Judge: Richard Y. Lee, Case: 30-2020-01146234, Date: 2022-08-18 Tentative Ruling

Defendants Federal Express Corporation (“FEDEX”) and Andrew Sweet (“SWEET”) (collectively “Defendants”) seek summary judgment on Plaintiff Mitchell Freem’s (“Plaintiff” or “FREEM”) Complaint, 1st through 5th causes of action, or alternatively, summary adjudication as to the 1st through 5th causes of action as well as on the issue of punitive damages as follows:

 

Issue 1: Defendant FEDEX is entitled to summary adjudication on Plaintiff’s 1st CoA for age discrimination because FREEM cannot state a prima facie case, FEDEX had legitimate, non-discriminatory reasons for firing FREEM, and FREEM has no substantial evidence of evidence of pretext.

 

Issue 2: Defendant FEDEX is entitled to summary adjudication on Plaintiff’s 1st CoA for age discrimination because FREEM cannot state a prima facie case, FEDEX had legitimate, non-discriminatory reasons for not promoting FREEM to fleet manager, FREEM has no substantial evidence of pretext, and FREEM failed to timely exhaust his administrative remedies.

 

Issue 3: Defendant FEDEX is entitled to summary adjudication on Plaintiff’s 2nd CoA for harassment based on age because Plaintiff failed to timely exhaust his administrative remedies, and the alleged comments were not based on age and were neither severe nor pervasive.

 

Issue 4: Defendant FEDEX is entitled to summary adjudication on Plaintiff’s 3rd CoA for retaliation because FREEM cannot show the required causal connection between the protected activity and the adverse employment action, FEDEX had legitimate, nonretaliatory reasons for firing FREEM, and FREEM has no substantial evidence of pretext.

 

Issue 5: Defendant FEDEX is entitled to summary adjudication on Plaintiff’s 4th CoA for failure to prevent discrimination, harassment, and retaliation because FREEM’s underlying claims for discrimination, harassment, and retaliation based on age fail, and FEDEX took reasonable actions once the complained of conduct was reported.

 

Issue 6: Defendant FEDEX is entitled to summary adjudication on Plaintiff’s 5th CoA for wrongful termination because FREEM’s underlying claims for discrimination, harassment, and retaliation based on age fail.

 

Issue 7: Defendant FEDEX is entitled to summary adjudication on Plaintiff’s requests for punitive damages because no officer, director, or managing agent of FEDEX was involved in the alleged conduct and/or such conduct does not rise to the level of outrageous or despicable conduct by clear and convincing evidence.

 

Issue 8: Defendant SWEET is entitled to summary adjudication on Plaintiff’s 2nd CoA for harassment based on age because Plaintiff failed to timely exhaust his administrative remedies, and the alleged comments were not based on age and were neither severe nor pervasive.

 

Issue 9: Defendant SWEET is entitled to summary adjudication on Plaintiff’s requests for punitive damages because the alleged conduct does not rise to the level of outrageous or despicable conduct by clear and convincing evidence.

 

Plaintiff’s Evidentiary Objections.

As to all seven of Plaintiff’s evidentiary objections, the Court finds that Plaintiff failed to comply with California Rules of Court, Rule 3.1354(b) which states that “specific evidence must be referenced by the objection number.”  Plaintiff failed to number his evidentiary objections, i.e., Objection No. 1, 2, and 3. Plaintiff’s objections only refer to the specific paragraph and language of the declaration being objected to. Irrespective of this failure to comply with Rule 3.1354(b), the Court will rule on the merits of the objections but cautions Plaintiff to comply with the Rules of Court.

 

As to the Declaration of Andrew Sweet, the Court OVERRULES all objections.

 

As to the Declaration of Neil Gibson, the Court the Court OVERRULES all objections.

 

As to the Declaration of Sidney B. Smith, III, the Court OVERRULES all objections.

 

As to the Declaration of Scott McHale, the Court OVERRULES all objections.

 

As to the Declaration of Kathy Miller, the Court OVERRULES all objections.

 

As to the Declaration of Robert Leveille, the Court OVERRULES all objections.

 

And, lastly, as to the Declaration of Craig Lindberg, the Court OVERRULES all objections.

Defendants’ Objections to Plaintiff’s Opposition.

Defendants submit 42 objections to statements made in Plaintiff’s Opposition. The Opposition is not evidence. California Rules of Court, Rule 3.1354(a) allows for objections to “evidence in support of or in opposition to a motion”. The Court OVERRULES all purported objections to Plaintiff’s Opposition.

