Swirski v. ProTec Association Services et al, No. 3:2020cv01321 - Document 46 (S.D. Cal. 2021)
Court Description: ORDER granting 32 Motion for Summary Judgment. Plaintiffs request for damages, including actual, compensatory, and punitive damages, as well as reasonable attorneys fees and costs, is denied. All pending deadlines and hearing dates are vacated, and the Clerk is instructed to terminate this case. Signed by Judge Larry Alan Burns on 12/06/2021. (jpp)
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Swirski v. ProTec Association Services et al Doc. 46 Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1433 Page 1 of 29 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 LAURA SWIRSKI, an individual, Plaintiff, 14 15 16 17 18 19 v. Case No: 3:20-cv-01321-LAB-MDD ORDER GRANTING MOTION FOR SUMMARY JUDGMENT PROTEC BUILDING SERVICES, INC., a California corporation; and DOES 1 through 10, inclusive, Defendants. 20 Plaintiff Laura Swirski filed this employment action against 21 Defendant Protect Building Services, Inc. (“Protec”), bringing claims of 22 age discrimination while she was employed at Protec as Human 23 Resources Manager. During her employment there from 2014 to 2019, 24 Swirski alleges that she was discriminated against on account of her age, 25 harassed, retaliated against, subjected to negligent and intentional 26 infliction of emotional distress, and constructively discharged. ProTec 27 disputes Swirski’s allegations and brings the present Motion for Summary 28 Judgment or, in the Alternative, Partial Summary Judgment (“Motion”). 1 3:20-cv-01321-LAB-MDD Dockets.Justia.com Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1434 Page 2 of 29 1 The Court has read and considered all documents submitted in support of 2 and in opposition to the Motion. For the reasons discussed herein, 3 ProTec’s Motion is GRANTED. 4 5 I. FACTUAL BACKGROUND A. Hiring and Employment of Swirski at ProTec 6 ProTec is a San Diego-based company which provides general 7 contracting services to homeowners’ associations across southern 8 California and southern Nevada. (Dkt. 31, Joint Statement of Undisputed 9 Facts (“JSUF”) ¶ 1). In January 2014, at the age of 53, Swirski joined 10 Protec as Human Resources Manager. (Id. ¶¶ 2–3). She was hired by 11 J. David Rauch, ProTec’s President and CEO. (Id. ¶ 6). Between that time 12 and her departure from ProTec in November 2019, her salary increased 13 from $55,000.00 to $84,000.00. (Id. ¶¶ 4, 70). 14 On August 2, 2016, Swirski sent an email to ProTec managers with 15 the subject line, “Leaders Listen,” and stating in the body of the email that 16 “[l]eaders who don’t listen will eventually be surrounded by people who 17 have nothing to say.” (Id. ¶¶ 14–15). Rauch separately forwarded 18 Swirski’s email to Andy Henley, a Business Development Manager at 19 ProTec, inadvertently copying Swirski on the email and stating: 20 21 22 23 24 25 26 What a coincidence that this seems so obviously directed at me. . . . Laura seems to be crying out for something—for me to listen to her? . . . The bottom line is that I do listen to Laura. I just don’t agree with everything she says. . . . More importantly, she doesn’t do what I ask her to do. . . . So, I could reply to her with the following: ‘Coworkers who don’t listen to (and do) what their boss asks them to do will soon be looking for another job.’ 27 (Id. ¶ 17). At a meeting shortly after this email was sent, Swirski asked to 28 speak privately with Rauch. (Id. ¶ 18). She informed him that she was 2 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1435 Page 3 of 29 1 uncomfortable with his comments and felt threatened because she wasn’t 2 sure whether Rauch was expressing negative comments about her to 3 other coworkers. (Id.). She felt that she might be fired. (Id. ¶ 122). Two 4 days later, on August 4, 2016, Swirski sent an email to other managers 5 but omitting Rauch, only to then forward that same email to Rauch, 6 apologizing for omitting him. (Id. ¶ 19). He replied, stating, “I can 7 empathize with your reluctance to sending me anything. I hope you forgive 8 my transgression 2 days ago.” (Id.). She responded, “I forgive 9 you . . . thank you for your nice note,” and “I copied a distribution list from 10 an email you had sent out . . . so, of course, you weren’t on it. Not 11 including you was an oversight on my part and not me being shy.” (Id.). A 12 few months later, on November 16, 2016, Rauch sent ProTec managers 13 an email with the subject line, “Two Great Articles from Laura,” explaining 14 the importance of listening and building personal connections with 15 employees. (Id. ¶ 23). 16 B. Age-Related Comments 17 In January 2018, ProTec engaged David Chavez, a consultant, to 18 work with ProTec’s executive team and train certain employees to use 19 DiSC, an employee assessment tool commonly used by human resources 20 managers to help promote and improve productivity, teamwork, 21 leadership, sales, and communication within the company. (Id. ¶¶ 25, 28– 22 30). The cost of DiSC training for three employees was $6,000.00. (Id. 23 ¶ 34). At a meeting with Chavez and ProTec’s executive team, Swirski 24 volunteered to train in DiSC. This prompted Candace Allen, ProTec’s 25 Chief Financial Officer (“CFO”), to ask Swirski about how long she 26 expected to remain working at ProTec. (Id. ¶ 36). On January 22, 2018, 27 following that incident, Swirski emailed the executive team, stating: 28 I want to fully answer the question Candy [Allen] 3 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1436 Page 4 of 29 asked at today’s meeting. She asked me how long I would be around in relationship to the company spending $6,000 for DiSC training. . . . I want to be clear—I have no plans to retire and I intend to work at ProTec for a long time. It’s an exciting time and I’m excited to be a part of it. I value being part of the team and I want to continue to learn and grow. 1 2 3 4 5 6 (Id. ¶ 37). In response, Rauch emailed, “Sounds good Laura. I’m glad to 7 hear that,” while Allen responded “Yay!”, and other coworkers responded 8 with smiley-face emojis. (Id. ¶¶ 38–39). In a meeting a few days later, on 9 January 23, 2018, Allen stated to Swirski that she didn’t mean to offend 10 her or imply that the question was at all age-related. (Id. ¶ 40). On 11 March 13, 2018, Swirski sent an email to herself summarizing that 12 interaction, acknowledging that Allen told her the question had nothing to 13 do with her age or retirement, and that she “[c]annot verify intent; although 14 this is not the first age related comment directed at me or regarding other 15 employees/job applicants/candidates.” (Id. ¶ 46). She further wrote, “I 16 stated it was a question asked directly of me (the second oldest in the 17 room besides Dave) and to no one else” and “that to an outside third party 18 it could appear as an age-related question and cross over the line into 19 discrimination.” (Id.). Swirski ultimately received the DiSC training. (Id. 20 ¶ 42). 