‘mere utterance of an ... epithet which engenders offensive feelings in
an employee,’ ... does not sufficiently affect the conditions of employment to
implicate Title VII.... .” (Yanowitz
v. L'Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1053.) The
comments appear offensive and inappropriate, but without more, are not
sufficient to infer discriminatory animus. More importantly, it is not clear
how these comments materially and substantially affected Plaintiff’s employment
when there is no dispute that Plaintiff did not report them. (UF 7.)
The alleged “writeups” occurred in
November 2020, a year before Plaintiff separated from her employment. There is
no dispute that these “write ups” did not materially and substantially affect Plaintiff’s
employment, as she admittedly continued to work for a year, went out on
pregnancy leave, and returned in November 2021, undermining any contention that
the working conditions were “intolerable.” The remoteness of the writeups
undermine the contention that they created adverse conditions resulting in a
constructive discharge.
In Vaughn
v. Pool Offshore Co., a Div. of Pool Co. of Texas (5th Cir. 1982) 683 F.2d 922, the alleged discriminatory conduct occurred from June 22, 1977 when
the plaintiff was hired until he resigned on November 9, 1977, nearly five
months later. (Id. at
923). In affirming the trial court’s judgment in
favor of the employer and finding the plaintiff failed to establish a prima facie
case of employment discrimination, the appellate court found no violation in
part stating “we cannot but observe that all but the television incident
occurred during Vaughn's first few weeks on the job. The resignation came
months later." (Id. at
926.)
Here, the “write ups” were meted out in
November of 2020, and Plaintiff left Defendants’ employ a year later on
November 16, 2021, which Plaintiff does not materially dispute. (DF 5.)
Moreover, Plaintiff cited only the schedule change as the basis for quitting.
(DF 5.) Plaintiff asserts that she was left with no other option other than to
constructively terminate, but this assertion does not dispute the material fact
proffered by Defendant. (PF 5.)
This leaves Plaintiff’s inability
to obtain the schedule of her choice upon her return from leave. To clarify, prior to Plaintiff’s maternity
leave, Plaintiff contends Diep previously promised a return to her schedule of
7:00 a.m.-3:30 p.m. However, upon her
return, Plaintiff was given a new schedule from 10 a.m. – 6 p.m. (PF 42.)
Plaintiff argues that Defendants failed to inform her that she could make a
request for accommodation by contacting human resources to make that request.
(PF 46.)
Plaintiff must first request leave at
least by verbal notice. (Moore
v. Regents of University of California (2016) 248 Cal.App.4th 216, 249, [“[A]n employee shall provide at least verbal notice sufficient to
make the employer aware that the employee needs CFRA leave, and the anticipated
timing and duration of the leave. The employee need not expressly assert
rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice
requirement; however, the employee must state the reason the leave is
needed, such as, for example, the expected birth of a child or for medical
treatment."].) Plaintiff does not cite authority that requires the
employer to initiate leave to accommodate Plaintiff’s inability to work under
her new schedule.
Adverse employment actions must be
“unusually aggravated” or amount to a “continuous pattern before a situation
will be deemed intolerable.” (Turner
v. Anheuser-Busch, Inc. (1994) 7
Cal.4th 1238, 1247, [“a
single, trivial, or isolated act of misconduct is insufficient to support a
constructive discharge claim.”].) The denial of a desired schedule change,
where Plaintiff did not request an accommodation in scheduling given her
post-partum condition, does not reach the level of “unusually aggravated”
condition. Moreover, Defendants contend that they offered Plaintiff a
compromise by offering a schedule starting at 8:30 a.m. (DF 3.) Plaintiff’s
opposing evidence does not dispute this material fact. Instead, Plaintiff
refers to her promised schedule and that she was never informed that no other
positions were open with the schedule she desired. Plaintiff’s evidence is
insufficient. Plaintiff did not submit pages 151-155 of the Diep deposition,
and the submitted excerpts of the Gibbs deposition does not address a schedule
change except that theoretically, because the facility is open from 7:00 to
6:30, an earlier schedule could have been accommodated. Accordingly, DF 3 is
undisputed.
There is no dispute that Plaintiff did
not suffer an “adverse employment action” sufficient to constitute a
constructive discharge. Without an adverse employment action, Plaintiff cannot
meet her prima facie burden of discrimination on any basis (associational,
pregnancy, or gender).
D.
Retaliation
in violation of FEHA.
The FEHA prohibits retaliation against an
employee who opposes any practice forbidden under the FEHA. (Gov Code § 12940.
Subd. (h).) A prima facie case requires Plaintiff to prove that she engaged in
a protected activity, her employer subjected her to adverse employment action,
and there is a causal link between the protected activity and the employer's
action. (Iwekaogwu
v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814.) As an adverse
employment action is also a necessary element of this claim, and there is no
dispute that Plaintiff was not subjected to an adverse employment action, this
claim also fails.
