Judge Thomas D. Long, Case Number: 21STCV16031, Date: 2023-09-14 Tentative Ruling

On April 28, 2021, Plaintiff Jorge Pelayo filed this action against Defendants Star Fisheries Inc. (“Star”), Deanne Inman, and John Swain, alleging (1) wrongful termination in violation of public policy (Star); (2) discrimination, harassment, and retaliation in violation of the Fair Employment and Housing Act (“FEHA”) (Star); (3) harassment in violation of FEHA (Inman and Swain); (4) meal and rest break violations (Star); (5) whistleblower retaliation (Star); (6) failure to provide accurate wage statements (Star); (7) intentional infliction of emotional distress (“IIED”) (all Defendants); and (8) unfair business practices (all Defendants).

On September 3, 2021, this action was removed to federal court. The parties alter stipulated to remand. When doing so, Plaintiff also dismissed his fourth cause of action.

On June 15, 2023, Defendants filed a motion for summary judgment, or in the alternative, summary adjudication. Plaintiff did not file an opposition.

“Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.” ((United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335 (United Community Church).) “The separate statement ‘provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (Nazir).) “[I]t is no answer to say the facts set out in the supporting evidence and memorandum of points and authorities are sufficient. ‘Such an argument does not aid the trial court at all since it then has to cull through often discursive argument to determine what is admitted, what is contested, and where the evidence on each side of the issue is located.’” (United Community Church, supra, 231 Cal.App.3d at p. 335.) “The due process aspect of the separate statement requirement is self-evident—to inform the opposing party of the evidence to be disputed to defeat the motion.” (Id. at p. 337.)

Defendants’ separate statement is 51 pages long and contains 268 “material” facts. Like the “inappropriate” separate statement in Nazir, the actual number of material facts in this separate statement is presumed to be lower, as many of the same facts are unnecessarily repeated. (See Nazir, supra, 178 Cal.App.4th at p. 252.) Of the unique facts, many are unnecessary and are not, in fact, material to the claims or defenses. Additionally, what a party said or perceived is not a “material fact”; rather, it is evidence of a fact. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 106 (Reeves).) “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” (California Rules of Court, rule 3.1350(d)(2).)

“[T]rial courts have the inherent power to strike proposed ‘undisputed facts’ that fail to comply with the statutory requirements and that are formulated so as to impede rather than aid an orderly determination whether the case presents triable material issues of fact. If such an order leaves the required separate statement insufficient to support the motion, the court is justified in denying the motion on that basis.” (Reeves, supra, 121 Cal.App.4th at p. 106.) Although the Court will not strike portions of the separate statement here, counsel is cautioned to include only facts that are truly material to the motion.

Plaintiff worked as a driver for Star from January 2016 through August 2017. (Undisputed Material Facts “UMF” 1.) Plaintiff separated from employment with Star in August 2017 after the U.S. District Court issued an order reinstating a number of striking drivers, necessitating the layoff of Plaintiff and other striker-replacement drivers. (UMF 2.) Plaintiff was rehired as a driver by Star on May 23, 2018. (UMF 3.)

On June 8, 2018, Plaintiff, along with other Star drivers and former drivers, filed a civil lawsuit with a goal of improving work conditions regarding pay and hours. (UMF 4-6.)

Plaintiff admitted that he did not have any limitation or restriction, did not suffer any injury, and did not ask Star for any accommodation during his second period of employment with Star. (UMF 53-56.)

Plaintiff was not harassed because of his ancestry, color, family or medical leave, disability, age, or association with any member of a protected class. (UMF 92, 214-225.) Inman and Swain never insulted, mocked, or raised her voice at Plaintiff, and they did not commit any harassing conduct toward Plaintiff. (UMF 93-96.) Plaintiff did not seek any treatment for his alleged emotional distress, and he had no physical manifestations related to his alleged emotional distress. (UMF 238-239.)

