Brewer v. Leprino Foods Company, Inc., No. 1:2016cv01091 - Document 36 (E.D. Cal. 2018)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART 33 Defendants' Motion for Summary Judgment and ORDER SETTING Telephonic Status Conference signed by Senior Judge Stephen M. McNamee on 7/19/2018. Telephonic Status Conference set for 9/5/2018 at 02:00 PM before Senior Judge Stephen M. McNamee. (Jessen, A)
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Brewer v. Leprino Foods Company, Inc. Doc. 36 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 Brandy Brewer, Plaintiff, 10 11 v. 12 Leprino Foods Company, Inc., Defendant. 13 14 ) ) ) ) ) ) ) ) ) ) No. CV-1:16-1091-SMM ORDER 15 Pending before the Court is Defendant Leprino Foods Company, Inc.’s (“Leprino”) 16 motion for summary judgment, or in the alternative, for partial summary judgment. (Doc. 17 331.) Plaintiff Brandy Brewer (“Brewer”) filed her opposition. (Doc. 342.) Leprino then filed 18 19 20 21 22 23 24 1 In support of Leprino’s motion, Leprino included its Joint Statement of Undisputed Material Facts, its Separate Statement of Undisputed Material Facts, the Declaration of Counsel Angela Clements and its Attachments, the Declaration of Safety Supervisor David Heinks, the Declaration of Human Resource Manager Kes Andersen, the Declaration of Plant Manager Robert Tuttrup, and its Notice of Lodging Deposition Transcripts. (Doc. 33.) 2 25 26 27 28 In support of Brewer’s opposition to Leprino’s motion, Brewer included her Response to Leprino’s Separate Statement of Undisputed Material Facts, her Separate Statement of Disputed Facts, her Notice of Lodging Deposition Transcripts, the Declaration of Plaintiff Brandy Brewer and its Attachments, the Declaration of Counsel Roman Otkupman and its Attachments, Brewer’s Objection Letter to the Declaration of Human Resource Manager Kes Anderson, Brewer’s Objection Letter to the Declaration of Safety Supervisor David Heinks, and Brewer’s Objection Letter to the Declaration of Plant Manager Robert Tuttrup. (Doc. 34.) 1 its reply in support. (Doc. 353.) After review and consideration, the Court will deny in part and grant in part Leprino’s 2 3 motion for summary judgment, and set this matter for a status hearing. 4 I. FACTUAL BACKGROUND 5 Leprino’s motion for summary judgment requires this Court to view the facts in the 6 light most favorable to Brewer, the opposing party. See Tolan v. Cotton, 134 S. Ct. 1861, 7 1866 (2014). 8 Leprino is a dairy product manufacturer, who states that it is the world’s largest 9 producer of mozzarella cheese. (Doc. 33-1 at 8.) Leprino has 12 manufacturing plants with 10 the largest plant being Lemoore West, in Lemoore, California, which currently has over 11 1,000 employees. (Id.) The Lemoore West plant operates 24 hours a day, seven days a week. 12 (Id.) 13 According to Leprino, as a manufacturer using energized equipment, one of its most 14 critical safety procedures is its Lockout/Tagout (“LOTO”) policy. (Id. at 9.) Under its LOTO 15 policy, machinery must be locked out and tagged out while an employee is working on it, 16 meaning that the energy sources are disconnected and personally locked by the employee, 17 so that the machine cannot be reenergized and energy cannot be released during employee 18 maintenance. (Id.) Leprino states that its LOTO policy reflects the company’s protection of 19 its employees, but also complies with the legal requirement to protect employees from 20 workplace injury or death while servicing or maintaining the machinery. (Id.) In 2011, 21 Leprino states that it enacted a “zero-tolerance” for violations, making even first-time 22 violations of LOTO subject to strong discipline up to and including termination. (Id.) Since 23 2011, Leprino states that at its Lemoore West plant, it terminated 11 employees, including 24 Brewer, for LOTO violations. (Id.) Of the 11, Leprino discharged Brewer and another 25 female, while the remaining nine were male employees. (Id.) 26 27 28 3 In support of its Reply, Leprino included its updated understanding of the status of its submitted Separate Statement of Undisputed Facts, its Objections to Brewer’s Evidence Submitted in Opposition to Leprino’s Motion, and its Response to Brewer’s Separate Statement of Disputed Material Facts. (Doc. 35.) -2- 1 Brewer started working at Leprino’s Lemoore West plant in 2009. (Doc. 34 at 5.) 