Judge Robert B. Broadbelt, Case Number: 21STCV14665, Date: 2024-01-23 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 21STCV14665, Date: 2024-01-23 Tentative Ruling

MOVING PARTIES: Defendants James Hardie Building Products, Inc., Elizabeth Brown, and Steven Nunez

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court grants defendants James Hardie Building Products, Inc., Elizabeth Brown, and Steven Nunez’s requests for judicial notice. (Evid. Code, § 452, subds. (c), (d).)

The court rules on plaintiff Benjamin Trevino-Rocha’s evidentiary objections to the declaration of Elizabeth Brown, filed on January 24, 2024, as follows:

The court rules on plaintiff Benjamin Trevino-Rocha’s evidentiary objections to the declaration of Steve Nunez, filed on January 24, 2024, as follows:

The court rules on plaintiff Benjamin Trevino-Rocha’s evidentiary objections to the declaration of Ana Bueno, filed on January 24, 2024, as follows:

The court rules on plaintiff Benjamin Trevino-Rocha’s evidentiary objections to the declaration of William Munch, filed on January 24, 2024, as follows:

The court rules on plaintiff Benjamin Trevino-Rocha’s evidentiary objections to the declaration of Eion Battles, filed on January 24, 2024, as follows:

The court rules on defendants James Hardie Building Products, Inc., Elizabeth Brown, and Steven Nunez’s evidentiary objections, filed on February 2, 2024, as follows:

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. (2001) 25 Cal.4th 826, 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.)

“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 or cross-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 or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

Defendants James Hardie Building Products, Inc. (“Hardie”), Elizabeth Brown (“Brown”), and Steven Nunez (“Nunez”) (collectively, “Defendants”) move the court for an order granting summary judgment in their favor and against plaintiff Benjamin Trevino-Rocha (“Plaintiff”) on Plaintiff’s Complaint, or, in the alternative, summary adjudication as to each of Plaintiff’s nine causes of action and Plaintiff’s claim for punitive damages.

It is an unlawful employment practice “[f]or an employer, because of the . . . physical disability . . . [or] age . . . of any person . . . to bar or to discharge the person from employment . . ., or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).) “The specific elements of a prima facie case [of discrimination] ‘may vary depending on the particular facts,’ but generally include evidence that the plaintiff: (1) was a member of a protected class; (2) was qualified for the position he or she sought or was performing competently in the position he or she held; (3) suffered an adverse employment action; and (4) was subject to some other circumstance suggesting discriminatory motive.” (Diego v. City of Los Angeles (2017) 15 Cal.App.5th 338, 350.) Plaintiff alleges that he was discriminated against on the basis of age and disability. (Compl., p. 7, ¶ 4.)

The court finds that Hardie has met its burden of showing that the first cause of action for discrimination has no merit because Hardie has shown that it had legitimate, nondiscriminatory reasons for terminating Plaintiff.

Hardie has presented evidence showing that (1) in November 2018, Hardie decided to reduce the workforce at its plant; (2) to determine which employees to retain and which employees to lay off, Hardie relied on objective and quantifiable factors to analyze its employees’ performances from the period of January 1, 2018 to November 23, 2018, including (i) position skills / roles coverage, (ii) behavioral safety, (iii) attendance, and (iv) documented safety and performance deficiencies; (3) those four factors were weighted and used to calculate a retainability score; (4) employees with a score of 3.10 or below were selected for a layoff; and (5) Plaintiff scored 2.60 and therefore was laid off. (Def. Material Fact (“DMF”) Nos. 23-25, 27; Battles Decl., ¶¶ 10-11; Brown Decl., ¶¶ 14-16, 21; Brown Decl., Ex. J, p. JH_TREVINO 000175 [showing Plaintiff’s “Retainability Score” to be 2.60].)

The court finds that this evidence is sufficient to show that Hardie’s termination of Plaintiff was based on a legitimate, nondiscriminatory reason. (Foroudi v. Aerospace Corporation (2020) 57 Cal.App.5th 992, 1008 [defendant’s evidence showing that it instituted a company-wide reduction in force and selected plaintiff for layoff because he was one of the lowest ranked employees in the division constituted “legitimate, nondiscriminatory reasons explaining the termination and are sufficient to shift the burden back to” the plaintiff].)

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to the element of pretext. (Foroudi, supra, 57 Cal.App.5th at p. 1008 [in light of defendant’s showing of legitimate, nondiscriminatory reasons for its termination, the plaintiff could avoid summary judgment only by showing that the reasons were untrue or pretextual].)