Plaintiff did not identify any wage statement that was incorrect in his complaint. (UMF 212.) Plaintiff admitted that if he had any issues with is wage statements or pay, Star corrected the issues. (UMF 213.)

In May 2019, Inman was aware that one more full-time driver would return be returning from a workers’ compensation leave that month, and another full-time driver would be returning from a workers’ compensation leave in August 2019. (UMF 68.) She was also aware that one of Star’s largest customers was decreasing its volume of orders delivered by Star. (UMF 69.) Based on her assessment of need, and on the terms of the CBA, Inman elected to move the two lowest-seniority drivers, including Plaintiff, from full- to part-time status in May 2019. (UMF 70.)

In July 2019, Star made a business decision to hire a Class A commercial driver to operate a semi-trailer, reasoning that the larger semi-trailer could handle certain large loads more efficient than the smaller “bobtail” box trucks driven by the other drivers (who did not hold Class A licenses). (UMF 73.) Inman determined that Star’s decreasing workload required that two more drivers be transition from full-time to part-time. (UMF 75.) After transitioning the two least senior full-time drivers to part-time, Star was left with 19 full-time drivers and 4 part-time drivers, which violated the ratio of set forth in Article 8 of the CBA. (UMF 76.) In order to comply with Article 8 of the CBA, Inman concluded that it was necessary to “bump” or lay off the two least senior part-time drivers. (UMF 77.)

In July 2019, based on a lack of Class C driver work and the terms of the CBA, Star laid off the two lowest-seniority Class C drivers in the company, Plaintiff and Brian Hagerty. (UMF 65; see UMF 67.) Before doing so, Inman advised their union, and the union did not respond or object. (UMF 78-79.)

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163 (Sangster).)

A. It Is Not Clear That Plaintiff’s Claims Are Preempted By The National Labor Relations Act.

“When an activity is arguably subject to s 7 or s 8 of the [National Labor Relations Act (“NLRA”)], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” (San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon (1959) 359 U.S. 236, 245.)

Defendants argue that all of Plaintiff’s claims arise out of conduct that would violate the NLRA. (Motion at p. 12.) Specifically, Defendants rely on Plaintiff’s 2018 lawsuit filed in concert with other employees for the purpose of improving working conditions. (Id. at p. 13.) According to Defendants, “Plaintiff’s Complaint and his sworn testimony confirm that this action arises from allegations that Star terminated Plaintiff in retaliation for concerted activity, in direct violation of Section 8 of the NLRA.” (Id. at p. 14.)

In addition to retaliation for engaging in protected concerted activity, Plaintiff alleges that Defendants breached their duty “to maintain a work environment that was free from discrimination, harassment, and retaliation on the bases stated herein including race, national origin, disability, perceived disability, for having a need for or requesting accommodation, and for seeking medical leave, and association with others with similar needs.” (Complaint ¶¶ 37, 46.) Plaintiff also alleges that Defendants “also were motivated by Plaintiff’s and others injury, disability, perceived disability, perceived need for accommodation.” (Complaint ¶¶ 37, 45.)

“The pleadings play a key role in a summary judgment motion. ‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues’ and to frame ‘the outer measure of materiality in a summary judgment proceeding.’” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) Based on the Complaint’s allegations, it is not clear that all of Plaintiff’s claims and Defendants’ conduct arise out of Plaintiff’s protected concerted activity.

Defendants have not met their initial burden regarding preemption. Summary judgment is denied on this basis. But in any event, for the reasons discussed below, Defendants have met their initial burdens on the merits of each claim.

B. Defendants Have Proven a Legitimate and Non-Discriminatory Reason For the Alleged Discrimination and Retaliation (Second Cause of Action).

An employee’s prima facie claim of discrimination requires “(1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) If an employee makes a prima facie showing, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. (Id. at p. 714.) “To establish that an employer has discriminated on the basis of a disability in violation of FEHA, the plaintiff employee has the burden of proving he or she could perform ‘the essential functions of the job with or without reasonable accommodation.’” (Atkins, supra, 8 Cal.App.5th at p. 716.)

