Judge Yolanda Orozco, Case 21STCV37047 2023-01-30 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV37047, Date: 2023-01-30 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 21STCV37047 Hearing Date: January 30, 2023 Dept: 31

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

TENTATIVE RULING

Defendants’ Motion for Summary Judgment is GRANTED.

BACKGROUND

On October 07, 2021, Plaintiff Enriqueta Gardea filed a Complaint against Defendants Lakeshore Equipment Company; Lakeshore Learning Materials; Pamela Kissinger; Starr Williams; and Does 1 to 100.

The Complaint alleges causes of action for:

1) Discrimination on the Basis of Race; Ethnicity; Ancestry; and/or National Origin; Sex/Gender; Disability in Violation of Government Code § 12900, et seq. – (Asserted Against Entity Defendants)

2) Hostile Work Environment Harassment on the Basis of Race; Ethnicity; Ancestry; and/or National Origin; Sex/Gender; Disability in Violation of Government Code § 12900, et seq. – (Asserted Against All Defendants)

3) Retaliation for Engaging in Protected Activity in Violation of Government Code § 12900, et seq. - (Asserted Against All Defendants)

4) Failure to Provide Reasonable Accommodation in Violation of Government Code § 12940(a), (i), (m), (n) - (Asserted Against All Defendants)

5) Failure to Engage in Interactive Process in Violation of Government Code § 12940(a), (i), (m), (n)) - (Asserted Against Entity Defendants)

6) Failure to Prevent Discrimination, Harassment, or Retaliation in Violation of Government Code § 12900, et seq. - (Asserted Against Entity Defendants)

7) Breach of Express Oral Contract Not to Terminate Employment Without Good Cause (Marvin v. Marvin (1976) 18 Cal.3d 660) - (Asserted Against Entity Defendants)

8) Breach of Implied-in-Fact Contract Not to Terminate Employment Without Good Cause (Marketing West, Inc. v. Sanyo Fisher (1992) 6 Cal.App.4th 603; Civil Code § 1622) - (Asserted Against Entity Defendants)

9) Negligent Hiring, Supervision, and Retention (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038) - (Asserted Against Entity Defendants)

10) Wrongful Termination of Employment in Violation of Public Policy (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167) - (Asserted Against Entity Defendants)

11) Whistleblower Retaliation in Violation of Labor Code § 1102.5, et seq. - (Asserted Against Entity Defendants)

12) Intentional Infliction of Emotional Distress (Hughes v. Pair (2009) 46 Cal.4th 1035) - (Asserted Against All Defendants)

On November 16, 2022, Defendants filed a Motion for Summary Judgment/Summary Adjudication.

Plaintiff filed opposing papers on January 13, 2023.

On January 17, 2023, Plaintiff filed a request for Dismissal, with prejudice, as to the following claims: (1) gender discrimination; (2) gender harassment; (3) breach of express oral contract not to terminate employment without good cause; and (4) breach of implied in fact contract not to terminate employment without good cause.

Defendants filed a reply on January 25, 2023.

LEGAL STANDARD

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. Atl. 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.) The moving party is entitled to summary judgment if they can show that there is no triable issue of material fact or if they have a complete defense thereto. (Aguilar, supra, 25 Cal. 4th at 843.)¿ Summary adjudication may be granted as to one or more causes of action within an action, or one or more claims for damages. (Cal. Code of Civ. Proc. §437c(f).)¿¿¿¿¿¿

A defendant moving for summary judgment bears two burdens: (1) the burden of production – presenting admissible evidence, through material facts, sufficient to satisfy a directed verdict standard; and (2) the burden of persuasion – the material facts presented must persuade the court that the plaintiff cannot establish one or more elements of a cause of action, or a complete defense vitiates the cause of action. (Code Civ. Proc., § 437c(p)(2);¿Aguilar,¿supra, 25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”¿(Id.)¿¿¿¿¿

“On ruling on a motion for summary judgment, the court is to ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.)¿¿¿

On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75 Cal.App.4th¿832, 839.)¿¿

Defeating summary judgment requires only a single disputed material fact. (See CCP § 437c(c) [a motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”] [emphasis added].) Thus, any disputed material fact means the court must deny the motion – the court has no discretion to grant summary judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿

EVIDENTIARY OBJECTIONS

Plaintiff filed evidentiary objections to the Defendants’ Response to Plaintiff’s Additional Separate Statement of Undisputed Material Facts.