 

Whether Plaintiff’s 1st and 2nd Causes of Action for Age Discrimination and Harassment are Barred for Failure to Timely Exhaust Administrative Remedies? [Part of Issue Nos. 1, 2, and 3.]

 

“Under Government Code section 12960, subdivision (d), ‘a plaintiff suing for violations of FEHA ordinarily cannot recover for acts occurring more than one year before the filing of the DFEH complaint.’” (Blue Fountain Pools & Spas Inc. v. Superior Ct. of San Bernardino Cty. (2020) 53 Cal.App.5th 239, 250.)

 

Defendants contend that FREEM’s 1st and 2nd causes of action for age discrimination and harassment based on FEDEX’ failure to promote him to manager in August 2017 fail because he did not timely exhaust his administrative remedies. Defendants produce evidence that FREEM applied for the manager position Defendant SWEET received on August 3, 2017; that SWEET officially became the district fleet manager on September 1, 2017; but that FREEM did not file his DFEH complaint until May 22, 2019—almost two years later. (See SUF Nos. 2, 12, and 20.) These facts are undisputed. (See Response to SUF Nos. 2, 12, and 20.)

 

Although FREEM does not dispute the above facts and assuming arguendo that the statute of limitations on the failure to promote claims accrued prior to May 22, 2019 (the date FREEM filed his DFEH Complaint), the Court cannot grant summary adjudication on these grounds because it would not dispose entirely of Plaintiff’s claims for age discrimination and harassment.  Here, FREEM’s causes of action are not based solely on FEDEX’s failure to promote.  Rather, FREEM alleges Defendants engaged in age discrimination by falsely contending that he falsified his timecards and retaliating against him for reporting unlawful employment practices and using that as a pretext for his termination and further alleges that Defendant SWEET harassed him based on his age. (See Complaint, ¶¶ 17, 19 [“Plaintiff was consistently berated and ignored for reporting such issues by management and his supervisors.”], 22-29, 20, 32, 33, 40, 41 [“As such, under even slight scrutiny Defendant FEDEX’s reason for termination is a pretext for discrimination based on Plaintiff’s age and in retaliation for resisting and reporting unlawful conduct in the workplace.”], 42, 45 [“Defendants terminated Plaintiff based on his age and in retaliation for reporting workplace labor violations, on May 25, 2018.”].)

 

“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.” Accordingly, because Plaintiff’s claims for age discrimination and harassment are not limited to the failure to promote allegations, the Court cannot grant summary adjudication based on this ground.

 

Moreover, and irrespective of the above, FREEM contends that the continuing violation doctrine would apply in any event to toll the statute of limitations since the final act of discrimination and harassment occurred on May 24, 2018—the date he was terminated and his DFEH Complaint was filed on May 22, 2019—within the one-year time frame.

 

Here, as set forth above, Plaintiff’s claims of age discrimination and harassment are not limited to FEDEX’s failure to promote him in September of 2017 but include continuing acts of alleged age discrimination and harassment which culminated with his termination on May 24, 2018. “[W]hen an employer engages in a continuing course of unlawful conduct under the FEHA...the statute of limitations begins to run, not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer's cessation of such conduct or by the employee's resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823–24.) As such, Plaintiff’s claims would not be barred by failing to timely exhaust his administrative remedies as Plaintiff filed his DFEH Complaint within one year of his termination. (See supra.) Accordingly, the Court DENIES summary adjudication on these grounds.

 

1st Cause of Action for Age Discrimination-Issue Nos. 1 and 2.

The FEHA makes it an unlawful employment practice to discharge a person from employment or discriminate against the person in the terms, conditions, or privileges of employment, based on “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation.” (Gov. Code § 12940(a).)

 

To establish a prima facie case of discrimination, a plaintiff “must generally provide evidence that: (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City & Cty. of San Francisco (2016) 5 Cal.App.5th 368, 378.)

 

In FEHA discrimination claims, courts must apply the McDonnell Douglas burden-shifting framework. Under this framework, the plaintiff must prove a prima facie case; the employer must then articulate a legitimate, nonretaliatory reason for the action; and the plaintiff must then prove the employer’s reason is a pretext. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 942; see Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476.)