2 Based on her work performance, in November 2010, Brewer was promoted to a group leader 3 position. (Id., Doc. 33-1 at 10.) According to Leprino, group leaders are responsible for 4 “overseeing and directing the crew and equipment operations for the Processing 5 Department.” (Doc. 33-1 at 10.) Brewer was pregnant at the time she received her promotion. 6 (Id.) Three weeks after being promoted to group leader, Brewer took three months of 7 pregnancy and maternity leave, and then returned to work with no restrictions. (Id. at 11.) 8 Shortly thereafter, Brewer took 10 weeks of leave under the Family Medical Leave Act 9 (“FMLA”) and pregnancy leave. Then, several months after that, Brewer took pregnancy and 10 baby-bonding leave for four (4) months. (Id.) Brewer returned to work without medical 11 restrictions in March 2012. (Id.) At the end of 2012 and the beginning of 2013, Brewer took 12 additional weeks of baby bonding leave. (Id.) 13 According to Brewer, she was not provided all leaves of absences she requested 14 during her employment because she requested to take her baby bonding time in March 2012, 15 but was forced back to work when her baby was six weeks old. (Doc. 34-4 at 3.) Brewer 16 states that she had to wait until right before her baby turned one to take baby bonding time. 17 (Id.) In early 2013, Brewer was approved for intermittent FMLA leave as a result of her son’s 18 severe asthma, which at one point, required his hospitalization for over a week. (Doc. 34-7 19 at 72.) As a result, at times Brewer had to take time off work in order to be with her son. (Id.) 20 According to Brewer, her supervisor, Jennifer Miranda (“Miranda”), was negatively effected 21 by Brewing using her approved intermittent FMLA to take off work. (Id. at 69, 76-77.) On 22 numerous occasions, Miranda told Brewer that she was a “bad employee” for taking the 23 FMLA leave. (Id.) Miranda also stated to Brewer that she preferred working with men 24 because they did not have family obligations, and that she was tracking Brewer’s FMLA 25 hours in order to “take it to management to get her fired.” (Id.) Miranda’s comment was 26 made in front of another supervisor, Tiffany Labuga (“Labuga”), who, after hearing it, told 27 Brewer to complain about Miranda’s conduct as Miranda was retaliating against her. (Id. at 28 53, 77, 308-09.) -3- 1 From April to June, 2014, Brewer discussed the matter with several management 2 personnel at Leprino. Brewer informed Senior Supervisor Erin McDaniel (“McDaniel”) 3 about the negative FMLA comments and the threats she received from Miranda. (Id. at 64- 4 69, Doc. 34-4 at 2.) Next, Brewer spoke with Supervisor Jason Rocha (“Rocha”) about 5 Miranda’s retaliation threats against her regarding use of FMLA leave; Rocha responded that 6 “she was lucky to have a job” at Leprino and “not flipping burgers at Burger King.” (Docs. 7 34-4 at 2, 34-7 at 85-86.) Supervisor Rocha threatened Brewer stating that if she continued 8 to complain, she could lose her job. (Id.) On July 1, 2014, Brewer further complained to 9 Processing Manager Don Doyle (“Doyle”) who had the ability to recommend hiring and 10 termination, and had 225 people reporting to him. (Doc. 34-7 at 84-85, 335-36.) Brewer told 11 Doyle about Miranda’s retaliation threats against her regarding use of FMLA leave. (Docs. 12 34-4 at 2, 34-7 at 84-85, 335-36.) Doyle told Brewer to just do her job. (Id.) 13 14 The record further shows that Brewer never filed a formal complaint of retaliation or harassment with Leprino. (Doc. 33 at 4.) 15 Brewer’s regular assignment as a group leader was to the palletizer machines, which 16 stack cases of product onto pallets for shipment to customers. (Doc. 33-1 at 12.) According 17 to Leprino, the palletizers at Lemoore West can handle 40 cases per minute. (Id.) The 18 “palletizer room” contains two palletizer machines. (Id.) The palletizer can be operated by 19 two control panels, located in different areas of the machine. (Id.) If one control panel is 20 properly locked out, none of the control panels will energize the machine. (Id.) The proper 21 LOTO procedure for servicing or clearing jams in the palletizer is to: (1) activate two points 22 of control to fully de-energize the