Judge Upinder S. Kalra, Case Number: 22STCV14618, Date: 2024-04-17 Tentative Ruling

1. If you wish to submit on the tentative ruling, please email the clerk at SMCdept51@lacourt.org (and “cc” all other parties in the same email) and notify all other parties in advance that you will not be appearing at the hearing. Include the word "SUBMISSION" in all caps in the subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you do not have access to the internet, you may call the clerk at (213) 633-0351.

If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear and argue the motion, and the Court may decide not to adopt the tentative ruling. Please note that the tentative ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question which are not authorized by statute or Rule of Court.

2. For any motion where no parties submit to the tentative ruling in advance, and no parties appear at the motion hearing, the Court may elect to either adopt the tentative ruling or take the motion off calendar, in its discretion.

3. DO NOT USE THE ABOVE EMAIL FOR ANY PURPOSE OTHER THAN TO SUBMIT TO A TENTATIVE RULING. The Court will not read or respond to emails sent to this address for any other purpose.

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

MOVING PARTY: Defendant Balenciaga America Inc. & Defendant Alejandro Ortega

1. An Order granting summary judgment in Defendant Balenciaga’s favor for the entire Complaint;

2. An Order granting summary adjudication in Defendant Balenciaga’s favor as to the first cause of action because Plaintiff was not subjected to intolerable or aggravated working conditions and a reasonable person in Plaintiff’s position would not have resigned;

3. An Order granting summary adjudication in Defendant Balenciaga’s favor as to the first cause of action because Plaintiff did not suffer an adverse employment action;

4. An Order granting summary adjudication in Defendant Balenciaga’s favor as to the first cause of action because Defendant Balenciaga acted for legitimate, non-discriminatory reasons, and there is no evidence of discriminatory animus or pretext;

5. An Order granting summary adjudication in Defendant Balenciaga’s favor as to the second cause of action because Plaintiff did not suffer any actionable harassment;

6. An Order granting summary adjudication in Defendant Balenciaga’s favor as to the third cause of action because Plaintiff was not subjected to intolerable or aggravated working conditions and a reasonable person in Plaintiff’s position would not have resigned;

7. An Order granting summary adjudication in Defendant Balenciaga’s favor as to the third cause of action because Defendant Balenciaga’s employment decisions were justified and there is no evidence of pretext or discriminatory motive;

8. An Order granting summary adjudication in Defendant Balenciaga’s favor as to the fourth cause of action because there is no evidence of extreme and outrageous conduct; and

9. An Order granting summary adjudication in Defendant Balenciaga’ favor as to Plaintiff’s claim for punitive damages because there is no clear and convincing evidence that any officer, director, or managing agent of Defendant Balenciaga acted with fraud, malice or oppression.

1. An Order granting summary judgment in Defendant Ortega’s favor for the entire Complaint;

2. An Order granting summary adjudication in Defendant Ortega’s favor as to the second cause of action because Plaintiff did not suffer any actionable harassment by Defendant Ortega;

3. An Order granting summary adjudication in Defendant Ortega’s favor as to the fourth cause of action because there is no evidence of extreme and outrageous conduct by Defendant Ortega which was intended to, and did, cause Plaintiff extreme emotional distress; and

4. An Order granting summary adjudication in Defendant Ortega’s favor as to Plaintiff’s claim for punitive damages because Plaintiff cannot establish clear and convincing evidence of fraud, malice, or oppression by Defendant Ortega.

On May 3, 2022, Plaintiff Karen Lin (“Plaintiff”) filed a complaint against Defendant Balenciaga America, Inc., and Alejandro Ortega (“Defendants.”). The complaint alleged four causes of action: (1) Discrimination on the basis of National Origin in Violation of FEHA, (2) Harassment on the basis of National Origin in Violation of FEHA, (3) Constructive Wrongful Termination in Violation of Public Policy, and (4) Intentional Infliction of Emotional Distress.

Plaintiff alleges that she worked for Defendant starting in 2018. During her time there, Plaintiff alleges that she was discriminated against based on her national origin. Plaintiff was harassed, singled out, and humiliated because Plaintiff was Chinese. Because of various incidents of discrimination, the only other associate of Chinese national origin was forced to quit in 2020, leaving Plaintiff the only associate of Chinese national origin. Eventually, Plaintiff was forced to leave her position due to the discriminatory nature of Defendants.