Plaintiff contends that Hardie’s proffered reasons for terminating him were pretextual and that evidence shows Hardie’s discriminatory intent based on the following: (1) Hardie failed to rehire Plaintiff in an open position, for which they hired a younger, less qualified applicant; (2) Plaintiff was the third oldest employee subject to termination in the December 2018 reduction in workforce (“RIF”); (3) Hardie has admitted that part of the reason for terminating Plaintiff was based on his known disability since his termination was based, at least in part, on his absences for emergency surgery; (4) Hardie used incorrect information to calculate Plaintiff’s RIF score, including (i) by crediting Plaintiff with only three certifications when he had at least 12, and (ii) by falsely attributing Plaintiff with absences to justify a low attendance score; (5) temporal proximity supports an inference of pretext; and (6) there was a sudden and unprecedented campaign against Plaintiff, because, following years of satisfactory performance, Plaintiff was demoted, issued two written warnings, and terminated in a seven-week span of time.

First, Plaintiff has submitted his own declaration, in which he states that he applied to a Generalist Operator 0 position with Hardie, but that Hardie rehired Wilson Morales—a former Generalist Operator 1 with a higher retainability score—for the position. (Trevino-Rocha Decl., ¶¶ 20-21.) Plaintiff asserts that his “qualifications would have clearly dwarfed Mr. Morales’ at the time [he] was denied rehire.” (Id., ¶ 21.) The court finds that this evidence is insufficient to show a triable issue of material fact as to discriminatory animus. An “employee’s ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159.)

Second, Plaintiff has submitted evidence showing that (1) Plaintiff was a Specialist Operator 5 for Hardie, and (2) the only other employee working as a Specialist Operator 5, who was younger than Plaintiff at the age of 44, was retained during the December 2018 RIF. (Trevino-Rocha Decl., ¶¶ 2-3; Trevino-Rocha Decl., Ex. 12, p. TREVINO 000408.) The court finds that, alone, this is insufficient to show a triable issue of material fact as to discriminatory animus or pretext. However, as set forth below, the court finds that this evidence, together with other evidence and argument presented by Plaintiff, supports a finding of pretext.

Third, Plaintiff takes issue with the calculation of his retainability score in two respects: (i) as to the certifications credited to him, and (ii) as to the calculation of his unexplained absences.

As to certifications, Hardie has explained that, in reviewing factor 1 (the “Position Skills / Roles Coverage” factor), Hardie “considered an employee’s active certifications. Active certifications were those certified within the last 12-months or if an employee had actively worked in a position.” (Brown Decl., ¶ 17.) Plaintiff contends that he had, at the time of his termination, 12 certifications, but was credited only for three certifications. In support of that assertion, Plaintiff submits his own declaration, in which he states that he had certifications in and was fully capable of performing the following positions: Water Plant 1 & 2, Pulp Plant 1 & 2, Roller Hand Operator 1 &2, Quality Inspector 1, pre-AC, post-AC, Coating Line Onloader, high-pressure water equipment, and mobile equipment. (Trevino-Rocha Decl., ¶ 17.)

Plaintiff has also submitted Hardie’s RIF data. (Trevino-Rocha Decl., Ex. 8, p. JH_TREVINO 000170.) Thereon, the “Position Skills / Roles Coverage” factor appears to set forth two considerations: (1) “Has skills and is able to perform roles/positions within the plant operations[,]” and (2) “Has certifications in role/position, is a trainer for the position or is nearing completion of training to be certified in position[.]” (Ibid.) A score of 5 is given if an employee is “Currently in a Lead Position Role or Certified Roller Hand[,]” and a score of 4 is given if an employee is “Competent in four or more positions[.]” (Ibid.)

The court acknowledges that defendant Brown, as Hardie’s former Human Resources Manager, has explained that Hardie considered an employee’s active certifications (i.e., those completed within the prior 12 months) or if an employee had actively worked in a position in connection with the first factor. (Brown Decl., ¶ 17.) However, the criteria chart describing factor 1 also (1) appears to list as a consideration whether the employee had skills and was able to perform roles/positions within the plant (i.e., applying metrics independent of certifications), and (2) sets forth the scores of one to four, which do not list the number of certifications required to achieve such a score, but instead list the number of positions in which an employee is competent. (Trevino-Rocha Decl., Ex. 8, p. JH_TREVINO 000170.) As set forth above, Plaintiff has presented evidence showing that he was qualified for more than four positions, and thus may have been entitled to receive a score higher than the three (30 percent) that he was given. (Trevino-Rocha Decl., ¶ 17; Brown Decl., Ex. J, p. JH_TREVINO 000173.)