“In an employment discrimination case, an employer may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. [Citation.] A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. [Citation.] The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that on or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone).) Then the burden shifts to the employee “to present evidence that the employer’s decision was motivated at least in part by prohibited discrimination.” (Id. at pp. 1158-1159.) “The plaintiff’s evidence must be sufficient to support a reasonable inference that discrimination was a substantial motivating factor in the decision. [Citation.] The stronger the employer’s showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff’s evidence must be in order to create a reasonable inference of a discriminatory motive.” (Id. at p. 1159.)

“The employee’s ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’ [Citation.] (Featherstone, supra, 10 Cal.App.5th at p. 1159.) “To show that an employer’s reason for termination is pretextual, an employee ‘ “cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.” ’ [Citation.] To meet his or her burden, the employee ‘ “must demonstrate such 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 ‘ “the employer did not act for [the asserted] nondiscriminatory reasons.” ’ [Citations.]” (Ibid.)

Similarly, to establish a prima facie case of retaliation under 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. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘‘‘drops out of the picture,’’’ and the burden shifts back to the employee to prove intentional retaliation. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

According to Plaintiff, Swain discriminated against him in the assignment of routes, but he cannot identify any driver who Swain treated more favorably. (UMF 58-59.) Plaintiff cannot identify anything that Inman did to discriminate against him. (UMF 61.) Additionally, the adverse employment action—Plaintiff’s termination—was due to reduced work and compliance with the CBA. (UMF 65; see UMF 67.)

With respect to the alleged harassment (see Complaint at p. 8), that is addressed below with the separate harassment cause of action.

Defendants have met their burden of showing no discrimination or retaliation, as well as a legitimate and non-discriminatory reason for Plaintiff’s termination. Plaintiff did not file an opposition to create any triable issue of fact.

C. Defendants Have Proven That There Was No Harassment (Second and Third Causes of Action).

To establish a claim for harassment, a plaintiff must demonstrate that (1) he is a member of a protected group; (2) he was subjected to harassment because he belonged to this group; and (3) the alleged harassment was so severe that it created a hostile work environment. (See Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121.) Whether harassment exists based upon a hostile work environment is determined by considering all of the circumstances, which may include frequency, severity, and job interference. (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462.) Harassment consists of “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Reno v. Baird (1998) 18 Cal.4th 640, 646 (Reno).) Harassment does not include commonly necessary personnel management actions, such as hiring, firing, job assignments, promotion, demotion, performance evaluations, excluding from meetings, and laying off. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 879.) To establish a hostile work environment, “‘[a] plaintiff 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 that [he] was actually offended.’” (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.)

According to Plaintiff’s own testimony, he was not harassed because of his ancestry, color, family or medical leave, disability, age, or association with any member of a protected class. (UMF 92, 214-225.) Inman and Swain never insulted, mocked, or raised her voice at Plaintiff, and they did not commit any harassing conduct toward Plaintiff. (UMF 93-96.)

Defendants have met their burden. Plaintiff did not file an opposition to create any triable issue of fact.

D. Defendants Have Proven That There Was No Whistleblower Retaliation (Fifth Cause of Action).

Under FEHA, an employer may not discharge or discriminate against any person who opposes forbidden employment practices. (Gov. Code, § 12940, subd. (h); see Lab. Code, §§ 98.6, 6310.) To establish a prima facie case of retaliation under 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. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘‘‘drops out of the picture,’’’ and the burden shifts back to the employee to prove intentional retaliation. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Labor Code “section 1102.6, and not McDonnell Douglas, supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712 (Lawson).) After a plaintiff demonstrates by a preponderance of the evidence that his protected activity was a contributing factor in the adverse employment action, the employer must demonstrate by clear and convincing evidence that the adverse employment action would have occurred for legitimate, independent reasons even if the employee did not engage in the protected conduct. (Lab. Code, § 1102.6.) Under this standard, “plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action.” (Lawson, supra, 12 Cal.5th at pp. 713-714.)