 

A defendant’s summary judgment motion “slightly modifies the order of these [McDonnell Douglas] showings.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160). “Consequently, [Defendant has] the initial burden to either (1) negate an essential element of [Plaintiff’s] prima facie case [] or (2) establish a legitimate, non[retaliatory] reason for terminating [Plaintiff].” (Id.).

 

“[T]o avoid summary judgment [once the employer makes the foregoing showing], an employee claiming [retaliation] must offer substantial evidence that the employer’s stated non[retaliatory] reason for the adverse action was untrue or pretextual, or evidence that the employer acted with a [retaliatory] animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional [retaliation].” (Id.). Both direct and circumstantial evidence can be used to show an employer's intent to retaliate. Circumstantial evidence typically relates to such factors as the plaintiff's job performance, the timing of events, and how the plaintiff was treated in comparison to other workers. (Colarossi v. Coty US Inc., supra, 97 Cal.App.4th at 1153.)

 

Here, Defendants contend that FREEM’s claim for age discrimination fails because Plaintiff cannot state a prima facie case; FEDEX had legitimate, non-discriminatory reasons for firing FREEM; and FREEM has no substantial evidence of pretext.

 

Prima Facie Case of Age Discrimination.

Defendants contend there is no evidence they engaged in age discrimination based on the following evidence: FREEM, who was 53 years old when he was fired, was replaced with another mechanic who is over the age of 40; FEDEX hired Michael Green who is 41 years old to replace FREEM; none of Defendant SWEET’s comments that FREEM complained of involved age or infer age-based animus; Defendant SWEET did not treat FREEM differently from the other technicians who were younger; FREEM has no evidence that Defendant SWEET failed to investigate a younger mechanic who had falsified his timecards and PM Forms and failed to fire that mechanic; and there is evidence that FEDEX employs mechanics over the age of 50 and even hired several mechanics over the age of 50 after FEDEX fired FREEM. (See SUF Nos. 3, 72, 85-104, 111-115, 134, 137, 138-142, 144-146, and 163.)

 

Although Plaintiff does not dispute these specific facts, Plaintiff does dispute the facts in support of summary adjudication on this issue. (See infra.) Plaintiff contends he can establish a prima facie case of discrimination because he is a member of a protected class, i.e., was 53 years old when he was terminated; contends he was more than qualified for his position as a vehicle technician as he had been employed by FEDEX for over 18 years; contends he suffered adverse employment action when he was terminated after Defendants conducted a sham investigation concluding that he falsified records and then destroyed the video which allegedly corroborates that he falsified the records; and contends that Defendants denied him a promotion and terminated him because of his age and replaced him with a technician who was twelve years younger than him.

 

Here, FREEM was 53 years old when he was terminated and that FEDEX hired Michael Green who is only 41 years old as his replacement. (See Response to SUF Nos. 3, 137, and 138; see also Leveille Decl., ¶¶14 and 15.) Contrary to Defendants’ assertions, the fact that FEDEX hired a technician who is over 40 years of old and in the same protected class does not negate Plaintiff’s claim for age discrimination. The Supreme Court in O'Connor v. Consol. Coin Caterers Corp. (1996) 517 U.S. 308, 312 stated:  “As the very name ‘prima facie case’ suggests, there must be at least a logical connection between each element of the prima facie case and the illegal discrimination for which it establishes a ‘legally mandatory, rebuttable presumption,’ [citation omitted]. The element of replacement by someone under 40 fails this requirement. The discrimination prohibited by the ADEA is discrimination ‘because of [an] individual's age,’ 29 U.S.C. § 623(a)(1), though the prohibition is ‘limited to individuals who are at least 40 years of age,’ § 631(a). This language does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age. Or to put the point more concretely, there can be no greater inference of age discrimination (as opposed to “40 or over” discrimination) when a 40–year–old is replaced by a 39–year–old than when a 56–year–old is replaced by a 40–year–old.”].”

 

Although O’Connor, supra, dealt with the ADEA and not FEHA, Government Code section 12940(a) similarly prohibits discrimination based on age only and does not ban discrimination because the employees are 40 or older. Here, the fact that FEDEX replaced Plaintiff with an employee who was 41 years old does not negate a finding of discrimination based on age.