The court also acknowledges that Hardie has submitted, in reply, evidence to show that Plaintiff did not recertify his certifications and that the first factor considered both the number of certifications and an employee’s ability to run and be in that position. (Reply, p. 4:4, 4:5-7.) As a threshold matter, “[t]he general rule of motion practice . . . is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [“This principle is most prominent in the context of summary judgment motions”].) However, even if the court were to consider this evidence, it does not rebut Plaintiff’s statement—given that he was previously certified in those areas—that he was “fully capable of performing” the positions described in his declaration, which may have increased his retainability score under the first factor.[2] (Trevino-Rocha Decl., ¶ 17; Lagunas Reply Decl., Ex. B, Trevino-Rocha Dep., Vol. 1, p. 145:5-6.) Moreover, although Hardie appears to be relying on Brown’s statements that Hardie considered both (1) an employee’s ability to run and be in that position, and (2) that an employee who previously received a certification may not be able to perform the job if too much time had lapsed, Hardie has not adequately cited to that evidence in its reply papers. (Reply, p. 4:5-9 [citing “Lagunas Reply Decl. ¶XX, p. XX”].) Even if the court were to consider those statements, Hardie does not appear to have produced evidence showing that the certifications obtained by Plaintiff were determined to have been untimely in scoring Plaintiff on the first factor or that Plaintiff could not have performed in those positions.

As to the calculation of unexplained absences, Hardie has submitted evidence showing that the attendance factor “expressly excluded approved vacations, Sick Leave Pay (“SLP”), bereavement, jury duty, unpaid vacation, approved leave of absences, and Family Medical Leave of Absence.” (Brown Decl., ¶ 19.) Hardie produced evidence showing that Plaintiff had unexcused absences on April 10-12, 2018, May 24, 2018, October 5, 2018, and October 17-18, 2018. (Bueno Decl., ¶ 22 [Plaintiff was absent on April 10 through April 13, 2018]; Brown Decl., Ex. F [circling April 13, 2018 and writing “Saturday [¶] Remove from this list”]; Brown Decl., Ex. F [Employee Attendance Coaching / Counseling Form for Plaintiff dated October 18, 2018, noting absences on October 5, 2018, October 17, 2018, October 18, 2018, and May 24, 2018].)

Plaintiff contends that his absences were protected and therefore should not have been considered unexcused. Specifically, Plaintiff states in his declaration that (1) Hardie’s policy required an employee to provide documentation following an absence so that it would not count as unexcused, and (2) Plaintiff provided all documentation requested. (Trevino-Rocha Decl., ¶ 18.) However, Plaintiff did not provide sufficient evidence of any such policy and therefore has not shown a triable issue of material fact as to whether Hardie used incorrect data in calculating his retainability score. Moreover, although Plaintiff argues that this evidence also constitutes an admission that Hardie terminated him for his known disability by considering his absence for emergency surgery unexcused, the court disagrees. (Opp., p. 10:20-23.) The emergency surgery has been described by Plaintiff to be an appendectomy, which would not appear to relate to the physical disability alleged in the Complaint. (Pl. Response to DMF No. 24 [stating that the absences “were days missed due to an emergency appendectomy surgery and being sick with the flu”].)

Fourth, Plaintiff presents evidence showing that (1) on December 6, 2018, his physician informed him of the need for surgery on his right shoulder to repair a torn labrum and rotator cuff; (2) on that date, Plaintiff provided Brown with his updated doctor’s note; and (3) thereafter, on December 6, 2018, Plaintiff was informed of his termination. (Trevino-Rocha Decl., ¶¶ 13-15; Trevino-Rocha Decl., Ex. 5 [Primary Treating Physician’s Progress Report]; Bueno Decl., ¶ 25 [stating that Hardie terminated Plaintiff on December 6, 2018].)

Fifth, Plaintiff has presented evidence showing that he was performing satisfactorily prior to his termination. Specifically, Plaintiff submits his 2017 Year End Review, in which Plaintiff received positive marks and ratings, including a comment from William Munch that Plaintiff “did a good job this year leading the support crew and play[ed] a huge part in the success of the Fontana plant.” (Trevino-Rocha Decl., Ex. 2, p. 000268.)