21 Swirski believes others have made age-related comments to her on 22 different occasions. For instance, at a March 2018 retreat, following a 23 discussion about each member’s position and where each of them sees 24 those positions in the future, Chavez stated in front of the executive team 25 that it was unknown for how long Swirski would remain working at ProTec, 26 making her feel like she might be fired. (Id. ¶¶ 43–44, 122). Prior to that, 27 Rauch and Allen had joked to Swirski about her lack of technological 28 proficiency—jokes she believes were age-related. (Id. ¶ 45). And on 4 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1437 Page 5 of 29 1 April 6, 2018, Rauch transferred the responsibility of maintaining an Excel 2 spreadsheet with a company staffing plan from Swirski to his Executive 3 Assistant, Katie Mullins, because, as he told Swirski, Mullins was younger 4 and better at technology. (Id. ¶¶ 49–50). Swirski had also heard Rauch 5 and Henley make comments that certain potential employees were “too 6 old” or “fat” to “do the physical work of a technician” because it is 7 “dangerous” to “put them up on a ladder.” (Id. at ¶¶ 120–21). 8 Between April and December 2018, Swirski and Allen had a 9 comfortable relationship, exchanging pictures of dogs and friendly email 10 banter. (Id. ¶¶ 52–54). However, between April 2018 and mid-January 11 2019, Rauch discussed some human resources issues with Allen, not 12 Swirski. (Id. ¶ 59). When Swirski asked Rauch why he didn’t consult her, 13 he responded, “Well, I value Candy’s opinion.” (Id.). During that same time 14 frame, Rauch and Henley also had discussions about discharging an 15 employee without including Swirski in the conversation. (Id. ¶ 56). Rauch 16 explained Swirski wasn’t included because these discussions often 17 occurred at 6:00 p.m., and Swirski was not usually in the office at that 18 time. (Id. ¶ 57). 19 On January 16, 2019, Rauch sent Swirski and other ProTec 20 employees an email commemorating Swirski’s five-year anniversary with 21 the company, stating in part, “Please know that we appreciate you and all 22 look forward to another 5 or 15 years.” (Id. ¶ 61). She responded, “I know 23 I’m lucky,” and “I’m sure the next 5 years will fly by, too!” (Id. ¶ 63). In 24 February 2019, Swirski’s husband passed way, and when she returned to 25 work, Rauch told Swirski that she should bring her puppy, Gunny, into the 26 office instead of leaving her home all day. (Id. ¶¶ 66–67). Swirski began 27 bringing Gunny into the office every day. (Id. ¶ 68). 28 5 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1438 Page 6 of 29 1 C. Branco Litigation 2 Around August 2019, ProTec was tending to pending sexual 3 harassment and fraud claims made against the company by a former 4 employee, Jenny Branco. (Id. ¶ 77). Swirski was the main point of contact 5 with ProTec’s employment attorney, Michael Drenan, who requested 6 several documents from ProTec in order to evaluate Branco’s claims. (Id. 7 ¶¶ 76, 78). At one point, Branco’s attorney suggested to Drenan that “due 8 to Laura [Swirski], [Branco’s] point of contact at Human Resources, being 9 so dismissive at the time of her initial formal harassment complaint Juan, 10 agent at Defendant, she [Branco] no longer felt comfortable addressing 11 the issue at length with her.” (Id. ¶ 99). 12 Drenan sent updates about settlement demands and offers, which 13 Rauch forwarded to the executive team, copying Drenan and Mullins. (Id. 14 ¶¶ 79–80). During the course of various exchanges between the executive 15 team and Drenan, Allen asked, “Would [it help] having documented proof 16 that her alleged sexual harassment claims were actually addressed by 17 myself and HR? And that HR (Laura) [Swirski] has confirmation emails 18 from [Branco] that things [were] handled? I think Laura also has [a] 19 document disproving other statements she has made in the claim.” (Id. 20 ¶ 81). On August 29, 2019, Swirski responded to Allen’s email, copying 21 the executive team but removing Drenan from the email chain, stating: 22 23 24 25 26 I appreciate the suggestions/help. . . . I’m working with Mike as his point of contact and am providing him all the material and information I have and what he needs/wants. . . . Rather than a variety of us sending emails to Mike, perhaps we could discuss amongst ourselves first. . . . Also, can we be mindful of staying in our respective lanes? 27 28 (Id. ¶ 82). In response, with the executive team still copied, Rauch wrote: 6 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1439 Page 7 of 29 Candy [Allen] (and I) is staying in her lane. Jenny was her employee and Candy is resentful that the employee is seeking to perpetrate fraud upon us. . . . That fraud, and Mike [Drennan]’s subservient attitude (non-fighting) towards her attorney is what frustrates Candy (and me). . . . Plus, if we knew that you had the same level of concern about spending $20,000 to $70,000 then I think we would feel more comfortable to just let you handle this litigation. But, we have to live with the consequences of not having that cash. . . . But, maybe our perspective is off so let’s put this on calendar for discussion Monday. 1 2 3 4 5 6 7 8 9 10 (Id. ¶ 84). Swirski replied to Rauch and the executive team, writing in part: 11 I’ve asked you in the past that you speak with me directly if you have a concern about me and not send an email to all to vent your frustration at me at my expense. I would give you the same consideration. . . . I certainly don’t like that a former employee has brought a claim against ProTec. And, I am concerned. If I don’t seem to have the same level of concern as you and Candy, I would have to say that is your perception. My display of emotion at work may be different than yours or Candy’s. That doesn’t mean I don’t care greatly. . . . I have been in communication with Mike and if you or Candy had asked me, I could have told you that I have provided the personnel file to him that includes the arbitration. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (Id. ¶ 85). D. Swirski’s Retirement As of August 30, 2019, Swirski was feeling undermined by Rauch’s continued interference in the Branco lawsuit, though she believed that he might have gotten involved in the matter regardless of Swirski’s age. (Id. ¶¶ 88–89). At this time, she not only continued to feel grief over the 28 7 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1440 Page 8 of 29 1 passing of her husband, but also separately felt responsible for a 2 $103,000 penalty that the IRS sought to impose on ProTec for its failure to 3 file 1095-C forms with the IRS and provide them to employees. (Id. ¶ 88). 4 Tensions were further increased when, on September 16, 2019, Rauch 5 informed Swirski at a weekly executive team meeting that some 6 employees had complained about Swirski’s dog, believing she was 7 receiving special treatment by being allowed to bring Gunny to work and 8 because the baby gate and piddle pad placed in her office made 9 employees feel like they couldn’t talk to her. (Id. ¶ 102). Swirski later noted 10 that these complaints “had Candy’s fingerprint all over it. It is consistent 11 with her pattern of behavior of harassment. She tells Dave [Henley] there 12 is an issue and has him fight her fight. She is passive-aggressive and he 13 is so blind to her manipulation of him.” (Id. ¶ 103). 