The objection is OVERRULED.

Plaintiff also filed evidentiary objections to the following:

1) Exhibit A to the Declaration of John Remy, Deposition of Enriqueta Gardea (“Gardea Depo.”) 14:6-19.

2) Exhibit A to the Declaration of John Remy, Gardea Depo., 17:16-18:3.

3) Exhibit A to the Declaration of John Remy, Gardea Depo., 138:12-14.

4) Exhibit A to the Declaration of John Remy, Gardea Depo., 138:12-14.

5) Declaration of Star Williams (“Williams Decl.”) ¶8, 3:4-9.

Nos. 1 to 5 are OVERRULED.

Defendants submitted evidentiary objections to the Declaration of Enriqueta Gardea (Plaintiff).

Objections Nos. 3, 4, 5, and 15 are OVERRULED.

Objection No. 7 is SUSTAINED.

The remaining objections are immaterial to the Court’s disposition of the motion. The Court declines to rule upon them. All objections not ruled upon are preserved for appeal. (Code Civ. Proc. § 437c(q).)

Defendants also submitted evidentiary objections to the Deposition of Plaintiff Enriqueta Gardea.

Objection No. 1 is OVERRULED.

Objection No. 2 is SUSTAINED.

DISCUSSION

I. Statement of Facts

Plaintiff is a 51-year-old Hispanic/Latina Woman who began working for Defendant Lakeshore Equipment Company in 1993. (PMF 1, 5.) Plaintiff asserts that despite her 26-year career with Defendants, she was wrongfully terminated. Plaintiff had worked in various Departments and in various positions including the Production Department, Shipping Department, IS Projects Department, Order Processing Department, Inventory Control Department, DC Receiving Department and Production Department, Procurement Department, and in the Purchasing Department. (PMF 5.)

In 2016, 2017, and 2018 Plaintiff’s performance reviews showed that she exceeded expectations with her reviewer writing “Enriqueta absolutely delivers required results even in a complicated atmosphere as 2018 has been,” “She has meticulous attention to detail,” and “She is fast and productive.” (UMF 4, Gardea Decl. Ex. 2-4.)

i. March 13, 2019, Plaintiff’s Transfer to Special Services

In March 2019, Eric Solheim, Vice President of Supply Chain, offered Plaintiff a transfer to Special Services, where she would report to Pam Kissinger. (PMF 6.) Plaintiff declined the offer but was told the transfer was not optional. (PMF 6) Plaintiff was transferred to Special Services, reporting under Pam Kissinger, as of March 13, 2019. (UMF 9.)

During Plaintiff’s time at Special Services, she worked as an administrative assistant where she worked on conversions, pricing confirmation, and testing for cassette and CD players. (UMF 7.)

Plaintiff was trained on how to do conversions by both Claire Newborn and Pamela Kissinger. (Plaintiff Depo. at 53:5-57:3.) Plaintiff asserts she was told it would take a year to learn how to do conversions. (Id.) “Conversions are a sales support function by which Plaintiff (and others) were required to “convert” competitors’ list of products or a customer’s generic list of desired products into comparable Lakeshore products/item numbers.” (UMF 13.) A mistake in conversion could mean that Lakeshore could lose a sale because the product did not meet the customer’s needs. (UMF 13.)