The court finds that Plaintiff has submitted evidence, which, taken together, is sufficient to show the existence of a triable issue of material fact as to whether Hardie’s proffered reason for terminating him was pretextual by submitting evidence showing that (1) the other Specialist Operator 5 that was retained was younger than Plaintiff; (2) Hardie might not have properly calculated Plaintiff’s factor 1 score, such that there is a triable issue of material fact as to whether Hardie’s reasons for terminating Plaintiff (i.e., that he had a score qualifying him for layoff) was untrue; and (3) Plaintiff was laid off on the same day that he informed Hardie of his need for further surgeries based on his disability, such that the timing may suggest pretext. (Foroudi, supra, 57 Cal.App.5th at p. 1008; Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 354 [“temporal proximity, together with the other evidence, may be sufficient to establish pretext”] [emphasis in original].)

The court therefore denies Hardie’s motion for summary adjudication as to the first cause of action for employment discrimination.

2. Second Cause of Action for Failure to Provide Reasonable Accommodation Against Hardie

It is an unlawful employment practice “[f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Gov. Code, § 12940, subd. (m)(1).) “‘The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability. [Citation.]’” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766 [internal citation omitted].)

The court finds that Hardie has met its burden of showing that the second cause of action for failure to accommodate has no merit because Hardie has shown that an element of the cause of action (that Hardie failed to reasonably accommodate Plaintiff’s disability) cannot be established.

Hardie has submitted evidence showing that (1) William Munch, the Plant Production Manager, was aware of Plaintiff’s restrictions, instructed Plaintiff not to perform any physical work that exceeded those restrictions, and limited Plaintiff’s duties to supervising and coaching his team; (2) Nunez did not direct Plaintiff to perform assignments that violated his work restrictions; and (3) in May 2018, Hardie updated Plaintiff’s individual job description for Support Crew Lead to incorporate those work restrictions. (DMF No. 10; Munch Decl., ¶¶ 2, 5; Nunez Decl., ¶ 3; Bueno Decl., ¶ 24.) Thus, the court finds that Hardie has met its burden by producing evidence showing that it accommodated Plaintiff’s disability by updating his job description to conform to his work restrictions and by instructing Plaintiff to supervise and coach his team to ensure that Plaintiff was not violating those restrictions.

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to the element of Hardie’s accommodation of Plaintiff’s disability.

Plaintiff has submitted his declaration, in which he states that (1) he was required to perform the same physical tasks that the rest of his crew performed, including by performing tasks in violation of his work restrictions, and (2) when he reported that he was violating his work restrictions to his supervisors, he was told that “‘the job needs to get done.’” (Trevino-Rocha Decl., ¶ 9.) Paul Castro, an employee supervised by Plaintiff, further attested that Plaintiff was required to regularly perform the same physical tasks as Castro and their crew. (Castro Decl., ¶ 3.)

Plaintiff also states that, following his transfer to the IMS operator position, Plaintiff informed Hardie that the new position required a violation of his work restrictions, but Hardie insisted that Plaintiff move to this new position. (Trevino-Rocha Decl., ¶¶ 11-12.) Plaintiff has submitted an email that he sent to Brown, Munch, and Eoin Battles, in which Plaintiff stated that he would “need to go with the specialist . . . to get confirmation that [he] can perform the task” that he would be assigned. (Trevino-Rocha Decl., Ex. 4, p. 3.) However, Plaintiff asserts that Hardie “never responded to [his] concerns about potentially injuring [his] shoulders.” (Trevino-Rocha Decl., ¶ 11.)

The court finds that this evidence is sufficient to show the existence of a triable issue of material fact as to whether Hardie failed to accommodate Plaintiff’s disability (1) by instructing Plaintiff to violate his work restrictions (when informing him that the job had “to get done”) instead of accommodating those restrictions, and (2) by failing to offer a reasonable accommodation for Plaintiff after he raised concerns regarding his ability to perform his tasks as an IMS operator.[3]

The court therefore denies Hardie’s motion for summary adjudication as to the second cause of action for failure to accommodate.

3. Third Cause of Action for Failure to Engage in Timely and Good Faith Interactive Process Against Hardie

It is an unlawful employment practice “[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940, subd. (n).) “‘The employee must initiate the process unless his or her disability and the resulting limitations are obvious. Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith.’” (Kaur v. Foster Poultry Farms LLC (2022) 83 Cal.App.5th 320, 347 [emphasis in original].)

The court finds that Hardie has met its burden of showing that the third cause of action for failure to engage in the interactive process has no merit because Hardie has shown that an element of the cause of action (that Hardie failed to engage in the interactive process) cannot be established. Hardie has submitted evidence showing (1) that, as set forth above, Hardie accommodated Plaintiff, and (2) that Plaintiff did not inform Hardie that performing his duties caused him to violate his work restrictions. (Brown Decl., ¶ 8 [“Plaintiff never complained or told me that he was unable to perform his duties after accommodation due to his work restrictions”]; Nunez Decl., ¶ 2 [Plaintiff “never complained to me about any alleged lack of accommodation” and did not complaint that he was unable to perform his duties]; Munch Decl., ¶ 6 [same].)