palletizer, and (2) place a lock on the second point of 23 control. (Id.) The first point of control is a safety light curtain, which is triggered by motion 24 in front of the sensor. (Id.) Triggering the light curtain stops the palletizer but does not 25 completely de-energize it (meaning the palletizer can be started up again with a push of a 26 button). (Id.) The second point of control is the emergency stop (“E-stop”) button, which 27 must be pressed after activating the light curtain and which then must be locked with a 28 personal lock. (Id.) When the light curtain is activated, there is a loud alarm, unless the -4- 1 E-stop button is also engaged, to remind individuals that the machine is not fully 2 de-energized. (Id.) If the E-stop button is engaged, the alarm will not sound and the palletizer 3 cannot be started at a control panel until the E-stop button is disengaged. (Id.) 4 According to Brewer, supervisors at Leprino told her that certain pieces of equipment 5 were considered “gray areas” and could be de-energized by flagging the curtain and hitting 6 the E-stop. (Doc. 34-7 at 50.) Specifically, when boxes are jammed (i.e. the palletizer is 7 down), Supervisors Rocha, Labuga, Miranda, McDaniel, and Gorsman, advised Brewer not 8 to fully lock the machines out as Leprino sought to prevent down time. (Doc. 34-4 at 4.) It 9 was standard practice to hit two points of control without placing the lock on the palletizer, 10 and Brewer was instructed to do so, especially during down time as management needed to 11 have the palletizers operating. (Id., Doc. 34-7 at 97-98, 444-46, 451, 467.) In fact, it was 12 common practice to simply flag the curtain, and not hit the E-stop. (Docs. 34-4 at 4, 34-7 at 13 482-83.) On July 9th, when the palletizer machines were malfunctioning, Brewer states that 14 she was told to hurry up and get the palletizer machine running again or she would be written 15 up by Miranda. (Doc. 34-4 at 4-5.) 16 On July 9, 2014, one of the palletizer machines became jammed. (Doc. 33-1 at 13.) 17 Supervisor Miranda, who was working on another palletizer machine, came in to help get the 18 machine back up and running. (Id.) After she was unable to find the supervisor on duty, she 19 consulted with Edgar Vega, a Palletizer Operator who was operating the palletizer from the 20 control panel at the bottom of the machine. (Id. ) Vega went to restart the palletizer from the 21 control panel, but before he did so, he and Miranda heard the light curtain alarm sounding. 22 (Id.) Both employees then looked up to a large mirror that was positioned to see onto the 23 roller bed of the palletizer. (Id.) They saw a female employee in the palletizer machine, on 24 top of the roller bed on the second story of the machine. (Id.) Miranda went up near the area 25 and observed Brewer climbing off of the rollers. (Id.) Miranda filed an incident report, 26 contending that Brewer had violated the LOTO policy. (Id. at 14.) Per Leprino’s LOTO 27 policy, Brewer was suspended pending completion of an investigation by the Safety 28 Department, which included Miranda’s incident report. (Id.) -5- 1 Based on deposition testimony, Brewer contends that on July 9, 2014, male co- 2 workers who were also involved in getting the palletizer unjammed and were not suspended 3 pending a discharge investigation included Rodney Bowerman, Matt Garcia, Joseph Lay, 4 Tommy Chism, Hector Chavez, Jesus Alvarez, Elmer Meade, Brett Cooper, and Edgar Vega. 5 (Docs. 34-7 at 42-44, 444-46, 451, 483, 500-04, 34-4 at 1-4.) According to Brewer, on July 6 9th, when she walked into the palletizer room, she could see a bunch of people upstairs inside 7 the palletizer machine pulling boxes. (Doc. 34-7 at 100-02.) Brewer states that she and 8 Miranda entered the room at the same time and both went upstairs to the catwalk. (Id. at 9 101.) Brewer states that she went onto the catwalk to assist, and figure out what was going 10 on with the malfunctioning machine. (Id. at 102.) There was an apparent alarm sounding 11 from the palletizer machine, meaning that the light curtain had been flagged. (Id. at 99, 102.) 12 Later, Brewer went back on the catwalk alone and put the boxes back into the machine, but 13 did not get on the rollers inside the machine. (Id. at 104-05.) 