14 Additionally, on three separate occasions, Allen mentioned to 15 Swirski in passing that taking her dog to hospitals and retirement homes 16 as a therapy dog would be a good retirement job for Swirski. (Id. ¶ 104). 17 But Swirski told Allen that she had no intention of retiring. (Id. ¶ 105). In 18 fact, as of September 11, 2019, Swirski had intended on resigning in 19 February 2020, and had even drafted a resignation letter reflecting this 20 resignation date. However, on October 28, 2019, Swirski gave ProTec her 21 letter of resignation, stating that her last day would be on November 8, 22 2019. (Id. ¶ 106). Rauch separately emailed Chavez and stated that 23 Swirski’s resignation was a “godsend” and that he’d intended on 24 terminating her the coming Friday: “I guess she was getting frustrated 25 from [C]andy and I calling her on her not being all in.” (Id. ¶ 107). Swirski 26 also informed Drenan of her retirement and explained, “I’m able to not 27 need to work ‘for money’ anymore. . . . I had a meeting with my financial 28 planner a few months ago and he told me that I’m financially independent 8 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1441 Page 9 of 29 1 and I don’t need to work.” (Id. ¶ 108). Swirski was 59-years old when she 2 retired. (Id. ¶ 110). 3 ProTec replaced her position of Human Resources Manager with 4 that of Human Resources Director, and hired Barbara Jimenez, who was 5 52-years old, for the position. (Id. ¶¶ 114, 119). E. Swirski’s Lawsuit Against ProTec 6 7 On July 13, 2020, Swirski filed this action against ProTec, alleging 8 that she was forced to resign from ProTec due to the allegedly abusive 9 and hostile work environment, which was motivated by discrimination 10 against Swirski due to her age. (Dkt. 1, Complaint (“Compl.”)). Her 11 Complaint alleges twelve causes of action, including: age discrimination 12 under the Age Discrimination in Employment Act of 1967 (“ADEA”) and 13 California’s Fair Employment and Housing Act (“FEHA”); hostile work 14 environment under FEHA and Title VII of the Civil Rights Act of 1964 15 (“Title VII”); retaliation under Title VII and FEHA; wrongful discharge in 16 violation of public policy; failure to prevent retaliation and harassment; 17 violation of unfair business practices under California’s Unfair Competition 18 Law (“UCL”); intentional infliction of emotional distress (“IIED”); and 19 negligent infliction of emotional distress (“NIED”). (Id.). Following an 20 opportunity to complete discovery, ProTec filed the present Motion for 21 Summary Judgment on May 13, 2021, seeking judgment on Swirski’s 22 claims for constructive discharge, age discrimination, hostile work 23 environment, retaliation, failure to prevent retaliation, violation of unfair 24 business practices, IIED, and NIED. (Dkt. 32). ProTec additionally seeks 25 judgment on Swirski’s request for punitive damages. (Id.). 26 II. STANDARD OF REVIEW 27 Summary judgment is appropriate under Rule 56(a) where the 28 movant “shows that there is no genuine dispute as to any material fact 9 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1442 Page 10 of 29 1 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 2 56(a). In order to prevail, a party moving for summary judgment must 3 show the absence of a genuine issue of material fact with respect to an 4 essential element of the non-moving party’s claim, or to a defense on 5 which the non-moving party will bear the burden of persuasion at trial. See 6 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has 7 made this showing, the burden then shifts to the party opposing summary 8 judgment to identify “specific facts showing there is a genuine issue for 9 trial.” Id. at 324. The party opposing summary judgment must then present 10 affirmative evidence from which a jury could return a verdict in that party’s 11 favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986). 12 On summary judgment, the Court draws all reasonable factual 13 inferences in favor of the non-movant. Id. at 255. “Credibility 14 determinations, the weighing of the evidence, and the drawing of 15 legitimate inferences from the facts are jury functions, not those of a 16 judge.” Id. (citation omitted). “The mere existence of a scintilla of evidence 17 in support of the plaintiff’s position will be insufficient; there must be 18 evidence on which the jury could reasonably find for the plaintiff.” Id. at 19 242. The Court does not make credibility determinations or weigh 20 conflicting evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 21 (1986). Rather, the Court determines whether the record “presents a 22 sufficient disagreement to require submission to a jury or whether it is so 23 one-sided that one party must prevail as a matter of law.” Id. at 251–52. 24 25 III. ANALYSIS A. Constructive Discharge 26 The parties first disagree regarding whether Swirski establishes 27 genuine factual disputes for her wrongful constructive discharge claim. 28 (See Dkt. 32-2 at 17–18; Dkt. 34-1 at 17–19). A constructive discharge 10 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1443 Page 11 of 29 1 can serve as an adverse employment decision supporting a claim for 2 discrimination. See Jordan v. Clark, 847 F.2d 1368, 1377 (9th Cir. 1988). 3 Constructive discharge occurs when, looking at the totality of the 4 circumstances, “the working conditions deteriorate, as a result of 5 discrimination, to the point that they become sufficiently extraordinary and 6 egregious to overcome the normal motivation of a competent, diligent, and 7 reasonable employee to remain on the job to earn a livelihood and to 8 serve his or her employer.” Poland v. Chertoff, 494 F.3d 1174, 1184 (9th 9 Cir. 2007) (quoting Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th 10 Cir. 2000)) (internal quotation marks omitted). “This ‘aggravated’ claim 11 arises when plaintiff ‘presents a worst case harassment scenario, 12 harassment ratcheted up to the breaking point.’” Torres v. Nat’l Frozen 13 Foods Corp., No. 6:20-CV-01680-MC, 2021 WL 1740245, at *5 (D. Or. 14 May 3, 2021) (citing Pennsylvania State Police v. Suders, 542 U.S. 129, 15 131 (2004)). Both a hostile work environment and adverse employment 16 decisions can support a constructive discharge theory. See Penn. State 17 Police v. Suders, 542 U.S. 129, 140–41 (2004). 18 While constructive discharge is “normally a factual question left to 19 the trier of fact,” Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th 20 Cir. 1987), courts may resolve it as a matter of law where the plaintiff fails 21 to present facts showing that the situation is “sufficiently extraordinary and 22 egregious to overcome the normal motivation of a competent, diligent, and 23 reasonable employee to remain on the job.” Poland, 494 F.3d at 1186. 24 As applied in this case, the evidence presented fails to show such 25 an objectively egregious work environment that a reasonable person in 26 Swirski’s position would feel compelled to quit. Swirski offers certain 27 interactions during her tenure at ProTec as evidence of intolerable 28 conditions. She suggests a “clear and continuous pattern of her 11 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1444 Page 12 of 29 1 colleagues’ acts of discrimination,” yet notes only the following specific 2 instances: Rauch’s August 2016 email inadvertently sent to Swirski; a 3 question posed by Allen at the January 2018 DiSC training regarding how 4 long Swirski intended to remain at ProTec; and a comment made by third- 5 party consultant, Chavez, at a March 2018 retreat about how it was 6 unclear how long Swirski would remain at ProTec. 