Part of the conversion process involved some discretion in selecting alternative products to the one the customer wanted depending on the customer’s needs and what was in stock. (Plaintiff’s Depo. at 54-55.) Plaintiff was then required to type the product number into a spreadsheet. (Plaintiff Depo. at 55-56) Kissinger told Plaintiff it would take about a year for Plaintiff to learn Lakeshore’s inventory of products in order for her to select the correct product. (Plaintiff Depo. at 56:25-26:3.)

Kissinger’s Deposition testimony established that comparison selections could be subjective because Lakeshore’s product line was “changing all the time” and while Kissinger could offer one product as a comparison, Plaintiff could offer a different item “and they could both be right.” (Plaintiff’s Ex. 7 [Kissinger Depo. 86:3-21].)

ii. April 2019 Comments

Plaintiff asserts that during a one-on-one meeting in mid-April to touch base with Plaintiff, Kissinger made derogatory comments such as: “Mexicans get free tuition, free food, free this, free that; and they don’t have to work, and they’re illegals.” (Plaintiff Dep. 94.21-25.) Plaintiff’s deposition also asserts that Kissinger made comments that Kissinger thought Mexicans “were lazy and get everything for free.” (Plaintiff Depo. at 95: 15-16.) Plaintiff asserts that she felt the comments were targeted at her: “And I felt she was telling me -- because I'm Mexican she was telling me that.” (Plaintiff Depo. at 94:25-95-1.)

Kissinger denies making any derogatory comments. (Kissinger Decl. 93:18-25-94:1-11.)

Kissinger also asserts that she did not consider Plaintiff Hispanic because she did not consider ethnicity: “I didn't think about that. I've lived in Southern California for over 50 years. I think we're all part Hispanic.” (Kissinger Depo. 58:21-25-59:1-2.)

Plaintiff asserts that sometime in the summer, she reported Kissinger’s comments to Paul Escoto, Senior Manager for Supply Chain Analytics and to whom Kissinger reported. (Plaintiff Depo. 75:1-77:4.) Plaintiff asserts that Escoto responded: “She’s been here a long time.” (Plaintiff Depo. 103:18-25.)

Escoto asserts that during his time at Lake Shore, no concerns about harassment, discrimination, or employment relationship issues were ever raised with him. (Escoto Depo. 46:20-25 -47:1-17.)

iii. May 27, 2019 Complaints and June 2019 Meetings

In the week of May 27, 2019, while Kissinger was on vacation, she received phone calls from Yannen Madrigal and Claire Newburn regarding issues with Plaintiff’s work. (UMF 15.)

Kissinger does not dispute that the first complaint related to Plaintiff’s failure to communicate to Madrigal about when she would take her lunch break. (Kissinger Depo. at 87:15-90:12.) Kissinger called Plaintiff from vacation to inform Plaintiff that she was dissatisfied with Plaintiff’s lack of responsiveness. (Kissinger Depo. at 87:15-90:12.) Kissinger asserts that since Yannen Madrigal and Claire Newburn were in charge, Plaintiff showed a lack of respect because Plaintiff did not respond to them or if she did respond she did not do so loud enough “or turn around and look at Yannen so that her speech could be heard to answer the question. And Yannen had to ask again and again.” (Kissinger Depo. at 88:5-12.) Kissinger also acknowledges that Plaintiff was not talkative and that she did not speak up a lot. (55:5-6.) Kissinger asserts that the lunchtime issues were resolved after an email was sent to Plaintiff on June 6, 2019. (Kissinger Decl 104: 17-19.)

The complaint from Claire Newborn was that Plaintiff was not meeting deadlines. (Kissinger Depo. at 89:16-22.) Kissinger asserts that Plaintiff failed to meet deadlines, and that Plaintiff did not submit proof of the Conversions to Claire Newton, forcing Newtown to stay after work to complete the conversions. (Kissinger Depo. at 89:16-22.) Kissinger also asserts Plaintiff was making math errors. (Kissinger 120:16.) Plaintiff asserts that Claire never told Plaintiff that she had missed a deadline or that she was required to notify Claire about her assignment status so that Claire could re-assign and reprioritize. (Plaintiff Depo. 80:8-25-81: 1-11.) Plaintiff offered to work overtime to help Claire and be a team player, but Kissinger told her there was no overtime. (84:01.)