On July 22, 2022, Defendants Balenciaga America, Inc., and Alejandro Ortega filed an Answer.

On May 5, 2023, Defendant Balenciaga America, Inc., filed a Motion for Summary Judgment, or alternatively, Summary Adjudication.

On May 5, 2023, Defendant Ortega filed a Joinder to Motion for Summary Judgment, or alternatively, Summary Adjudication.

On May 15, 2023, Defendant Ortega filed a Motion for Summary Judgment, or alternatively, Summary Adjudication.

On May 19, 2023, the parties stipulated to continue the hearing on Defendants’ MSJs to August 2, 2023.

On July 10, 2023, Plaintiff moved ex parte to continue the hearing on Defendants’ MSJs. The court GRANTED Plaintiff’s ex parte application and continued the hearing date to October 20, 2023.

On October 10, 2023, the parties stipulated to continue the hearing on Defendants’ MSJs to February 2, 2024.

On February 2, 2024, the Court conducted the initial hearing on the MSJ. The Court continued the matter in order for counsel to file an updated separate statement and additional points and authorities not to exceed seven pages based upon the holding of Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal. App. 5th 865.

The court declines to rule on the objections as immaterial. (Code Civ. Proc., § 437c, subd. (q).)

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP § 437c(a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP § 437c(c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

When a plaintiff alleges a cause of action for discrimination under FEHA, California courts apply the three-step burden-shifting test set forth by the United States Supreme Court in McDonnell Douglas Corp. v Green (1973) 411 U.S. 792 (McDonnell Douglas) to evaluate the claim. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520 (Reid); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) The McDonnell Douglas test “reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.” (Guz, supra, at p. 354.)

Under the three-part McDonnell Douglas test, the plaintiff has the initial burden of establishing a prima face case of discrimination by providing evidence that “(1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought or was performing competently in the position he [or she] held, (3) he [or she] suffered an adverse employment action, such as termination . . ., and 4) some other circumstance suggests discriminatory motive.” (Guz, supra, 24 Cal.4th at p. 355.) If the plaintiff establishes a prima facie case, “a presumption of discrimination arises.” (Ibid.) At this stage, “the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to ‘raise[ ] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason.” [Citations.]” (Id. at pp. 355-356.) “If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.]” (Id. at p. 356.)

In the context of a motion for summary judgment, “an employer may satisfy its initial burden of proving a cause of action has no merit by showing either that one or more elements of the prima facie case ‘is lacking, or that the adverse employment action was based on legitimate nondiscriminatory factors.’ [Citations.]” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181-1182.) If the employer shows it had a legitimate, nondiscriminatory reason for the action, the plaintiff “‘may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”’” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68-69.) “In responding to the employer’s showing of a legitimate reason for the complained-of action, the plaintiff cannot ‘“simply show the employer’s decision was wrong, mistaken, or unwise. Rather, 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,’ [citation], and hence infer ‘that the employer did not act for the [asserted] non-discriminatory reasons.’”’”’ [Citations.]” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389-390.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361.)

Issues 1, 2, 3 & 6 – National Origin Discrimination (First Cause of Action: Defendant Balenciaga Only)

Defendant Balenciaga contends that Plaintiff cannot establish a prima facie case of discrimination because she did not suffer an adverse employment action and, even assuming Plaintiff could establish a prima facie case, Defendant Balenciaga satisfied its burden of articulating legitimate, non-discriminatory reasons for its actions. Defendant Balenciaga further contends there is no competent evidence of discriminatory animus or pretext. Plaintiff argues that Defendant Balenciaga’s language policy was per se unlawful and discriminatory under Gov. Code § 12951 or Cal. Code Regs. tit. 2, § 11028. Plaintiff further argues that there is a triable issue of material fact as to whether Defendant Balenciaga articulated legitimate non-discriminatory reasons for its actions.

To establish a prima facie case for discrimination under the FEHA, a plaintiff must show 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.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

There is no dispute that Plaintiff satisfied the first two elements. There is tremendous conflict as to the latter two elements. The Court will discuss the factors in inverse order.

The event that ultimately triggered this lawsuit occurred on July 15, 2020, when Plaintiff and Defendant Ortega had a disagreement on whether Plaintiff was entitled to an approximate $400 commission on a seven-thousand-dollar sale. Defendant Balenciaga sided with Defendant Ortega. Plaintiff believed that this was the final straw in a series of events that made her working conditions so intolerable that she was forced to resign i.e. was constructively discharged.[1] Defendants contend Plaintiff voluntarily resigned on August 5, 2020.