 

Further, Plaintiff disputes that he did not suffer any adverse employment action because of his age and disputes that he falsified his timecards and PM Forms. (See Response to SUF Nos. 49, 51, 54-61, 62-64, 67, 68, 122, and 124.)  Plaintiff contends that Defendant SWEET’s comments did display age-based animus because he consistently yelled at him for being too slow, that this inferred he was too old to work slower, and the insinuation was that he was old and slow. (See Freem Depo., Vol. 2, 130:11-20 and 175:11-22.)  Plaintiff also contends that he was following the practices and procedures that SWEET told him to implement which included reporting time for miscellaneous jobs around the shop as a PM. (See Freem Decl., ¶ 16; see also Freem Depo., Vol. 2, 228:1-11.)

 

Plaintiff also disputes that FEDEX’s internal investigation found no evidence that Defendant SWEET discriminated (or harassed) him based on his age. (See Response to SUF No. 108.)  Plaintiff produces evidence that SWEET admitted to only reprimanding him for PM Form issues; that SWEET admitted that he believed he was terminated for his treatment of him; that SWEET admitted he only investigated him for discrepancies on his timecards compared to the repair orders; that SWEET admitted that every vehicle technician would have inconsistencies on their timecards compared to their repair orders; that SWEET admitted that the alleged video of Plaintiff was destroyed; that SWEET admitted that he did not interview any other witnesses to corroborate that Plaintiff was falsifying his timecards and PM Forms; that SWEET admitted that it’s possible that he asked others if he was too hard on Plaintiff; and that SWEET admitted that it’s possible that he said “I’m fucking firing Mitch and that will be the last time he asks me to work a Saturday”.) (See Additional Material Fact (“AMF”) Nos. 173, 176, 177-179, 180, 181, 188, 189.)

 

Accordingly, the Court finds there is a triable issue as to whether Plaintiff can establish a prima facie case of age discrimination.

 

Legitimate Business Reason for Termination and Pretext.

Even assuming arguendo that Plaintiff can establish a prima facie case of age discrimination, Defendants contend they had a legitimate, nondiscriminatory business reason for terminating Plaintiff.  Defendants produce evidence that FREEM was terminated for falsifying timecards, repair orders, and Department of Transportation (“DOT”) preventative maintenance forms (“PM Forms”) on February 3, 2018, February 24, 2018, February 28, 2018, and March 24, 2018; that during routine audits, Defendant SWEET found discrepancies in FREEM’s timecards and PM Forms and, as part of his investigation, he reviewed security video of FREEM performing his work and compared them to the time entries on FREEM’s timecards; that Defendant SWEET created an excel spreadsheet to document the discrepancies he observed; that the time entries by FREEM did not match exactly to the PM FORMS (and the time spent on the tasks were less than documented); and Defendants determined that FREEM had falsified the records. (See SUF Nos. 21, 41-68, 72, 73, 158, and 159.)

 

Here, Plaintiff contends he did not falsify timecards and PM Forms and contends this is pretextual, and that Defendants terminated him for, inter alia, his age and for making multiple complaints to SWEET that his working conditions were unsafe and for complaining that he had experienced multiple wage and hour violations. (See Response to SUF Nos. 53-68.)

 

Pretext can be established by demonstrating “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’...and hence infer ‘that the employer did not act for...the asserted non-discriminatory reasons.’”  (Johnson v. United Cerebral Palsy/Spastic Children's Found. of Los Angeles & Ventura Ctys. (2009) 173 Cal.App.4th 740, 755.)

 

As evidence of pretext, Plaintiff presents evidence that he was consistently told by SWEET to record miscellaneous tasks as a PM; that he was the only technician to be reprimanded for this policy even though other technicians engaged in the same practice; that for thirteen years, Plaintiff logged miscellaneous tasks as a PM and was never reprimanded or investigated for engaging in this process until this occasion; that he was an exceptional employee of FEDEX for over eighteen years and never received unsatisfactory reviews; that he worked well with every manager throughout his employment until the last twenty months of his employment under SWEET; and that shortly after complaining of the age-related comments, safety concerns of working alone, and wage and hour violations, he was investigated by SWEET for a practice he was told to utilize and then ultimately terminated. (See AMF Nos. 173, 174, 177, 178, 180, 182; see also Freeman Decl., ¶¶ 3-5, 9, 10, 17-21, 26-29, 32, 43, and 44.)