1 (Dkt. 34 at 17–18). But 7 as explained more thoroughly in the following sections, the evidence at 8 most shows isolated, intermittent remarks made to Swirski throughout a 9 three-year period that caused frustration and discomfort. Rauch’s August 10 2016 email made no mention of age or retirement, but instead focused on 11 her job performance and ability—or, rather, inability—to follow direction. 12 As for comments made by Chavez and Allen, neither of them reference 13 Swirski’s age and there is no clear indication that they were motivated by 14 discrimination or occurred because of, or on the basis of, Swirski’s age. 15 None of the criticisms made to or about her reference age and Swirski 16 herself testified that she believed at least some of the offending actions 17 may have occurred regardless of her age. (See JSUF §§ 89, 123). This is 18 not to mention that the conduct about which she now complains took 19 place over the span of a three-year period, during which time Swirski even 20 had positive relations with some of the coworkers about whom she now 21 complains. (Id. ¶¶ 52–54, 67–73). 22 23 24 25 26 27 1 Swirski makes various assertions throughout her opposition brief that aren’t supported by citations to the record and are directly belied by the evidence presented. For instance, she suggests that Swirski was denied DiSC training, when the JSUF suggests that she did indeed receive that training. (JSUF ¶ 42). She also suggests that the August 2016 email inadvertently sent by Rauch insinuated that she “was near retirement age,” (Dkt. 34-1 at 17). But while Rauch not so subtly alludes to her potential termination, there is no suggestion that his comments are at all related to her age. 28 12 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1445 Page 13 of 29 1 Moreover, courts have found that “[a]n employee who quits without 2 giving his employer a reasonable chance to work out a problem has not 3 been constructively discharged.” Poland, 494 F.3d at 1185 (quoting 4 Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996)). Here, 5 nothing in the record suggests that Swirski ever brought concerns of age 6 discrimination or harassment to the attention of anyone at ProTec. At no 7 point before her retirement did she approach anyone at ProTec to help 8 work through the alleged discrimination and harassment, and in 9 November 2019, she ultimately decided to retire, stating to others that she 10 was in a financial position to do so. (Id. ¶ 108). 11 Because the evidence presented neither indicates improper conduct 12 motivated by Swirski’s age nor shows sufficiently extraordinary or 13 egregious conditions that could support a finding of constructive 14 discharge, summary judgment is GRANTED insofar as Swirski’s claims 15 rely on a constructive discharge theory. B. Age Discrimination 16 17 ProTec seeks summary judgment as to Swirski’s age discrimination 18 claims under both the ADEA and FEHA, arguing that the facts of this case 19 don’t create a triable issue of whether Swirski suffered age discrimination. 20 Under the ADEA, it is unlawful for any employer to take an adverse 21 action against an employee “because of such individual’s age.” 29 U.S.C. 22 § 623(a). “[A] plaintiff bringing a disparate-treatment claim pursuant to the 23 ADEA must prove, by a preponderance of the evidence, that age was the 24 ‘but-for’ cause of the challenged adverse employment action.” Gross v. 25 FBL Fin. Servs., 557 U.S. 167 (2009). Likewise, under FEHA, it is an 26 unlawful 27 the . . . age . . . of any person to . . . discriminate against the person in 28 compensation or in terms, conditions or privileges of employment.” Cal. employment practice for an “employer, because of 13 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1446 Page 14 of 29 1 Gov’t Code § 12940(a). 2 In general, discrimination can be established in either of two ways— 3 by direct evidence, or by indirect evidence. Enlow v. Salem–Keizer Yellow 4 Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004); Lowe v. City of 5 Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985). If a plaintiff has no direct 6 evidence, courts generally employ the burden-shifting analysis laid out in 7 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). Under 8 McDonnell Douglas, an employee must establish that: (1) at the time of an 9 alleged adverse employment action, the employee was 40 years of age or 10 older; (2) an adverse action was taken against the employee; (3) at the 11 time of the adverse action the employee was satisfactorily performing her 12 job; and (4) some other circumstance suggesting a discriminatory motive 13 was present. See Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 355, 100 Cal. 14 Rptr. 2d 352, 8 P.3d 1089 (2000). 15 Here, Swirski argues that her age discrimination claim can be 16 established by direct evidence of ProTec’s conduct, resulting in “adverse 17 employment actions” and disparate treatment as compared with other 18 coworkers. (Dkt. 34-1 at 20). The Court finds that ProTec’s Motion must 19 be GRANTED as this claim, as Swirski has not provided direct evidence 20 of any age discrimination.2 21 According to Swirski, she experienced “multiple incidents” of 22 discrimination during her employment at ProTec. (Id. at 19). First, she 23 claims that two remarks made to her about her retirement by Allen and 24 Chavez are direct evidence of age-related discrimination. (Id.). Direct 25 evidence is “evidence, which, if believed, proves the fact of discriminatory 26 2 27 28 Given that the Court has already found insufficient evidence to make a finding of age discrimination, the Court need not rule on the issue of whether certain of Swirski’s allegations are time-barred by the applicable statute of limitations. 14 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1447 Page 15 of 29 1 animus without inference or presumption” and “typically consists of clearly 2 sexist, racist, or similarly discriminatory statements or actions by the 3 employer.” Dominguez–Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 4 1038 (9th Cir. 2005) (internal citations, quotations, and brackets omitted). 5 Here, Swirski alleges that at a work event for DiSC training, Allen 6 asked Swirski about whether she intended on remaining with ProTec or 7 retiring soon. (JSUF § 36). Later, at a work retreat, Chavez asked 8 employees to state where they see themselves in the future and 9 suggested that it was unknown for how much longer Swirski intended to 10 remain at ProTec. (Id. ¶¶ 43–44, 122). But these remarks alone, which 11 don’t even reference her age, are insufficient to establish clear 12 discrimination by ProTec, even when considered with the other evidence 13 discussed below. Instead, they appear to be discrete and isolated 14 remarks, and the Court can’t infer that they were motivated by 15 discrimination against Swirski on account of her age, as opposed to, for 16 instance, curiosity about her future personal and/or professional plans. 