Kissinger acknowledges that she called Plaintiff while on vacation to reprimand her for the Complaints and for not being a team player. (87:24 -89:1-2.) According to Kissinger, the phone call included informing Plaintiff that Kissinger was frustrated with Plaintiff, that she was being disrespectful and had a bad attitude. (90:6-12.) A further follow-up meeting took place on June 04, 2019. (UMF 18.)

Plaintiff asserts that Kissinger did not trust her and took Madrigal’s and Newborn’s side because she was Hispanic given Kissinger’s comments about “Mexicans.” (Plaintiff Dep. 94.21-25.) Plaintiff expressed her concern that Kissinger did not trust her and did not want Plaintiff in her Department to Starr Williams, Director of Human Resources. (PMF 12.)

iv. Plaintiff’s Performance Issues and the Performance Improvement Plaint

Kissinger asserts that Plaintiff’s performance issues persisted. Throughout August of 2019, Claire Newborn identified mistakes Plaintiff kept making regarding pricing confirmation. (Kissinger Depo. 163:16-164:23.) Madrigal and another trainer, Heidi Morales, also had issues with Plaintiff not understanding the correct product and not or doing the assignment correctly. (Kissinger Depo. 68:2:20; 170:4-25.) Escoto attested to seeing Plaintiff’s mistakes. (Escoto Depo. 68: 9:20.)

On September 25, 2019, Kissinger placed Plaintiff on a Performance Improvement Plan (PIP). (Kissinger Depp. 94:22.) Issues with Plaintiff’s calculations and product recommendations persisted into October 2019. (Exhibit 13 to Kissinger Depo. [authenticated at pp. 135:8-136:5].)

After being placed on the PIP, Plaintiff asked Escoto for a transfer on or about October 2, 2019. (PMF 15) Plaintiff asserts that she felt she was being retaliated against for being Mexican, and that she communicated this to Escoto and so she asked for a transfer. (PMF 15) Escoto asserts that Plaintiff asked for a transfer because she stated that she felt she was not doing a good job in her current department. (Escoto Depo. 61:10-25.) The request was denied because Plaintiff was on a PIP. (Escoto Depo. 63:16-17.)

Kissinger was made aware of Plaintiff’s request for a transfer and the reason Plaintiff provided as being that Plaintiff felt she could not do the job. (Ex. 11 to Kissinger Depo. [authenticated at 131:24-132:10.)

On October 11, 2019, Plaintiff reported a wrist injury. (Plaintiff Depo. 162: 5-8.) Plaintiff asserts she was diagnosed with tendonitis which is a disability that limited a major life activity. (PMF 16.)

Before Plaintiff’s PIP was over, on October 24, 2019, Plaintiff was terminated. (UMF 46.) The decision was made by Williams and Kissinger and approved by Vice Present Eric Solheim. (UMF 49, 50.)

II. McDonnell-Douglas Burden-Shifting Framework

“In cases alleging employment discrimination, we analyze the trial court's decision on a¿motion¿for¿summary¿judgment¿using a three-step process that is based on the burden-shifting test that was established by the United States Supreme Court for trials of employment discrimination claims in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860.)

Under the McDonnell Douglass burden-shifting framework, the plaintiff bears the initial burden of establishing a prima-facie case for discrimination. (Serri, supra, 226 Cal.App.4th at 860–861.) If the plaintiff meets this burden, a presumption of discrimination is established, and the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the challenged action. (Id.) If a legitimate nondiscriminatory reason is articulated by the employer, the presumption of discrimination disappears, and the plaintiff has the opportunity to attack the employer’s proffered reason as pretext for discrimination or to offer any other evidence of discriminatory motive. (Id.) At trial, the trier of fact decides if it believes the employer’s proffered reason for the challenged action.