 

The fact that Plaintiff disputes that he falsified timecards of PM Forms is not sufficient to create a triable issue of fact or to show pretext. “For purposes of establishing the moving employer's initial burden of proof, it does not matter whether plaintiff actually did commit an integrity violation as long as [the employer] honestly believed he did.” (King v. United Parcel Serv., Inc. (2007) 152 Cal.App.4th 426, 433.) In King, the Court held that an employer satisfied its burden if “the decision makers entertained an honest belief that plaintiff” had violated the company’s policy. (Id. [“For purposes of establishing the moving employer's initial burden of proof, it does not matter whether plaintiff actually did commit an integrity violation as long as UPS honestly believed he did.”].)

 

Here, Plaintiff does not produce any evidence that Defendants did not honestly believe that Plaintiff had violated FEDEX policy by falsifying his timecard, repair orders, and PM Forms. Further, contrary to Plaintiff’s assertions, Defendants did not terminate Plaintiff for logging miscellaneous tasks as a PM and Plaintiff presents no evidence that this was the reason for his termination.

Further, although Plaintiff contends that SWEET did make age related comments because he called him “slow,” Plaintiff does not present any evidence that SWEET called him slow because he was old. A “plaintiff's subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.” (King v. United Parcel Serv., supra, 152 Cal.App.4th at 433.)

 

Plaintiff also fails to present any evidence that he was terminated shortly after complaining of age-related comments, working alone, or of wage and hour violations as the evidence cited to support this dispute does not support same. (See, e.g., Freem Depo., Vol. 2, 130:6-131:2.)

 

Accordingly, based on the evidence presented, the Court finds that Plaintiff failed to establish that Defendants stated legitimate reason for discharge was insufficient or that there is a triable issue of fact as to Defendants’ motive, i.e., that a discriminatory reason more likely motivated the employer or that the employer’s explanation is not worthy of credence. The Court “can find a triable issue of material fact ‘if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation omitted.] And....plaintiff's evidence must relate to the motivation of the decision makers to prove, by nonspeculative evidence, an actual causal link between prohibited motivation and termination.” (King, supra, 152 Cal.App.4th at 433–34.) The Motion for summary adjudication as to the 1st cause of action for age discrimination is therefore GRANTED, Issue Nos. 1 and 2.

 

2nd Cause of Action for Harassment based on Age-Issue Nos. 3 and 8.

The FEHA prohibits harassment based on “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation or military and veteran status.” (Gov. Code § 12940(j)(1).)

 

To establish a prima facie case of a harassment, the plaintiff must establish that (1) he was a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on the protected class; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the defendants are liable for the harassment. (See, e.g, Thompson v. City of Monrovia (2010) 186 Cal. App. 4th 860, 876.)

 

Here, Defendants contend that Plaintiff’s claim for harassment fails because SWEET’s comments were not based on Plaintiff’s age and no reasonable male over the age of 50 in Plaintiff’s circumstances would have considered the work environment to be objectively hostile, intimidating, offensive, oppressive or abusive. (See SUF Nos. 85-104.) In Opposition, Plaintiff contends that SWEET calling him slow inferred he was slow because he was old and that there were nineteen different occasions where he felt harassed by SWEET.

 

Plaintiff’s complaints of “harassment” by SWEET include yelling at him to not call him because he had a life, telling others that Plaintiff would never become a manager, stating “I’m fucking fire Mitch and that will be the last time he will ask me to work another Saturday again!”, telling Plaintiff he had already given the Saturday overtime to two other technicians, yelling at him and telling him he has a “heavy hand”, watching him on the camera system, and being denied overtime when asked to do so. (See SUF Nos. 85-104.) “[O]ffhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788.)

 

To establish harassment, the employee “must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee” and it “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.” (Thompson, supra, 186 Cal.App.4th at 877.) Here, Plaintiff does not produce any evidence that SWEET’s conduct interfered with his work performance and that the conduct would have “seriously affected the psychological well-being of a reasonable employee”. Accordingly, the Court GRANTS summary adjudication as to the 2nd cause of action for harassment, Issue Nos. 3 and 8.

 

3rd Cause of Action for Retaliation-Issue No. 4.

The FEHA makes it unlawful for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code § 12940(h); Scotch v. Art Institute of California, supra, 173 Cal.App.4th at 1003.)

 

“To establish a prima facie case of retaliation, the 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) there exists a causal link between the protected activity and the employer's action.” (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1152.)