Plaintiff did not make any workplace safety complaints. (UMF 108.) He did not complain to anyone at Star or the Union about being harassed or discriminated against. (UMF 127-141.) Plaintiff also did not complain to Star about illegal conduct or being denied a disability-related accommodation. (UMF 142-143.) Additionally, for the reasons previously discussed, Defendants have shown a legitimate and non-discriminatory reason for terminating Plaintiff’s employment.

Defendants have met their burden. Plaintiff did not file an opposition to create any triable issue of fact.

E. Defendants Have Proven That They Complied With Wage Statement Requirements (Sixth Cause of Action).

An employer must provide employees with the right to inspect or receive a copy of wage records pertaining to their employment, upon reasonable request to the employer and within 21 calendar days of the request. (Lab. Code, § 226, subds. (b)-(c).) An employer must also make available to an employee a copy of the personnel records relating to the employee’s performance or to any grievance concerning the employee, within 30 days of the request. (Lab. Code, § 1198.5, subds. (a)-(b).)

Defendants have met their burden. Plaintiff did not file an opposition to create any triable issue of fact.

F. Defendants Have Proven That Plaintiff Did Not Suffer Extreme Emotional Distress From Outrageous Conduct (Seventh Cause of Action).

“‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ [Citation.] ‘Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.) “Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)

Plaintiff alleges that Defendants “were aware mistreating Plaintiff and terminating Plaintiff’s employment in the manner in which they did, caused Plaintiff to suffer extreme emotional distress, and other consequential damages.” (Complaint ¶ 70.)

Plaintiff was not harassed, discriminated against, or retaliated against. (See UMF 58-61, 93-96, 214-215.) Defendants terminated Plaintiff’s employment due to reduced work and to comply with the CBA, and Plaintiff was among the two lowest-seniority employees. (UMF 65; see UMF 67.) Plaintiff did not seek any treatment for his alleged emotional distress, and he had no physical manifestations related to his alleged emotional distress. (UMF 238-239.)

Defendants have met their burden. Plaintiff did not file an opposition to create any triable issue of fact.

G. There Is No Basis For Wrongful Termination In Violation of Public Policy (First Cause of Action).

An employee may bring a tort cause of action when his employer terminates his employment in contravention of public policy. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 177.) The public policy must be “tethered to fundamental policies that are delineated in constitutional or statutory provisions.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095.)

Plaintiff bases this cause of action on policies “stated in the FEHA [Fair Employment and Housing Act], CFRA, administrative regulations promulgated thereto, California Codes, including but not limited to the Civil Code, Business and Professions Code, Government Code, Penal Code, Labor Code, Cal OSHA regulations, the California Constitution, and other criminal and common laws. Certain case law also states public policies prohibiting Defendants’ conduct.” (Complaint ¶ 29.) The only specific statutory provisions identified are those in Plaintiff’s other causes of action. Without a FEHA or Labor Code violation, there is no violation of public policy.

California’s Unfair Competition Law (“UCL”) includes any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue, or misleading advertising. (Bus. & Prof. Code, § 17200.) The UCL embraces “anything that can properly be called a business practice and that at the same time is forbidden by law.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) “By proscribing any unlawful business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.” (Ibid.)

This cause of action is based on Defendants’ other alleged conduct. (Complaint ¶¶ 76-78.) For all the reasons discussed above, there are no triable issues of fact regarding Defendants’ allegedly wrongful conduct, so there is no basis for a UCL claim.

The motion for summary judgment is GRANTED. Defendants are ordered to submit a proposed judgment within five days.

A Non-Appearance Case Review Re: Submission of Proposed Judgment is scheduled for December 6, 2023 at 9:00 a.m.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court