In addition to the commission dispute, the intolerable working conditions can be summarized as follows:

(1) Over a year earlier, shortly after commencing work at Defendant Balenciaga, Plaintiff had a conversation with Defendant Ortega where he claimed that he had two employees at his prior employer fired. Plaintiff knew these individuals. They were of Chinese descent.

(2) About eight months earlier, Defendant Ortega complaint to management that Plaintiff called him a “crackhead.” Plaintiff denied the allegation. Defendant Balenciaga took no action.[2]

(3) On October 23, 2019, while attending a morning meeting, Assistant Store Manager Brittany Montgomery asked Plaintiff to button her top button of her uniform.[3]

(4) In September 2019, co-worker Taylor Yun told store management that she felt excluded when Plaintiff and another co-worker spoke “Chinese.” Plaintiff contends she was prohibited from speaking Chinese. Defendant Balenciaga denies such a prohibition was implemented but rather manager Montgaillard simply asked Plaintiff to be mindful of other employees’ feelings.

(5) At her deposition, for the first time, Plaintiff alleged that Montgaillard repeatedly referred to COVID as a Chinese Virus. [4]

Plaintiff claims that all of this complained of conduct was founded based on her national origin or race-Chinese. (Complaint ¶¶ 14, 15, 21, 22, 23, 26, 27, 34, 40, 41, and 47.)

The Court has carefully reviewed the initial Separate Statements, the updated settlement statements as well as the actual underlying evidence attached as exhibits. Of the six events listed above, Plaintiff offered evidence, through her testimony, that if believed could support discriminatory motive to two of these occurrences.

Plaintiff testified that she was pulled into meeting with Brittany and Audrey, who told her:

“That speaking Chinese forbidden and we can only speak English. . . .They said I could not speak Chinese to my colleague.” (Krill Dec. Ex. A: p. 62:17-18, p. 62:25-p. 63:1.) “They said, “Never speak Chinese.” (Krill Dec. Ex. A: p. 63;5.) Plaintiff was adamant that they both made these pronouncements. “Both of them. One kind of said it, and the other agreed.” (Krill Dec. Ex. A p. 63:6-8.) Defendant challenges the veracity of these events, insisting that they never prohibited Plaintiff from speaking Chinese.

(5) the alleged incidents where COVID is referred to as the “Chinese Virus.”

Plaintiff testified that Montgaillard “was constantly reminding me how COVID was from China.” (Krill Dec. Ex. A: p.266:11-16.) Montgaillard denies making any such comments.

While Defendant Balenciaga vehemently denies the allegations, Plaintiff has sufficiently raised a triable issued of disputed fact suggesting national origin or race played a role in these two events.

An adverse employment action is very broad and is not simply a termination or failure to promote. An adverse employment action includes “a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms , conditions or privileges of employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performances or prospects for advancement or promotion.” (CACI 2509.) Using an objective standard, the course of conduct must “reasonably likely to impair” an employee’s performance. (CACI 2509.) In other words, an adverse employment action cannot be trivial.

If the alleged conduct involving speaking Chinese and references to the origin of COVID were proven, this conduct is hardly trivial. Rather, this behavior could impair a reasonable employee’s performance. In other words, the conduct could constitute an adverse employment action.

As such, Defendant has failed in their prima facie burden to show nonexistence of any genuine issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)

Issues 1, 2 & 5 – Constructive Wrongful Termination (Third Cause of Action: Defendant Balenciaga Only)

Defendant Balenciaga contends that these claims fail because the undisputed facts show that a reasonable person in Plaintiff’s position would not have been compelled to resign on August 5, 2020, and that Plaintiff cannot prove “intolerable or aggravated” working conditions based upon racial animus. Defendant Balenciaga further contends that Plaintiff admitted she would have remained an employee if Defendant Balenciaga transferred the $400 commission to her from Defendant Ortega. Plaintiff argues that the adverse employment actions are based upon racial animus are: (1) Plaintiff’s constructive discharge, (2) her restriction from speaking Mandarin, and (3) the cumulative effect of many subtle yet damaging injuries. The

To prove a claim for constructive discharge, a plaintiff must show that the employer intentionally created or knowingly permitted working conditions so intolerable at the time of resignation that a reasonable employer would realize that a reasonable person in the employee’s shoes would be compelled to resign. (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 559–60.) Intolerable conditions are defined as either unusually aggravated or amounting to a continuous pattern. (Ibid.)