17 See Ayala v. Costco Wholesale Corp., No. 5:17-CV-00720-JLS-JC, 2018 18 WL 6307891, at *6 (C.D. Cal. Aug. 6, 2018) (holding that a question about 19 an employee’s age and a comment that the employee looked good for his 20 age do “not express any limitation, specification, or discrimination” and 21 “fall far short of the specific, substantial evidence a plaintiff must present 22 to create a triable issue of fact”); McInteer v. Ashley Distribution Servs., 23 Ltd., 40 F. Supp. 3d 1269, 1282 (C.D. Cal. 2014) (“By merely asking his 24 age, [employer]’s comment is ambiguous and the Court cannot infer the 25 question is reflective of any discriminatory animus, as opposed to for 26 example curiosity or admiration.”); Korte v. Dollar Tree Stores, Inc., No. 27 CIV. S–12–541 LKK, 2013 WL 2604472, at *13–14 (E.D. Cal. June 11, 28 2013) (“[E]ven when considered with the other evidence presented by 15 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1448 Page 16 of 29 1 [Plaintiff], the stray remarks he documents are insufficient to make out a 2 prima facie case that age discrimination played a role in his termination.”). 3 “Courts have regularly held that such isolated remarks are insufficient to 4 create a triable issue as to age discrimination.” Ayala, 2018 WL 6307891 5 at *6; Harris v. City of Santa Monica, 56 Cal.4th 203, 231, 152 Cal.Rptr.3d 6 392, 294 P.3d 49 (2013) (“[S]ection 12940(a) does not purport to outlaw 7 discriminatory thoughts, beliefs, or stray remarks that are unconnected to 8 employment decisionmaking.”). 9 Swirski also testified that Rauch and Allen made comments to her 10 about her technological proficiency, but the record appears to suggest that 11 such comments were not clearly motivated by age-related animus, but 12 rather were made in relation to her skills in efficiently creating and 13 managing an Excel spreadsheet. (JSUF ¶¶ 49–50). Furthermore, she 14 claims that Rauch made various comments about not hiring old people 15 because “they are dangerous” and because they “can’t put them on a 16 ladder.” (Dkt. 34-1 at 20). But Swirski hardly discusses these alleged 17 comments, and the Court therefore finds it difficult to infer their exact 18 context, including when they were made and whom they are meant to 19 reference. Nevertheless, the record reflects insufficient evidence to 20 conclude that these comments were motivated by discriminatory intent, 21 rather than by safety-related considerations for employees who may be 22 performing manual labor as part of their job requirement. The Court also 23 notes that these remarks were not made to Swirski or about her, but 24 instead seem to reference other employees who hold different positions at 25 the company. 26 Lastly, Swirski can’t show that she was replaced by a substantially 27 younger employee. See O’Connor v. Consol. Coin Caterers Corp., 517 28 U.S. 308, 313 (1996) (“[A]n inference [that a decision was based on age 16 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1449 Page 17 of 29 1 discrimination] cannot be drawn from the replacement of one worker with 2 another worker insignificantly younger.”). She claims that ProTec replaced 3 her with “younger interim and permanent employees” who were paid more 4 than her. (Dkt. 34-1 at 20). Seemingly related to this assertion, she 5 contends that ProTec replaced her with Barbara Jimenez, who was 6 younger than Swirski at the time of her hiring and received a higher 7 starting salary. (Id.). But Swirski neglects to acknowledge that Jimenez 8 was 52-years old when she was hired—above the age of forty and only 9 seven years younger than Swirski when she retired. Moreover, Jimenez 10 was hired as Human Resources Director, an elevated position to that of 11 Human Resources Manager, thus providing some explanation for the pay 12 discrepancies between the two positions. 13 The Court is unable to conclude that the alleged statements and 14 actions attributed to ProTec were motivated by discrimination against 15 Swirski. 16 uncomfortable interactions with her coworkers—interactions of the type 17 that permeate any workplace. And as previously established, the only 18 adverse action she identified is her alleged constructive discharge, but the 19 Court has already found that there was no constructive discharge. Even 20 drawing all inferences in Swirski’s favor, the Court finds that the offending 21 comments and actions do not lead to the inescapable conclusion of 22 discriminatory intent. Moreover, some of these remarks were not even 23 directed at Swirski. For these reasons, the Court concludes that there are 24 no triable issues of fact on the issue of age discrimination and GRANTS 25 summary judgment on these claims. 26 At most, she’s proffered evidence of frustrating and C. Hostile Work Environment 27 ProTec is entitled to judgment as a matter of law on Swirski’s hostile 28 work environment claim under both Title VII and FEHA. “The elements of 17 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1450 Page 18 of 29 1 a hostile work environment claim under the FEHA track the elements of 2 such a claim under Title VII.” Reitter v. City of Sacramento, 87 F.Supp.2d 3 1040, 1041 n. 1 (E.D. Cal. 2000); see also Lyle v. Warner Bros. Television 4 Prods., 38 Cal. 4th 264, 279, 42 Cal. Rptr. 3d 2, 132 P.3d 211 (2006) 5 (“California courts have adopted the [Title VII] standard for hostile work 6 environment sexual harassment claims under FEHA.”). 7 To establish a prima facie case of hostile work environment, Swirski 8 must establish that (1) she was subjected to verbal or physical conduct 9 based on her age; (2) the conduct was unwelcome; and (3) the conduct 10 was sufficiently severe or pervasive to alter the conditions of her 11 employment and create an abusive work environment. Vasquez v. Cty. of 12 Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003); Kang v. U. Lim America, 13 296 F.3d 810, 817 (9th Cir. 2002). Hostile attitudes or general incivility 14 aren’t enough. Instead, a plaintiff must establish that the workplace was 15 “permeated with discriminatory intimidation, ridicule, and insult” that is 16 “sufficiently severe or pervasive to alter the conditions of the victim’s 17 employment and create an abusive working environment.” See Harris v. 18 Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings 19 Bank, FSB v. Vinson, 477 U.S. 57, 65–67 (1986)) (internal quotation 20 marks omitted). To determine whether conduct was sufficiently severe or 21 pervasive, the Court must look to all the circumstances, including the 22 frequency of the discriminatory conduct, its severity, whether it is 23 physically threatening or humiliating, whether it is a mere offensive 24 utterance, and whether it unreasonably interferes with an employee’s work 25 performance. See Vasquez, 349 F.3d at 642. 