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to the element of Hardie’s failure to engage in the interactive process.

As set forth above, Plaintiff has submitted evidence showing that (1) he informed Hardie that he was concerned about his abilities to perform his tasks as an IMS operator, and (2) Hardie did not respond to his email setting forth that concern. (Trevino-Rocha Decl., ¶ 11; Trevino-Rocha Decl., Ex. 4.) Further, as set forth above, Plaintiff presented evidence showing that, when he did report that the work that he was required to perform caused him to violate his work restrictions, he was told that “‘the job needs to get done.’” (Trevino-Rocha Decl., ¶ 9.) The court finds that this evidence is sufficient to show that a triable issue of material fact exists as to whether Hardie failed to continuously engage in the interactive process in good faith with Plaintiff upon being notified that (1) Plaintiff was unsure that he would be able to perform the tasks required of him as an IMS operator due to his physical condition, and (2) Plaintiff’s work assignments required him to violate his work restrictions. (Kaur, supra, 83 Cal.App.5th at pp. 347, 348 [“‘If the employer is responsible for a later breakdown in the process, it may be held liable’”] [emphasis added].)

The court therefore denies Hardie’s motion for summary adjudication as to the third cause of action for failure to engage in the interactive process in good faith.

It is an unlawful employment practice “[f]or 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, subd. (h).) It is also an unlawful employment practice to “retaliate or otherwise discriminate against a person for requesting accommodation under [section 12940, subdivision (m)], regardless of whether the request was granted. (Gov. Code, § 12940, subd. (m)(2).) “‘[T]o establish a prima facie case of retaliation under the 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.)

The court finds that Hardie has met its burden of showing that the fourth cause of action for retaliation has no merit because Hardie has shown that an element of the cause of action (that Plaintiff engaged in protected activity) cannot be established. Hardie submitted evidence showing that Plaintiff did not complain of discrimination or harassment based on his age, injury, or requests for accommodation. (Munch Decl., ¶ 7; Compl., ¶ 35 [alleging that he was retaliated against for engaging in the following protected activity: (1) making protected complaints of discrimination and harassment to Hardie, (2) requesting reasonable accommodations for his disabilities, and (3) protesting the lack of accommodations provided to him by Hardie].)

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to the element of his protected activity. Plaintiff has submitted evidence showing that he raised concerns on October 11, 2018, regarding his transfer to the IMS operator position and whether he would be able to complete his tasks. (Trevino-Rocha Decl., Ex. 4, p. 3.) Thus, the court finds that Plaintiff has submitted evidence showing the existence of a triable issue of material fact as to whether he engaged in protected activity, i.e., that he requested reasonable accommodations for his disability.

Moreover, to the extent that Hardie contends that Plaintiff cannot establish causation, as set forth above, Plaintiff has submitted evidence sufficient to show the existence of a triable issue of material fact as to whether his termination was pretextual by showing (1) that, as set forth in connection with the court’s ruling on the first cause of action for discrimination, Hardie might not have properly calculated Plaintiff’s factor 1 score, such that there is a triable issue of material fact as to whether Hardie’s reasons for terminating Plaintiff (i.e., that he had a score qualifying him for layoff) was untrue, and (2) that he raised concerns on October 11, 2018, regarding his transfer to the IMS operator position and whether he would be able to complete his tasks, and thereafter was terminated approximately two months later, on December 6, 2018, such that the timing may suggest that Hardie retaliated against him for disclosing his disability and raising the issue of whether he would need to be accommodated in that position. (Foroudi, supra, 57 Cal.App.5th at p. 1008; Arteaga, supra, 163 Cal.App.4th at p. 354.)

The court therefore denies Hardie’s motion for summary adjudication as to the fourth cause of action for retaliation.

It is an unlawful employment practice “[f]or an employer . . . or any other person, because of . . . physical disability, mental disability . . . [or] age . . ., to harass an employee . . . .” (Gov. Code, § 12940, subd. (j)(1).) “To establish a prima facie case of harassment, [a plaintiff] must show that (1) [he or] she is a member of a protected class; (2) [he or] she was subjected to unwelcome harassment; (3) the harassment was based on [his or] her protected status; (4) the harassment unreasonably interfered with [his or] her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563.)