For the same reasons as articulated above, Defendant has failed in their prima facie burden to show nonexistence of any genuine issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)

Issue 4 – National Origin Harassment (Second Cause of Action: Both Defendants)

Both Defendants contend that Plaintiff cannot establish a prima facie case of harassment because a reasonable review of the totality of the circumstances shows no actionable harassment. Specifically, Defendant Balenciaga contends that the alleged conduct is nothing more than personnel management decisions, that Defendant Ortega’s statement that he influenced his prior employer to terminate two Chinese employees is not evidence of anything at all in connection with Plaintiff, and that Plaintiff’s alleged comments by Ms. Montgaillard fail to meet the objective harassment standard and did not interfere with Plaintiff’s work performance. Plaintiff argues that her claim for hostile work environment is not appropriate for disposition on summary judgment pursuant to Gov. Code § 12923(e). Plaintiff also argues there are triable facts as to whether Defendant Ortega was Plaintiff’s supervisor.

To establish a prima facie claim of harassment, a plaintiff must show: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to harassment; (3) the harassment complained of was based on a protected characteristic; (4) the harassment complained of was sufficiently pervasive to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.) Harassment is something that communicates an offensive message to the harassed employee. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) Plaintiff must show that the conduct was severe or pervasive enough to alter the conditions of employment, creating an abusive work environment based on the protected characteristic. (Fisher, supra, 214 Cal.App.3d at 851.)

Government Code section 12940, subdivision (j)(1) prohibits harassment based on a protected characteristic, such as race, religious creed, and national origin. “California courts have applied the federal threshold standard to claims of harassment and held that FEHA is violated when the harassment was ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment.’” (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464-65; Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397, 409.) Harassment claims, “focus[ ] on situations in which the social environment of the workplace becomes intolerable because the harassment ... communicates an offensive message to the harassed employee.” (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 932.) Generally, a hostile environment “is found on the theory that a series of separate acts collectively constitute one ‘unlawful employment practice.’ ” (National Railroad Passenger Corp. v. Morgan (2002) 536 U.S. 101, 117.) A single incident of harassment may be enough to constitute a hostile work environment if it “unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (Gov. Code, § 12923, subd. (b)) Additionally, individual employees may be liable for their own acts of harassment. (See Gov. Code, § 12940, subd. (j)(3); Reno v. Baird (1998) 18 Cal.4th 640, 644-45.) The court shall use the totality of the circumstances to determine whether there exists a hostile work environment and reject the “stray remarks” doctrine. (Gov. Code, § 12923, subd. (c).)

For the reasons indicated above, Defendant Balenciaga has failed in its initial burden.

As to Defendant Ortega, he is alleged to have only participated in the following three events:

(2) The conversation where Plaintiff alleges Defendant Ortega claimed that he caused two employees at his previous employer to be fired.

(3) Defendant Ortega alleging that Plaintiff called him a “crackhead.” Plaintiff, however, has presented no evidence even suggesting that the commission difference or the first three numbers above had anything to do with national origin or race elements.

Plaintiff offered no direct or circumstantial evidence that the commission disagreement or the crackhead comment had any racial or national origin basis.

More troubling was the allegation in the complaint that Defendant Ortega had “openly displayed his animus toward [Plaintiff], bragging on multiple occasions about how in his previous supervisory position at Dior, he managed to get all the sales associates of Chinese descent fired.” (Complaint ¶ 15.) The Court reviewed the actual testimony of Plaintiff, which is the only evidence as to this incident. This is what Plaintiff actually testified to:

When Defendant Ortega first started, Plaintiff was having a conversation with Ortega when he asked if Plaintiff knew Ivy and another gentleman when she worked at Dior . Plaintiff responded, “Yes. They are Chinese.” Defendant Ortega then continued, “You know I got both of them fired, right?’ (Krill Dec. Ex. A: p.194 10-13.)

Q.· · “I'm sorry.· His colleagues. ·Can you tell me exactly what he said to you in that conversation?”