26 In this case, Swirski argues that she endured hostile working 27 conditions while employed at ProTec, citing four specific incidents: (1) in 28 August 2016, when Rauch wrote to another coworker that Swirski “doesn’t 18 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1451 Page 19 of 29 1 do what [he] ask[s] her to do” and that “[c]oworkers who don’t listen to 2 (and do) what their boss asks them to do will soon be looking for another 3 job,” (JSUF ¶ 17); (2) in January 2018, when Swirski volunteered for DiSC 4 training, prompting Allen to ask her about how long she expected to 5 remain working at ProTec, (id. ¶ 36); (3) in March 2018, when an outside 6 consultant, Chavez, asked her how long much longer she intended to 7 work at ProTec, (id. ¶¶ 43–44); and (4) various occasions throughout her 8 employment when Swirski heard Rauch or Henley comment that a 9 potential employee was “too old” or “fat” and that it’s “dangerous” to “put 10 them up on a ladder,” (id. ¶¶ 120–21). (Dkt. 34-1 at 22). Swirski also 11 suggests that comments made to her about her technology-proficiency 12 and her dog lent to this hostile work environment. (Id.). 13 But as ProTec points out, only one of those comments actually 14 references Swirski’s age: Rauch’s comment that he was assigning a 15 certain task to Mullins and not Swirski because Mullins is younger and 16 better at technology. (Dkt. 32-3 at 23). See Saqqa v. San Joaquin Cty., 17 No. 2:20-CV-00331 WBS AC, 2021 WL 4123841, at *12 (E.D. Cal. Sept. 18 9, 2021) (“[R]emarks indicating that [Defendant] needed to hire younger 19 managers or that old managers need to retire are simply not severe or 20 humiliating enough to maintain a claim for age harassment under FEHA. 21 Though they may be offensive, a ‘reasonable jury would not find [they] 22 created a hostile work environment’ or interfered with [Plaintiff]’s 23 employment.”). And while Allen and Chavez may have mentioned 24 Swirski’s eventual retirement or asked her how long she expected to 25 remain at ProTec, such comments or questions alone are not enough to 26 support an inference that this conduct was severe or pervasive. See 27 Williams v. Lorenz, No. 15-CV-04494-BLF, 2018 WL 4003455, at *21 28 (N.D. Cal. Aug. 22, 2018) (“[T]he Court finds that Defendants’ purported 19 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1452 Page 20 of 29 1 conduct—while showing at times criticism, inappropriate comments, or 2 unnecessary 3 Plaintiff’s . . . age . . . nor did they ‘pollute the workplace [and] alter[ ] the 4 conditions of her employment.’”) (quoting Manatt v. Bank of Am., NA, 339 5 F.3d 792, 798 (9th Cir. 2003)) (alterations in original); cf. Eyraud v. Swift 6 Transportation Corp., No. 2:17-CV-00791-JAM-DB, 2018 WL 2157176, at 7 *3 (E.D. Cal. May 10, 2018) (finding that asking the plaintiff, “Exactly how 8 old are you?” or comments that the plaintiff was “old and brittle and [he 9 had] to turn around to look to see where the trailer is going” were not part 10 of a “repeat pattern of discrimination” that would rise to the level of 11 creating a hostile work environment). Nor are the occasional comments 12 about the dangers associated with hiring “old” or “fat” employees enough 13 to support a hostile work environment claim, even where they may be 14 construed as offensive. See Rhodes v. Scottsdale Cmty. Coll., No. CV-18- 15 02063-PHX-RCC, 2019 WL 7194694, at *4 (D. Ariz. Dec. 26, 2019) 16 (finding treatment was not so frequent or severely abusive to create a 17 hostile work environment, even where supervisor called plaintiff “too old” 18 or “too fat” to work in certain positions, cancelled one of plaintiff’s classes, 19 and falsely stated his job performance was subpar). instructions—neither was directed towards 20 Indeed, the conduct Swirski complains about is not the type of 21 conduct that rises to the level of hostile work environment. “The incidents 22 [Swirski] relies on were sporadic and isolated, and not the type of conduct 23 that can be said to have ‘permeated’ [Swirski]’s workplace.” Stevens v. 24 Cty. of San Mateo, No. C 04-02762 SI, 2006 WL 581092, at *5 (N.D. Cal. 25 Mar. 7, 2006), aff’d, 267 F. App’x 684 (9th Cir. 2008); see Meritor Sav. 26 Bank, FSB, 477 U.S. at 67 (“[M]ere utterance of an . . . epithet which 27 engenders offensive feelings in an employee would not affect the 28 conditions of employment to sufficiently significant degree to violate Title 20 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1453 Page 21 of 29 1 VII.”) (internal citations and quotation marks omitted); Nagar v. Found. 2 Health Sys., Inc., 57 F. App'x 304, 306 (9th Cir. 2003) (affirming under 3 FEHA that “[t]he alleged offensive remarks and conduct were insufficiently 4 severe or pervasive to alter the terms and conditions of her employment 5 and thus to create an actionable hostile work environment”). ProTec’s 6 motion for summary judgment is, therefore, GRANTED as to Swirski’s 7 hostile work environment claims under Title VII and FEHA. D. Retaliation 8 9 Swirski also brings retaliation claims against ProTec with respect to 10 her age discrimination and hostile work environment claims. (Compl. 11 ¶ 161). Retaliation claims under Title VII and FEHA require three 12 elements. “[A] plaintiff must show (1) involvement in a protected activity, 13 (2) an adverse employment action and (3) a causal link between the two.” 14 Brooks v. City of San Mateo, 229 F.3d 917, 923, 928 (9th Cir. 2000); 15 Bergene v. Salt River Project Agr. Imp. & Power Dist., 272 F.3d 1136, 16 1141 (9th Cir. 2001). Under Title VII, the second element requires that “a 17 plaintiff must show that a reasonable employee would have found the 18 challenged action materially adverse [in that] it well might have dissuaded 19 a 20 discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 21 68 (2006) (internal quotation marks omitted); Poland, 494 F.3d at 1180. 22 FEHA requires that the adverse action be conduct that “materially affect[s] 23 the terms and conditions of employment.” Yanowitz v. L’Oreal USA, Inc., 24 36 Cal. 4th 1028, 1036 (Cal. 2005). “Logic demands that any protected 25 activity engaged by a plaintiff . . . must precede the defendant’s retaliatory 26 act.” Pratt v. Delta Air Lines, Inc., No. 2:14-CV-00815, 2015 WL 2153397, 27 at *16 (C.D. Cal. May 4, 2015) (internal citations omitted) (emphasis in 28 original). reasonable worker from making or supporting a charge of 21 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1454 Page 22 of 29 1 In moving for summary judgment, ProTec argues that Swirski 2 cannot establish a prima facie case for retaliation because she didn’t 3 engage in “protected activity” under Title VII and FEHA. (Dkt. 32-2 at 25). 4 As support for this argument, ProTec points out that Swirski never 5 complained about age discrimination to Rauch or Allen during her 6 employment, nor has she presented any evidence suggesting that she 7 informed anyone from ProTec’s management about such alleged 8 discrimination. (Dkt. 35 at 9). 9 Swirski doesn’t refute this argument, but merely makes the 10 unsupported contention that she “engaged in a protected activity because 11 she opposed and notified executive team members of the discrimination 12 and differential treatment that was occurring.” (Dkt. 34-1 at 24). In support, 13 she cites three instances of allegedly adverse actions, including when: 14 1) Rauch inadvertently sent the August 2016 email; 2) Swirski volunteered 15 for DiSC training and was asked how long she intended to remain at the 16 company; and 3) Swirski asked that members of the executive team stay 17 in their “respective lanes” with respect to communicating with counsel 18 about an ongoing legal matter. (Id. at 24–25). 