“The McDonnell-Douglas framework is modified in the summary judgment context. In a summary judgment motion in ‘an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ (Citation.)” (Serri, supra, 226 Cal.App.4th at 861.) “If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’” (Id. citing Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 [italics original].)

1st COA: Discrimination on the Basis of Race and Disability

The Fair Employment and Housing Act prohibits discrimination on the basis of “race,” “national origin” or “disability” “in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940 subd. (a).) A prima facie case for discrimination requires the plaintiff to show “(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.” (Park v. Board of Trustees of California State University¿(2017) 2 Cal.5th 1057, 1067–1068 [citation omitted].)

Defendants assert that Plaintiff cannot present evidence that she was terminated due to a legitimate non-discriminatory reason or present evidence of a discriminatory intent or pretext.

Defendants have presented evidence that it was not only Kissinger who found problems with Plaintiff’s work, but other colleagues including Yannen Madrigal, Claire Newborn, and Heidi Morales did as well. (UMF 18, 20, 29, 30.) Moreover, there is no documented evidence about Kissinger’s alleged remarks about “Mexicans” other than Plaintiff’s recollection of the incident. Even if the remarks were made, there is no evidence that Kissinger acted with “discriminatory animus” in placing Plaintiff on a PIP given the Defendants’ documented evidence of Plaintiff’s mistakes and complaints about her work. Palintiff has failed to present “substantial evidence that the employer's stated reasons” for her termination were “untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’” (Serri, supra, 226 Cal. App.4th at 861 [italics original].)

Plaintiff’s work mistakes and performance issues were well documented and there is no evidence that her other colleagues acted with a discriminatory animus in reporting Plaintiff’s mistakes to Kissinger. (Kissinger Depo. 163:16-164:23; Kissinger Depo. 68:2:20; 170:4-25; Escoto Depo. 68: 9:20.) Another employee was also terminated for the same reason during the relevant time which supports Defendant’s position that performance issues were cause of termination. (UMF 52.) Plaintiff has also failed to present evidence that Starr Williams acted with a discriminatory animus when she agreed with Kissinger’s decision to terminate Plaintiff. (UMF 50.)

Lastly, Plaintiff fails to state any facts to show that she was discriminated against due to her disability which was diagnosed on October 11, 2019. (UMF 43.) Other than the temporal proximity of her termination and denial of a transfer to her wrist injury, Plaintiff fails to present any evidence of disability discrimination such as inappropriate comments or specific instances of discriminatory treatment because of the injury. Moreover, Plaintiff’s assertion that she had a disability fails to rebut the presumption that her termination was due to her poor performance and that her transfer was denied only because she was on a PIP.

Since Defendants have met their initial burden and Plaintiff has failed to present substantial evidence to rebut Defendants’ evidence that Plaintiff was terminated for a legitimate nondiscriminatory reason, summary adjudication is granted as to the first cause of action.

2nd COA: Harassment on the Basis of Race and Disability

Government Code section 12940(j)(1) provides that it is unlawful for an employer to harass an employee because of the employee’s race, national origin or disability. (See Govt. Code, § 12940(j)(1).)¿Harassment occurs¿when the workplace is permeated¿with¿“discriminatory intimidation,¿ridicule and insult that is¿sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” (Serri, supra, 226 Cal.App.4th at 869.) The offensive conduct¿must be of a repeated, routine, or generalized nature when the harassing conduct is not severe. (See Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 283.) Harassment that is occasional, isolated or sporadic is insufficient. (Id.)

“The working environment must be evaluated in light of the totality of the circumstances: whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.”¿(Miller v. Dep’t of Corrections (2005) 36 Cal.4th 446,¿462.) However, negative employment decisions, such as termination or demotion, cannot¿form¿the basis of a¿hostile environment claim¿and are suited to a discrimination claim. (See Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707-11 [holding the same, however, finding that negative employment actions may be used as evidence to show animus¿in a harassment case.].)