E.
Failure
to prevent discrimination and retaliation.
While failing to prevent discrimination
and retaliation is made actionable under the FEHA, the lack of an adverse
employment action renders the discrimination and retaliation claims non-viable
as Plaintiff’s evidence does not show discrimination in the first instance
without an adverse employment action. (Gov. Code, § 12940.) As Defendants correctly argue, the second
and third causes of action are derivative of the first cause of action for
discrimination.
F.
CFRA
leave retaliation
To prevail on this claim, Plaintiff must
prove the following: “(1) the defendant was an employer covered by CFRA; (2)
the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff
exercised her right to take leave for a qualifying CFRA purpose; and (4) the
plaintiff suffered an adverse employment action, such as termination, fine, or
suspension, because of her exercise of her right to CFRA leave.” (Faust
v. California Portland Cement Co.
(2007) 150 Cal.App.4th 864, 885.) There is no dispute that Plaintiff cannot meet the fourth element
requiring an adverse employment action.
There is no dispute that Plaintiff did
not exercise her right to take leave for a CFRA purpose. Plaintiff’s evidence
is insufficient to dispute Defendants’ contention that Plaintiff did not
request CFRA or any sort of medical leave to take care of her father. (DF 30.)
Plaintiff’s evidence in opposition does not address this material fact.
Instead, Plaintiff argues that her supervisors knew that Plaintiff’s father was
ill, they received training on the CFRA and failed to advise Plaintiff that
this type of leave was available. As previously explained, an employer’s
obligation to act requires Plaintiff to request such leave. (Moore
v. Regents of University of California (2016) 248 Cal.App.4th 216, 249.)
There is no dispute that Plaintiff never
requested or took baby bonding leave after pregnancy. (DF 31.) Plaintiff
asserts only that she informed Defendants that she had secured childcare based
off of the promised schedule. (PF 35.) This evidence is not responsive to the
fact asserted.
Plaintiff requested only a 12-week
maternal leave. (DF 33.) Plaintiff’s evidence in opposition is not responsive.
G.
Labor
Code § 1102.5
This section prohibits an employer from
retaliating against an employee for exercising rights to disclose information
to an agency, or for refusing to participate in an activity that would result
in a violation of law. (Lab. Code, § 1102.5 subd. (d).)
Plaintiff has not proffered any evidence
to dispute Defendants’ contention that Plaintiff is unable to identify any
adverse employment action to which she was subjected after she purportedly
complained about being “written up” for taking time off to care for her
disabled father. (DF 35.) Plaintiff’s evidence in opposition is non-responsive.
Nor has Plaintiff proffered responsive
evidence to dispute that she cannot identify any adverse employment action that
occurred after she complained that Defendants retaliated against her by
changing her schedule. (DF 36.) There is no evidence to infer discriminatory
animus.
H.
Wrongful
termination in violation of public policy.
Defendants proffer the identical facts
1-29 as previously set forth in Defendants’ separate statement. To establish a
prima facie case, Plaintiff must show (1) an employer-employee relationship, (2)
the termination of plaintiff's employment was a violation of public policy
which satisfies a set of requirements to support a tortious discharge claim,
and (3) the termination of employment was a legal cause of plaintiff's damage. (Holmes v. General Dynamics Corp., (1993) 17 Cal. App. 4th 1418, 1427.) The
undisputed facts establish that Plaintiff was not terminated; rather she
resigned. There is no evidence to dispute that she did not suffer an adverse
employment action sufficient to constitute a constructive discharge, and
therefore, her “termination” was not wrongful. (DF 3, 5, 7, 15, 20, 24).
I.
Intentional
infliction of emotional distress
To prevail on this claim, plaintiff must prove
facts showing (1) extreme and outrageous conduct with the intention of causing,
or reckless disregard of the probability of causing emotional distress, and (2)
plaintiff suffered severe or extreme emotional distress as a proximate result.
(Christensen
v. Superior Court (1991) 54
Cal.3d 868, 903.) Conduct
is “extreme and outrageous” where a defendant (1) abuses a relation or position
which gives him power to damage the plaintiff’s interest; (2) knows the
plaintiff is susceptible to injuries through mental distress; or (3) acts
intentionally or unreasonably with the recognition that the acts are likely to
result in illness through mental distress.” (Agarwal
v. Johnson (1979) 25 Cal.3d 932,
946.)
There is no dispute that Plaintiff did
not suffer “severe or extreme emotional distress.” She did not take any
medication for her emotional distress, and her only symptoms were stress,
sleeplessness, and loss of appetite. (DF 38-39.) Plaintiff’s evidence in
opposition contends that Plaintiff suffered more symptoms but does not describe
what they were sufficient to create a triable issue. Accordingly, this claim
also fails.
V.
CONCLUSION
Based on the foregoing, Defendants’
motion for summary judgment is GRANTED as to all claims alleged in the
complaint.