19 But such events don’t amount to protected activity sufficient to form 20 the basis of a retaliation claim. By her own summarization of the relevant 21 facts, Swirski never actually complained, either formally or informally, 22 about age discrimination to anyone at ProTec. None of the instances she 23 mentions even reference age, and at least two of those instances appear 24 to relate more to personal grievances in the workplace rather than to 25 unlawful discriminatory behavior. For instance, Swirski relies on Rauch’s 26 comments to her August 2016 “Leaders who don’t listen email” email as 27 evidence of protected activity, but the email exchange and her discussion 28 with Rauch afterward made no reference to her age, nor did the email 22 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1455 Page 23 of 29 1 clearly convey to any recipient that Swirski was complaining of 2 discrimination or illegal wrongdoing of any kind. Even when presented 3 with the opportunity to make such a complaint to Rauch during their 4 discussion afterward, she did not do so. As noted by the California 5 Supreme Court in Yanowitz, “complaints about personal grievances or 6 vague or conclusory remarks that fail to put an employer on notice as to 7 what conduct it should investigate will not suffice to establish protected 8 conduct [for purposes of establishing a prima facie case on a FEHA 9 retaliation claim].” Yanowitz, 36 Cal. 4th at 1043; see also Day v. Sears 10 Holdings Corp., 930 F. Supp. 2d 1146, 1177 (C.D. Cal. 2013) (finding that 11 the plaintiff failed to establish a prima facie case of retaliation where the 12 plaintiff “has adduced no evidence that she complained to her supervisors, 13 or anyone else, regarding defendants’ alleged gender discrimination”). 14 And even if Swirski could establish that her complaints constituted 15 protected activity, she has not proffered any admissible evidence to satisfy 16 the third prima facie element of causal connection between her complaints 17 and her constructive discharge. (See Dkt. 34-1 at 25). The evidence 18 presented does not suggest that the assignment of certain tasks to other 19 employees or the involvement of executive team members in HR-related 20 matters were motivated by retaliatory purposes. Moreover, Swirski 21 neglects to address the years-long time gap between some of the 22 offending conduct, like the August 2016 email exchange, and her alleged 23 constructive discharge in November 2019. Clark Cty. Sch. Dist. v. 24 Breeden, 532 U.S. 268, 273 (2001) (holding that an adverse employment 25 action must be “very close” in time to the plaintiff’s complaints for there to 26 be sufficient evidence of causality for a retaliation claim). 27 28 Accordingly, the Court GRANTS summary judgment as to Swirski’s fifth and sixth claims for retaliation under Title VII and FEHA, respectively. 23 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1456 Page 24 of 29 1 E. Failure to Prevent Retaliation and Harassment 2 ProTec argues that Swirski’s eighth and ninth claims for failure to 3 prevent retaliation and harassment, respectively, must fail because 4 Swirski can’t prevail on her underlying claims for discrimination and 5 retaliation. Indeed, because Swirski has failed to sufficiently allege that 6 she was discriminated against or harassed, her claims for failure to 7 prevent retaliation and harassment under FEHA fail. Thus, the Court 8 GRANTS summary judgment as to Swirski’s eighth and ninth claims. See 9 Blount v. Morgan Stanley Smith Barney, LLC, 624 F. App’x 965, 966 (9th 10 Cir. 2015) (“[Plaintiff] has failed to sustain an underlying discrimination or 11 retaliation claim upon which he can base a failure to prevent claim.”); 12 Goins v. Cty. of Merced, 185 F. Supp. 3d 1224, 1241 (E.D. Cal. 2016) 13 (“Because the court concludes that [Plaintiff]’s claims of retaliation cannot 14 stand as a matter of law, summary judgment as to his claim for failure to 15 prevent retaliation is also warranted in favor of defendants, and those 16 claims must likewise be dismissed.”); Cozzi v. Cty. of Marin, 787 F. Supp. 17 2d 1047, 1073 (N.D. Cal. 2011) (citing Trujillo v. North County Transit 18 Dist., 63 Cal.App.4th 280, 288–89, 73 Cal. Rptr. 2d 596 (1998)) (“[N]o suit 19 may be maintained for violation of this affirmative duty if the plaintiff has 20 not actually suffered any employment discrimination or harassment.”). 21 F. Unfair Business Practices 22 Swirski’s UCL claim likewise fails. She claims that ProTec is 23 “conducting unlawful and unfair business practices in violation of 24 § 17200.” (Dkt. 34-1 at 29). “By proscribing any unlawful business 25 practice, the UCL borrows violations of other laws and treats them as 26 unlawful practices that the unfair competition law makes independently 27 actionable.” Alvarez v. Chevron Corp., 656 F.3d 925, 933 n.8 (9th Cir. 28 2011) (alteration and internal quotation marks omitted). Thus, “[i]f a 24 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1457 Page 25 of 29 1 plaintiff cannot state a claim under the predicate law, however, [the UCL] 2 claim also fails.” Stokes v. CitiMortgage, Inc., 2014 WL 4359193, at *11 3 (C.D. Cal. Sept. 3, 2014) (internal quotation marks omitted); Eidmann v. 4 Walgreen Co., 522 F. Supp. 3d 634, 647 (N.D. Cal. 2021), appeal 5 dismissed, No. 21-15659, 2021 WL 4785889 (9th Cir. May 17, 2021) 6 (finding that the UCL’s unfair prong can’t survive “when plaintiff’s claim 7 under the unfair prong overlaps entirely with the conduct alleged in the 8 fraudulent and unlawful prongs of the UCL”). 9 Here, because Swirski’s claims under the ADEA, FEHA, and Title 10 VII fail, her UCL claim must fail. ProTec’s Motion as to Swirski’s tenth 11 claim is therefore GRANTED. 12 G. Intentional Infliction of Emotional Distress 13 ProTec’s motion for summary judgment on Swirski’s eleventh claim 14 for IIED is likewise granted. An IIED claim requires a plaintiff to allege: 15 “(1) extreme and outrageous conduct by the defendant with the intention 16 of causing, or reckless disregard of the probability of causing, emotional 17 distress; (2) the plaintiff’s suffering severe or extreme emotional distress; 18 and (3) actual and proximate causation of the emotional distress by the 19 defendant’s outrageous conduct.” Hughes v. Pair, 46 Cal. 4th 1035, 1050, 20 209 P.3d 963, 976 (2009) (citation omitted). Conduct is “outrageous when 21 it is so extreme as to exceed all bounds of that usually tolerated in a 22 civilized community.” Id. (internal quotation marks omitted). 23 In this case, none of that conduct is so “extreme and outrageous” 24 that it goes “beyond all possible bounds of decency” and would be 25 regarded as “atrocious, and utterly intolerable in a civilized community.” 