The court finds that Defendants have met their burden of showing that the fifth cause of action for harassment has no merit because Defendants have shown that an element of the cause of action (that Plaintiff was subjected to unwelcome harassment on the basis of his age or disability by Defendants) cannot be established. Defendants have submitted the deposition transcript of Plaintiff, in which Plaintiff testified that (1) nobody working for Hardie ever “sa[id] anything to [him] that [he] considered to be something negative related to [his] shoulder injury[;]” and (2) nobody “ever sa[id] anything to [him] at James Hardie that [he] viewed as negative related to [his] age[;]” and (3) nobody at Hardie said anything related to his shoulder or age that he “felt was inappropriate[.]” (Lagunas Decl., Ex. A, Pl. Dep., Vol. 1, p. 177:4-24.)

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to the element of Defendants’ harassment of Plaintiff. Plaintiff contends, in his opposition papers, that he was targeted by his managers and supervisors in an attempt to force him to quit or retire, that he was required to perform tasks in violation of his work restrictions, and that the work mentality placed work first and safety second. (Trevino-Rocha Decl., ¶ 9; Castro Decl., ¶ 6.) The court finds that this evidence is insufficient to show a triable issue of material fact as to whether Defendants subjected Plaintiff to unwelcome harassment because of his age or disability. (Galvan, supra, 37 Cal.App.5th at p. 563.)

The court therefore grants Defendants’ motion for summary adjudication as to the fifth cause of action for harassment.

6. Sixth Cause of Action for Failure to Prevent Discrimination, Retaliation, and Harassment Against Hardie

It is an unlawful employment practice “[f]or an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).)

The court finds that Hardie has met its burden of showing that the sixth cause of action for failure to prevent discrimination, retaliation, and harassment has no merit because Hardie has shown that an element of the cause of action (underlying, valid claims for discrimination, harassment, and retaliation) cannot be established for the reasons set forth in connection with the court’s rulings on the first, fourth, and fifth causes of action. (Featherstone, supra, 10 Cal.App.5th at p. 1166 [“Where . . . a plaintiff cannot establish a claim for discrimination [or harassment], the employer as a matter of law cannot be held responsible for failing to prevent same: ‘ “[T]here’s no logic that says an employee who has not been discriminated against [or harassed] can sue an employer for not preventing discrimination that didn’t happen . . . .” ’”].)

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to the element of an underlying, valid claim for discrimination, harassment, and retaliation because the court has found, as set forth in connection with the first and fourth causes of action for employment discrimination and retaliation, that Plaintiff has met his burden to show the existence of a triable issue of material fact as to those causes of action, which are sufficient to support this cause of action. (Featherstone, supra, 10 Cal.App.5th at p. 1166.)

The court notes that Hardie has also argued, in its motion, that liability is triggered only when it knew or should have known of discrimination or harassment and failed to take prompt remedial action. (Mot., p. 23:13-14.) However, Hardie did not cite any authority supporting that contention. Government Code section 12940, subdivision (k), states only that it is unlawful for an employer to prevent discrimination and harassment from occurring. (Gov. Code, § 12940, subd. (k).) It does not state that an employer is liable only for its failure to investigate a complaint.[4]

The court therefore denies Hardie’s motion for summary adjudication as to the sixth cause of action for failure to prevent discrimination, retaliation, and harassment.

7. Seventh Cause of Action for Wrongful Termination in Violation of Public Policy Against Hardie

“‘[W]hen an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.’” (Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1338.)

The court finds that Hardie has met its burden of showing that the seventh cause of action for wrongful termination in violation of public policy has no merit because Hardie has shown that an element of the cause of action (that Plaintiff was terminated in violation of a fundamental principle of public policy based on his underlying claims under the Fair Employment and Housing Act) cannot be established because Hardie has shown that Plaintiff’s FEHA causes of action cannot be established for the reasons set forth in connection with the court’s rulings on the first, fourth, and fifth causes of action. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [“because [the plaintiff’s] FEHA claim fails, his claim for wrongful termination in violation of public policy fails”].)

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to the element of termination in violation of public policy because the court has found, as set forth in connection with the first and fourth causes of action for employment discrimination and retaliation, that Plaintiff has met his burden to show the existence of a triable issue of material fact as to those causes of action, which support his claim for wrongful termination. (Hanson, supra, 74 Cal.App.4th at p. 229.)

The court therefore denies Hardie’s motion for summary adjudication as to the seventh cause of action for wrongful termination in violation of public policy.

8. Eighth Cause of Action for Intentional Infliction of Emotional Distress Against Defendants

“A cause of action for intentional infliction of emotional distress exists when there is (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.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 [internal quotations omitted].)