14 Based on its investigation, Leprino concluded that Brewer failed to properly lock out 15 the top control panel before entering the palletizer, which put her life in imminent danger. 16 (Doc. 33-1 at 14-15.) Plant Manager Tuttrup recommended termination of Brewer’s 17 employment and she was discharged effective July 18, 2014. (Id.) 18 II. STANDARD OF REVIEW 19 Summary Judgment 20 “A party may move for summary judgment, identifying each claim or defense–or the 21 part of each claim or defense–on which summary judgment is sought.” Fed. R. Civ. P. 56(a). 22 A court must grant summary judgment if the pleadings and supporting documents, viewed 23 in the light most favorable to the nonmoving party, show “that there is no genuine issue as 24 to any material fact and the movant is entitled to judgment as a matter of law.” Id.; see 25 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v. Nevada Fed. Credit Union, 26 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines which facts are material. See 27 Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also Jesinger, 24 F.3d at 1130. 28 “Only disputes over facts that might affect the outcome of the suit under the governing law -6- 1 will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. The 2 dispute must also be genuine, that is, the evidence must be “such that a reasonable jury could 3 return a verdict for the nonmoving party.” Id.; see Jesinger, 24 F.3d at 1130. 4 A principal purpose of summary judgment is “to isolate and dispose of factually 5 unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate against 6 a party who “fails to make a showing sufficient to establish the existence of an element 7 essential to that party’s case, and on which that party will bear the burden of proof at trial.” 8 Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The 9 moving party need not disprove matters on which the opponent has the burden of proof at 10 trial. See Celotex, 477 U.S. at 323. The party opposing summary judgment may not rest upon 11 the mere allegations or denials of the party’s pleadings, but must set forth “specific facts 12 showing that there is a genuine issue for trial.” See Matsushita Elec. Indus. Co. v. Zenith 13 Radio, 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e) (1963) (amended 2010)); 14 Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). The non-movant’s 15 bare assertions, standing alone, are insufficient to create a material issue of fact and defeat 16 a motion for summary judgment. Anderson, 477 U.S. at 247-48. 17 III. DISCUSSION Claim 2, Brewer’s Disparate Treatment Claim 18 A. 19 In her Complaint, Brewer’s second cause of action alleges that her discharge from 20 Leprino was illegal discrimination based on her gender in violation of California Code § 21 12940(a) et seq., the California Fair Employment and Housing Act (“FEHA”) (Doc. 1 at 17- 22 18.) Leprino moves for summary judgment on this claim. (Doc. 33.) 23 Because of the similarity between California and federal employment discrimination 24 laws, California follows pertinent federal precedent when applying it to its own employment 25 discrimination statutes. Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 354 (Cal. 2000). The Guz 26 court recognized that California had adopted the three-stage burden-shifting McDonell 27 Douglas test for trying claims of discrimination. Id.; see also Dawson v. Entek Int’l, 630 F.3d 28 928, 934 (9th Cir. 2011) (stating that when entertaining motions for summary judgment -7- 1 regarding allegations of employment discrimination arising under state law, federal courts 2 sitting in diversity must apply McDonnell Douglas v. Green, 411 U.S. 792 (1973), and its 3 burden-shifting scheme as a federal procedural rule). McDonell Douglas requires first that 4 the employee establish a prima facie case of discrimination. Id. (further citations omitted). 5 If the employee so establishes, the burden of production shifts to the employer to articulate 6 some legitimate, nondiscriminatory reason for the challenged action. Id. (further citations 7 omitted). If the employer so articulates, the employee must show that the articulated reason 8 is pretextual “either directly by persuading the court that a discriminatory reason more likely 9 motivated the employer or indirectly by showing that the employer’s proffered explanation 10 is unworthy of credence.” Id. (internal quotations and further citations omitted). In light of 11 the similarities between the FEHA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 12 § 2000e–2(a), courts routinely rely on both California and federal case law. See Brooks v. 13 City of San Mateo, 229 F.3d 917, 923 n.3 (9th Cir. 2000). 