26 Alcorn v. Anbro Eng’g, Inc., 2 Cal. 3d 493, 499 n.5, 468 P.2d 216, 219 27 (1970). As discussed previously, Swirski has offered evidence of various 28 instances of workplace tension between herself and other members of the 25 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1458 Page 26 of 29 1 executive team, including Rauch and Allen. But while Swirski may have 2 found comments about her retirement or her technological proficiency to 3 be offensive or even humiliating, “mere insults, indignities, threats, 4 annoyances, petty oppressions, or other trivialities” experienced in the 5 workplace 6 successfully allege an IIED claim. Cole v. Fair Oaks Fire Prot. Dist., 43 7 Cal. 3d 148, 155 n.7, 729 P.2d 743, 746 (1987) (quoting Restatement 8 (Second) of Torts § 46 comment d); see Yurick v. Superior Ct., 209 Cal. 9 App. 3d 1116, 1129, 257 Cal. Rptr. 665, 671 (Ct. App. 1989), modified 10 (May 18, 1989) (“Depending on the idiosyncrasies of the plaintiff, offensive 11 conduct which falls along the remainder of the spectrum may be irritating, 12 insulting or even distressing but it is not actionable and must simply be 13 endured without resort to legal redress.”). Similarly, the commentary or 14 actions taken in response to Swirski’s workplace performance are not the 15 type of conduct considered extreme or outrageous. For instance, Rauch’s 16 criticism of Swirski’s “Leaders who listen” email, intervention in Swirski’s 17 handling of a litigation matter, or comments about employee complaints 18 made about her are more suggestive of common microaggressions that 19 typically occur in a workplace environment rather than conduct severe 20 enough to cause emotional distress. See Cha v. Kaiser Permanente, No. 21 C-14-4672-EMC, 2015 WL 3758287, at *10 (N.D. Cal. May 6, 2015) 22 (quoting Kasperzyk v. Shetler Sec. Servs., Inc., No. C-13-3358 EMC/TEH, 23 2015 WL 1348503, at *12 (N.D. Cal. Mar. 25, 2015)) (“[P]ersonnel 24 management decisions [which] are improperly motivated do not involve 25 outrageous conduct sufficient to support an IIED claim.”) (internal 26 quotation marks omitted); Mcclelland v. Permanente Med. Grp., Inc., No. 27 2:11-CV-1224-LKK-EFB, 2013 WL 1195032, at *15 (E.D. Cal. Mar. 22, 28 2013). (“Similarly, discipline and criticism that are a normal part of the are not considered outrageous conduct sufficient to 26 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1459 Page 27 of 29 1 employment relationship do not constitute ‘outrageous’ conduct, even if it 2 is intentional and malicious.”). 3 There is a “high bar” that a plaintiff must meet in order to show 4 severe emotional distress for purposes of an IIED claim. Hughes, 46 Cal. 5 4th at 1051. And based on the evidence presented, Swirski is plainly 6 unable to meet this high standard. Therefore, the Court GRANTS 7 summary judgment in favor of ProTec as to the eleventh cause of action 8 for IIED. 9 H. Negligent Infliction of Emotional Distress 10 Under California law, the “negligent causing of emotional distress is 11 not an independent tort but the tort of negligence.” Marlene F. v. Affiliated 12 Psychiatric Med. Clinic, Inc., 48 Cal. 3d 583, 588, 770 P.2d 278, 281 13 (1989) (citing 6 Witkin, Summ. Cal. Law Torts § 838 (9th ed.1988)). A 14 claim for negligence under California law requires that a plaintiff allege 15 that (1) the defendant owed the plaintiff a duty of care, (2) the defendant 16 breached that duty, (3) that the breach was the legal and proximate cause 17 of the plaintiff’s injury, and (4) the plaintiff suffered damages. Paz v. State 18 of California, 22 Cal. 4th 550, 559, 994 P.2d 975, 980 (2000). To state a 19 claim for negligence, Swirski must point to negligent conduct that 20 fundamentally caused the harm. Tu v. UCSD Med. Ctr., 201 F. Supp. 2d 21 1126, 1131 (S.D. Cal. 2002) (citing Molien v. Kaiser Found. Hosps., 27 22 Cal. 3d 916, 921, 616 P.2d 813, 815 (1980)). 23 In support of her NIED claim, Swirski contends that Rauch’s August 24 2016 email and the questions posed by Allen and Chavez about her future 25 employment plans caused her “severe and extreme mental and emotional 26 distress, including but not limited to anguish, humiliation, embarrassment, 27 loss of confidence, fright, depression, and anxiety.” (Compl. ¶¶ 238, 248). 28 But the alleged conduct here, like most “misconduct attributed to the 27 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1460 Page 28 of 29 1 employer” generally, consists of “actions which are a normal part of the 2 employment relationship, such as demotions, promotions, criticism of work 3 practices, and frictions in negotiations as to grievances.” Cole, 43 Cal.3d 4 at 160. In such a case, “an employee is confined to workers’ 5 compensation recovery for emotional injuries negligently inflicted as part 6 of the normal employment relationship.” Robomatic, Inc., v. Vetco 7 Offshore, 225 Cal. App. 3d 270, 275, 275 Cal. Rptr. 70, 73 (Ct. App. 8 1990). Therefore, Swirski’s allegations cannot support a claim for 9 negligent infliction of emotional distress. 10 Moreover, courts have held that such discrimination as alleged here 11 is inherently “intentional” conduct—not negligent conduct—and therefore 12 not within the scope of a NIED claim. See Tu, 201 F. Supp. 2d at 1131. 13 Indeed, Swirski’s NIED claim, like her IIED claim, relies on the same set of 14 allegations regarding adverse employment actions taken by ProTec. Even 15 though the intentionality of the conduct was not the basis of her IIED 16 claim’s failure, it does serve as the basis for the failure of her claim here. 17 See Edwards v. U.S. Fid. & Guar. Co., 848 F. Supp. 1460, 1466 (N.D. 18 Cal. 1994), aff’d, 74 F.3d 1245 (9th Cir. 1996) (internal citations and 19 quotation marks omitted) (““[W]here the conduct alleged is intentional, it 20 cannot be used as a basis for a negligent infliction of emotional distress 21 claim.”); Rascon v. Diversified Maint. Sys., No. 1:13-CV-1578 AWI JLT, 22 2014 WL 1572554, at *10 (E.D. Cal. Apr. 17, 2014) (“[Defendant]’s actions 23 as described in the FAC appear to be intentional acts. As intentional acts, 24 [Defendant]’s acts are not negligent and cannot form the basis of an NIED 25 claim.”) (citations omitted). Additionally, to the extent Swirski argues that 26 ProTec failed to provide a work environment safe from discrimination after 27 it was made aware of alleged discrimination against her, the Court has 28 already found that none of the evidence presented suggests that ProTec 28 3:20-cv-01321-LAB-MDD Case 3:20-cv-01321-LAB-MDD Document 46 Filed 12/06/21 PageID.1461 Page 29 of 29 1 had any knowledge that Swirski was made the target of repeated 2 discrimination or harassment in the workplace. (Supra, Section III.C). 3 Read in the light most favorable to Swirski, these allegations don’t 4 state a claim for negligence, and the Court therefore GRANTS summary 5 judgment as to ProTec’s twelfth cause of action. 6 IV. CONCLUSION 7 For the foregoing reasons, the Court GRANTS Defendant’s Motion 8 for Summary Judgment. Accordingly, Plaintiff’s request for damages, 9 including actual, compensatory, and punitive damages, as well as 10 reasonable attorneys’ fees and costs, is denied. All pending deadlines and 11 hearing dates are vacated, and the Clerk is instructed to terminate this 12 case. 13 IT IS SO ORDERED. 14 15 Dated: December 6, 2021 16 17 Honorable Larry Alan Burns United States District Judge 18 19 20 21 22 23 24 25 26 27 28 29 3:20-cv-01321-LAB-MDD
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