 

Here, Defendants contend that Plaintiff’s claim for retaliation fails because he cannot show a causal connection between the “protected activity,” i.e., FREEM’s filing of an internal EEO complaint against SWEET on May 10, 2018, and his termination because FREEM had already been suspended with pay prior to the filing of the complaint. (See SUF Nos. 72 and 74.)  Plaintiff, however, contends that the “protected activity” he engaged in is not limited to the filing of the EEO complaint as he made complaints about SWEET’s actions, wage and hour violations, and unsafe working conditions throughout his last two years of employment.  (See Freem Depo., Vol. 2, 103:6-131:2.)

 

Plaintiff, however, does not present any evidence that he made complaints of SWEET’s actions, wage and hour violations, unsafe working conditions throughout his last 2 years of employment. The evidence cited in support of this dispute does not mention that Plaintiff made complaints of wages or unsafe conditions. (See Freem Depo., Vol. 2, 130:6-131:2.)

 

Accordingly, the Court finds that Plaintiff failed to show that a triable issue exists as to 3rd cause of action for retaliation and summary adjudication is GRANTED as to Issue No. 4.

 

4th Cause of Action for Failure to Prevent Discrimination or Retaliation-Issue No. 5.

It is also unlawful for an employer to “to fail to take all reasonable steps necessary to prevent discrimination…from occurring.” (Gov. Code § 12940(k).) However, a finding of actual discrimination, harassment, or retaliation under FEHA is required before a plaintiff may prevail on a claim for failure to prevent discrimination, harassment, or retaliation. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.)

 

Here, as set forth above, the Court finds there are no triable issues with respect to the age discrimination or retaliation causes of action. Accordingly, since there is no underlying claim, summary adjudication is GRANTED as to the 4th cause of action for failure to prevent discrimination or retaliation, Issue No. 5.

 

5th Cause of Action for Wrongful Termination-Issue No. 6.

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. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 154.)

 

There is no right to terminate for an unlawful reason or a purpose that contravenes fundamental public policy. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1370.) A cause of action for wrongful termination must be based on a policy carefully tethered to a constitutional or statutory provision. (Id. at 1371-1372.)

 

Here, as set forth above, the Court finds there is no triable issue with respect to Plaintiff’s claims for age discrimination, retaliation, and failure to prevent discrimination or retaliation. As such, the Court GRANTS summary adjudication as to the wrongful termination cause of action, Issue No. 6.

 

Punitive Damages-Issue Nos. 7 and 9.

In tort actions, where defendant is shown “by clear and convincing evidence” to have acted with “oppression, fraud or malice,” plaintiff may recover, in addition to compensatory damages, “damages for the sake of example and by way of punishment.”  (Civil Code section 3294(a).) 

 

“Malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or “despicable conduct” which is carried on by the defendant with a “willful and conscious disregard of the rights” or safety of others.  (Civil Code section 3294(c)(1).)  

 

“Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  (Civil Code section 3294(c)(2).)  

 

“Fraud” is defined as an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.  (Civil Code section 3294(c)(3).)   

 

“Punitive damages are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.... Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate. ….” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) 

 

Punitive damages may be imposed upon an employer for acts of an employee or agent only if the employer [or if the employer is a corporation, an officer, director or managing agent of the corporation]: (1) had advance knowledge that the agent or employee was likely to inflict injury on others and employed him or her with conscious disregard for the rights or safety of others; or (2) authorized or ratified the agent's or employee's wrongful acts; or (3) was personally guilty of “oppression, fraud or malice” toward plaintiff.  (Civil Code section 3294(b); Flores v. Autozone West, Inc. (2008) 161 Cal.App.4th 373, 386.) 

 

Here, Defendants contend that the punitive damages cannot be imposed because Plaintiff cannot identify a single FEDEX officer, director, or managing agent who ratified or authorized SWEET’s alleged wrongful conduct; that SWEET was an entry level manger whose decision did not determine corporate policy; that SWEET was never an officer, director, or manager of FEDEX; and that senior manager Robert Leveille and managing director Neil Gibson were not involved in the alleged wrongful conduct, were never officers, directors or managers of FEDEX, and their decisions do not determine corporate policy. (See SUF Nos. 150-152, and 155-157.)

 

Plaintiff does not dispute these facts. (See Response to SUF Nos. 150-152, and 155-157.)

 

Accordingly, the Court GRANTS summary judgment. Summary adjudication is also granted as to the 1st through 5th causes of action for age discrimination, harassment, retaliation, failure to prevent discrimination/harassment/retaliation, and wrongful termination as well as on the issue of punitive damages, Issue Nos. 1-9.

 

Moving Party is to give notice.