The court finds that Defendants have not met their burden of showing that the eighth cause of action for intentional infliction of emotional distress has no merit because Defendants have not shown that this cause of action is barred by the statute of limitations.

Defendants contend that the cause of action is barred because Plaintiff cannot rely on incidents occurring prior to April 16, 2019, including applying for rehire in March 2019. However, Defendants did not clearly set forth each act on which Plaintiff bases this cause of action to show that it is barred by the two-year statute of limitations. (Code Civ. Proc., § 335.1.)

Even if Defendants had met their burden to show that the statute of limitations for all the claims expired before the time that Plaintiff filed the Complaint, Plaintiff has met his burden to show that a triable issue of material fact exists as to the bar of the statute of limitations for claims occurring prior to that date because (1) the Judicial Council enacted and thereafter amended Emergency rule 9 of the California Rules of Court (Appendix I, Emergency Rules Related to COVID-19), which provided that “the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020 until October 1, 2020[;]” (2) Plaintiff filed the Complaint in this action on April 16, 2021; and (3) this cause of action, to the extent that it is based on the March 2019 event in which Hardie did not rehire Plaintiff, would not be barred by the statute of limitations because it would have been tolled between April 6, 2020 until October 1, 2020. (Emergency Rule 9; People v. Financial Casualty & Surety, Inc. (2021) 73 Cal.App.5th 33, 39 [quoting Emergency rule 9]; March 1, 2019 + 2 years = March 1, 2021 + 178 days (April 6, 2020 until October 1, 2020) = August 26, 2021].)

“Physical and emotional injuries sustained in the course of employment are preempted by the workers’ compensation scheme and generally will not support and independent cause of action. [Citation.] Emotional injuries caused by workplace discipline, including termination, fall within this rule.” (Yau v. Santa Margarita Ford (2014) 229 Cal.App.4th 144, 161.) However, “conduct in violation of FEHA is not part of the employment relationship or the compensation bargain at the heart of the workers’ compensation system.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 100.) Thus, “unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain and therefore claims of intentional infliction of emotional distress based on such discrimination and retaliation are not subject to workers’ compensation exclusivity.” (Id. at p. 101.) Because Plaintiff’s cause of action for intentional infliction of emotional distress is based on unlawful discrimination and retaliation in violation of FEHA, it is not subject to workers’ compensation exclusivity. (Ibid.; Compl., ¶ 61 [Defendants’ harassment, discrimination, and retaliation was extreme and outrageous].)

The court therefore denies Defendants’ motion for summary adjudication as to the eighth cause of action for intentional infliction of emotional distress.

The elements of a defamation cause of action are “‘ “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” [Citation.]’” (Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 763.)

The court finds that Defendants have not met their burden of showing that the ninth cause of action for defamation has no merit because Defendants have not shown that the element of publication cannot be established.

In their motion, Defendants assert that (1) “Plaintiff has no evidence that Defendants published any statement about his age, performance or qualifications to perform an alternative job[,]” and (2) Plaintiff admits that, at the time he worked for the company, and after he was terminated, nobody told him that Hardie or its employees stated negative or false things about him. (Mot., p. 25:16-20.) However, Defendants have not cited any evidence to support either assertion in their memorandum of points and authorities. (Mot., p. 25:29 [citing “SUF XX”].) Further, in reviewing the separate statement, the court has not located these material facts. (Separate Statement filed by Plaintiff on Jan. 24, 2024, pp. 416-445 [separate statement as to ninth cause of action].) Thus, Defendants have not sufficiently apprised the court (and Plaintiff) of the evidence on which Defendants rely in support of their assertion that Plaintiff cannot establish the element of publication.

The court therefore denies Defendants’ motion for summary adjudication as to the ninth cause of action for defamation.

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) “With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code,§ 3294, subd. (b).) “A court can award Civil Code section 3294 punitive damages in a FEHA case.” (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1435.) “Summary judgment or summary adjudication on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.” (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1159 [internal quotations omitted].)

The court finds that defendants Brown and Nunez have not met their burden of showing that Plaintiff’s claim for punitive damages has no merit because Brown and Nunez have not shown that their conduct was not oppressive or malicious by failing to present argument in support of such an assertion. Instead, Defendants’ motion for summary adjudication as to this issue is based solely on the argument that Hardie’s conduct does not rise to the level of malice, oppression, or fraud. (Mot., p. 26:5-6.)

The court finds that Hardie has met its burden of showing that Plaintiff’s claim for punitive damages has no merit because Hardie has shown that an element of the claim (that Hardie acted with malice, oppression, or fraud) cannot be established.