Defendants assert that Plaintiff cannot show she experienced severe or pervasive harassment.

Plaintiff fails to demonstrate with specificity what the alleged harassing conduct was. Even if Kissinger’s comments about Mexicans are taken as true, Plaintiff fails to allege that the comments were harassing to her or were sufficiently severe to create a hostile work environment. (See Gov. Code¿§ 12923(b) [a “single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment”].)

Plaintiff also fails to show facts that she faced severe or pervasive harassment due to her disability or her race/national origin. Plaintiff fails to show that Kissinger’s other comments about work mistakes were unrelated to her work performance or alluded to Plaintiff’s race/national origin or disability. Furthermore, Plaintiff’s opposition fails to point to evidence showing that Plaintiff experienced severe or pervasive harassment.

Based on the foregoing, summary adjudication is GRANTED as to the second cause of action.

3rd and 11th COA: Retaliation in Violation of the FEHA

To establish a prima facie case of retaliation, a plaintiff must show the following: 1) the plaintiff engaged in a protected activity; 2) the plaintiff was thereafter subjected to adverse employment action by his employer, and 3) there was a causal link between the two. (Addy v. Bliss & Glennon (1996) 44 Cal. App. 4th 205, 217 [affirming summary judgment on a retaliation claim because the plaintiff did not rebut the defendant’s evidence that it had legitimate, nondiscriminatory business reasons and thus, there was no causal link between the defendant’s adverse employment actions and the plaintiff’s filing of a discrimination charge].)

Defendants assert that Plaintiff cannot prove a causal connection between her protected activity and her adverse employment action because the adverse employment actions were for non-retaliatory reasons.

Plaintiff has failed to rebut Defendants’ legitimate nondiscriminatory reason for her termination -mistakes in her work. Plaintiff asserts that she informed Escoto about Kissinger’s comments about Mexicans but fails to provide evidence that Escoto informed Kissinger about Plaintiff’s complaint. In fact, Plaintiff accuses Escoto of not taking any action regarding the Kissinger’s comments. Thus, there is no evidence that Kissinger had any reason to retaliate against Plaintiff. Moreover, Plaintiff fails to show that Kissinger retaliated against her by placing her on a PIP as the stated reasons – mistakes in the work – were well documented. In addition, there is no evidence that Plaintiff informed Starr Williams and Mario Savastano that she was being discriminated against, harassed, or retaliated against by Kissinger due to her race/national origin or disability, and therefore there is no discriminatory animus that may be attributed to them.

Even if Defendants cannot point to a specific policy that prohibits transfers when an employee is on a PIP, there is no evidence that by asking for a transfer, Plaintiff was engaging in a protected activity. (See Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 245 [finding that engaging in a protected the plaintiff must engage in “some degree of opposition to or protest of the employer's conduct or practices based on the employee's reasonable belief that the employer's action or practice is unlawful.” [italics original].)

Since Plaintiff fails to rebut Defendants’ legitimate nondiscriminatory reason for placing Plaintiff on a PIP summary judgment is GRANTED as to the third cause of action.

4th COA and 5th COA: Failure to Provide Reasonable Accommodation and Failure to Engage in the Interactive Process

The elements of a claim for failure to provide reasonable accommodation of a disability are (1) the plaintiff had a disability within the meaning of the Fair Employment and Housing Act (FEHA), (2) the plaintiff is qualified to perform the essential functions of the positions, and (3) the employer failed to reasonable accommodate the plaintiff’s disability.¿(Hernandez v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187, 1193-1194.)

“Although the interactive process is an informal process designed to identify a reasonable accommodation that will enable the employee to perform his or her job effectively (Citation), an employer's failure to properly engage in the process is separate from the failure to reasonably accommodate an employee's disability and gives rise to an independent cause of action.” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971.) “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. (Citation.)” (Id.)