A.· ·“Yes.· He told me that ‘Do you know Ivy and the other gentleman that used to work in Dior’" I said, ‘Yes.· They are Chinese.’· And he then said, ‘You know I got both of them fired; right?’· I was like, ‘No way.’· I can't remember exactly the words, but this was a conversation that happened.· I said, ‘No way.’ He said, ‘Yeah.· I was able to do that.’ That was the conversation, and it happened when he first started in the smaller store.” (Krill Dec. Ex. A: p. 194:7-18.)

Then, Plaintiff admitted that she had no idea whether Defendant Ortega caused those two Dior employee to be fired, adding that she had “no idea why left.” (Krill Dec. Ex. A: p.202:1-3.)

Thus, there is no evidence that Defendant Ortega brought up race or national origin. Rather, it was Plaintiff who identified the race of these two Dior employees. There is absolutely no evidence that this occurred on more than one occasion either. Nor is there any direct or circumstantial evidence that Defendant Ortega targeted Plaintiff because of her “Chinese origin.” (Complaint at ¶ 15.) Rather, in context, as recounted by Plaintiff early in their relationship, Plaintiff and Defendant Ortega were talking gossip about people they mutually knew at a previous common employer. Here, there is a clear disconnect between the allegations framed by the complaint and the evidence developed through Plaintiff’s testimony. In sum, there is no competent evidence of discriminatory animus.

As such, Defendant has met their prima facie burden that Plaintiff will be unable to provide an element of the offense—racial animus— and Plaintiff has failed to raise a material issue of fact to meet her burden.

As such, the Motion is granted as to Plaintiff Ortega and Denied as to Defendant Balenciaga.

Issue 7 – Intentional Infliction of Emotional Distress (Fourth Cause of Action: Both Defendants)

Both Defendants contend Plaintiff’s claim for IIED fails because Plaintiff has not alleged and cannot prove actionable “extreme and outrageous” conduct. Specifically, that personnel management decisions do not constitute extreme and outrageous conduct. Plaintiff argues that if the conduct is not extreme and outrageous then there are triable issues of fact as to whether the conduct was extreme or outrageous. Plaintiff also compares her national origin discrimination claim to sexual harassment, which may establish the outrageous conduct element.

The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct (2) directed to the plaintiff by defendant, (3) with the intention of (4) causing, or reckless disregard of the probability of causing, (5) severe or extreme emotional distress. (Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903.) For conduct to be outrageous it must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (See Ess v. Eskaton Properties, Inc. (2002) 97 Cal. App. 4th 120, 130.) Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” (Ibid.)

For the reasons articulated above, Defendant Balenciaga has failed to meet its burden and Plaintiff has failed to meet her burden as to Defendant Ortega.

Both Defendants contend that Plaintiff’s claim for punitive damages fails because there is no evidence of oppression, fraud, or malice. Plaintiff does not separately argue this point, but groups it with her argument for FEHA violations and IIED.

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).) If a jury accepts a plaintiff’s FEHA claims, such evidence could provide grounds as to whether a defendant acted with malice, oppression or fraud. (Cloud v. Casey, (1999) 76 Cal.App.4th 895, 912.) However, with respect to a corporate employer, advance knowledge and conscious disregard, authorization, ratification or an act of oppression, fraud, or malice must be shown on the part of an officer, director, or managing agent of the corporation. (Civ. Code, § 3294, subd. (b); Wilson v. Southern California Edison Co., (2015) 234 Cal.App.4th 123, 164.)

The Court finds that Plaintiff has failed to present any evidence, let alone, substantial evidence to that an officer, director, or managing agent of the corporation had such advanced knowledge and acted with conscious disregard, fraud, or malice.

Thus, Defendant’s Motion for Summary Adjudication as to Punitive Damages is GRANTED.

Defendant Balenciaga’s Motion for Summary Adjudication is GRATNED as to Punitive Damages but DENIED in all other respects.

[1]“Is more like the straw that broke the camel’s back. There are many things happened, and I decided this is going to be the last one.” (Krill Dec. Ex. A: p.143 :18-20.)

[2]After offering her denial, and “management said, ‘Okay. That’s all for today. I will talk to you later about this matter.’ ”( Krill Dec. Ex. A: p. 134:7-9.)

[3]There is not even a suggestion that Defendant made this comment because of race or national origin. Moreover, even Plaintiff did think so either. “I don’t think the uniform have anything to do with me being Chinese.” (Krill Dec. Ex. A:p. 192: 3-4.)

[4] The alleged comments called COVID-19 the Chinese Virus and alluded to Chinese people bringing COVID-19 to the store.