As set forth above, Hardie has submitted evidence showing that, in deciding to determine which employees to lay off and to retain, it conducted an objective analysis of all of its employees and terminated Plaintiff because of that score. (Battles Decl., ¶¶ 10-11; Brown Decl., ¶¶ 14-16, 21; Brown Decl., Ex. J, p. JH_TREVINO 000175.) The court finds that this evidence is sufficient to show that Plaintiff cannot establish that (1) Hardie intended to cause injury to Plaintiff or acted with a willful and conscious disregard of the rights or safety of Plaintiff, such that Hardie is guilty of malice; (2) Hardie subjected Plaintiff to cruel and unjust hardship in violation of Plaintiff’s rights, such that Hardie is guilty of oppression; or (3) Hardie made an intentional misrepresentation or concealed a material fact with the intent to deprive Plaintiff of property or legal rights or to otherwise cause Plaintiff injury, such that Hardie is guilty of fraud. (Civ. Code, § 3294, subd. (c) [defining malice, oppression, and fraud].)

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to the element of malice on the part of Hardie.

As set forth above, Plaintiff has presented evidence showing that Hardie might not have properly calculated Plaintiff’s retainability score, such that there is a triable issue of material fact as to whether Hardie’s reason for terminating Plaintiff (i.e., that he had a score qualifying him for layoff) was untrue, and that Plaintiff was laid off on the same day that he informed Hardie of his need for further surgeries based on his disability, such that the timing may suggest pretext. (Trevino-Rocha Decl., ¶ 17; Brown Decl., Ex. J, p. JH_TREVINO 000173; Trevino-Rocha Decl., ¶¶ 13-15.) Plaintiff has also presented evidence showing that, when he informed Hardie that, in order to perform the work required by his position, he was required to violate his work restrictions, he was told only that “‘the job needs to get done.’” (Trevino-Rocha Decl., ¶ 9.)

The court finds that, under the circumstances presented by this evidence, Plaintiff has shown the existence of a triable issue of material fact as to whether Hardie carried on “conduct which [was] intended by [Hardie] to cause injury to [Plaintiff” and therefore has shown a triable issue of material fact as to whether Hardie is guilty of malice. (Civ. Code, § 3294, subds. (a), c)(1).)

The court therefore denies Defendants’ motion for summary adjudication as to Plaintiff’s claim for punitive damages.

The court denies defendants James Hardie Building Products, Inc., Elizabeth Brown, and Steven Nunez’s motion for summary judgment.

The court grants defendants James Hardie Building Products, Inc., Elizabeth Brown, and Steven Nunez’s motion for summary adjudication as to the fifth cause of action for harassment.

The court denies defendants James Hardie Building Products, Inc., Elizabeth Brown, and Steven Nunez’s motion for summary adjudication as to (1) the first through fourth and sixth through ninth causes of action, and (2) the claim for punitive damages.

The court orders plaintiff Benjamin Trevino-Rocha to give notice of this ruling.

[1] The evidentiary objections to this declaration erroneously omit number 4.

[2] Although portions of Plaintiff’s deposition were submitted in connection with Defendants’ moving papers, page 145 was not included therein. (Lagunas Decl., Ex. A, Trevino-Rocha Dep., Vol. 1.)

[3] The court notes that, in its moving papers, Hardie has submitted the declaration of William Munch, in which Munch states that the IMS machine “does not inherently require the operator to lift heavy machinery or perform overhead work.” (Munch Decl., ¶ 8.) However, this evidence does not show that operating the IMS machine never requires the lifting of heavy machinery. But, even if Munch had so stated, Plaintiff has (1) stated that this position would require “repetitive overhead movement and lifting in violation of [his] work restrictions[,]” and (2) submitted the declaration of Castro, in which he states, based on his experience operating the IMS machine, that “it would be impossible to operate the IMS machine” without lifting over 10 pounds and therefore violating Plaintiff’s work restrictions. (Trevino-Rocha Decl., ¶ 11; Castro Decl., ¶ 5.)

[4] The court acknowledges that this may be one basis for such a claim. (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1024 [“One such reasonable step . . . is a prompt investigation of the discrimination claim”].) But Hardie has not cited authority establishing that this is the only basis that may support a claim for failure to prevent.

benjamin trevino-rocha ; Plaintiff, vs. james hardie building products inc. , et al.; Defendants.	Case No.:	21STCV14665

	Hearing Date:	February 7, 2024

	Time:	10:00 a.m.

	[Tentative] Order RE: defendants’ motion for summary judgment or, in the alternative, summary adjudication