Defendants assert that Plaintiff does not have a disability and that she never requested an accommodation.

Typically, an applicant or employee triggers the employer's obligation to participate in the interactive process by requesting an accommodation. (Gov. Code, § 12940, subd. (n).) Plaintiff does not dispute the fact that she made no request for accommodation. Accordingly, Plaintiff cannot show that Defendants failed to provide a reasonable accommodation since no request was ever made. Similarly, Plaintiff cannot show Defendants failed to engage in the interactive process, since Plaintiff never initiated the process.

Summary adjudication is GRANTED as to the fourth and fifth causes of action.

6th COA: Failure to Prevent Discrimination, Harassment, or Retaliation

The FEHA makes it unlawful employment practice “[f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Cal. Gov't Code § 12940(k).)

Since Plaintiff’s discrimination and harassment claims fail, so does Plaintiff’s sixth cause of action. “[B]ecause the statute does not create a stand-alone tort, the employee has no cause of action for a failure to investigate unlawful harassment or retaliation, unless actionable misconduct occurred.” (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880; see also Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1316; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288.)

Summary adjudication is GRANTED as to the sixth cause of action.

9th COA: Negligent Hiring, Supervision and Retention

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) “To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor's propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902.)

Defendants assert that Plaintiff cannot present evidence that Lakeshore knew or should have about an employee’s propensity to do a bad act. (UM 1-54.)

Plaintiff fails to address this contention in her opposing papers or present any evidence to rebut the Defendants’ evidence. Since no triable issues of fact exist, summary adjudication is GRANTED as to the ninth cause of action.

10th COA: Wrongful Termination in Violation of Public Policy

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.)

Since Plaintiff’s FEHA claims fail, so does her claim for wrongful termination in violation of public policy since her claims are premised on the same facts. (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229.) Summary adjudication is GRANTED as to the 10th cause of action

11th COA: Whistleblower Retaliation in Violation of Labor Code Section 1102.5

As explained by the California Supreme Court, Labor Code section 1102.5 “prohibits an employer from retaliating against an employee for sharing information the employee ‘has reasonable cause to believe ... discloses a violation of state or federal statute’ or of ‘a local, state, or federal rule or regulation’ with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709.)

The McDonnell Douglass burden-shifting framework does not apply to section 1102.5, instead an employee-whistleblower must establish “by a preponderance of the evidence that retaliation was a contributing factor in the employee's termination, demotion, or other adverse action, the employer then bears the burden of demonstrating by clear and convincing evidence that it would have taken the same action ‘for legitimate, independent reasons.’” (Id. at 707.) “Section 1102.6 requires whistleblower plaintiffs to show that retaliation was a ‘contributing factor’ in their termination, demotion, or other adverse action. This means plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action.’ (Id. at 7130714.)

Plaintiff fails to show by a preponderance of the evidence that she informed Escoto about Kissinger’s comments regarding Mexicans or that she informed Starr Williams and Mario Savastano that she was being discriminated against due to her race/national origin or disability.

Moreover, Plaintiff has failed to provide evidence of retaliation.

Therefore, summary adjudication is GRANTED as to the eleventh cause of action.

12th COA: Intentional Infliction of Emotional Distress.

The elements of the tort of intentional infliction of emotional distress are: “‘(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...The defendant must have engaged in ‘conduct intended to inflict injury or engaged in with the realization that injury will result.’” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

“Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)

Defendant asserts that Plaintiff cannot prove that “outrageous” or “despicable” conduct occurred. Since Plaintiff fails to address this issue in their opposing papers, the Court finds that no triable issue of fact exists as to the twelfth cause of action.

Accordingly, summary adjudication is GRANTED as to the twelfth cause of action.

Defendants’ Motion for Summary Judgment is GRANTED.

CONCLUSION

Defendants’ Motion for SUMMARY JUDGMENT IS GRANTED.

Defendant to give notice.