14 A prima facie case of discrimination under FEHA requires the plaintiff to show “‘that 15 (1) [she] was a member of a protected class, (2) [she] was qualified for the position [she] 16 sought or was performing competently in the position [she] held, (3) [she] suffered an 17 adverse employment action, such as termination, demotion, or denial of an available job, and 18 (4) some other circumstance suggests discriminatory motive.’” Zeinali v. Raytheon, 636 F.3d 19 544, 552 (9th Cir. 2011) (quoting Guz, 24 Cal. 4th at 355). 20 However, when an employer moves for summary judgment, the employer bears the 21 initial burden. See Lawler v. Montblanc North America, LLC, 704 F.3d 1235, 1242 (9th Cir. 22 2013). The employer is required to show either that the employee cannot establish one of the 23 elements of the prima facie case or that there was a legitimate, nondiscriminatory reason for 24 its decision to terminate Plaintiff’s employment. Id. If the employer meets its burden, the 25 burden shifts and the employee must demonstrate either that the defendant’s showing was 26 insufficient or that there was a triable issue of fact material to the defendant’s showing. Id. 27 At the summary judgment stage, the plaintiff does not have to prove that the employer’s 28 reason for firing her was a pretext for discrimination, but the plaintiff must introduce -8- 1 evidence sufficient to raise a genuine issue of material fact as to whether the employer’s 2 reason was pretextual. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 3 2000). 4 Leprino first argues that Brewer cannot establish her prima facie case of 5 discrimination in that she cannot show that similarly situated male employees were treated 6 more favorably. (Doc. 33 at 2-4.) Specifically, Leprino argues that Brewer cannot show that 7 similarly situated male employees were not discharged for similar violations of the LOTO 8 safety policy. (Id.) Additionally, Leprino contends that its discharge of Brewer for the LOTO 9 safety violation was a legitimate, nondiscriminatory reason for its decision to terminate her 10 employment. (Id.) According to Leprino, Plant Manager Tuttrup’s decision to discharge 11 Brewer was based on a legitimate reason, her LOTO safety violation, not gender 12 discrimination. (Id.) Leprino contends that numerous employees have been discharged for 13 the LOTO safety violation, both men and women. (Id.) 14 Brewer disputes Leprino’s arguments. (Docs. 34-7 at 100-110, 34-1 at 3-4.) Brewer 15 testified that similarly situated male employees were not discharged for similar violations of 16 the LOTO safety policy. (Id.) It is undisputed that Miranda was Brewer’s supervisor as well 17 as the supervisor over other employees assigned to the palletizer machines. Brewer submitted 18 the deposition of co-worker Elmer Meade, who admitted that numerous male employees have 19 violated the LOTO safety policy in front of their supervisors with no action being taken 20 against them; in fact Meade admitting that he was one of those male employees. (Doc. 34-7 21 at 444-52, 483.) Meade testified that Miranda “looked the other way” regarding these similar 22 incidents and did not report them as required. (Id.) Edgar Vega testified to the same, male 23 employees violating the LOTO safety policy with no action being taken against them. (Id. 24 at 34-7 at 406-07, 413-14.) 25 The Ninth Circuit Court of Appeals “has set a high standard for the granting of 26 summary judgment in employment discrimination cases.” Schnidrig v. Columbia Mach., Inc., 27 80 F.3d 1406, 1410 (9th Cir. 1996). As the Ninth Circuit has explained, “[w]e require very 28 little evidence to survive summary judgment in a discrimination case, because the ultimate -9- 1 question is one that can only be resolved through a ‘searching inquiry’—one that is most 2 appropriately conducted by the factfinder, upon a full record.” Lam v. Univ. of Hawaii, 40 3 F.3d 1551, 1564 (9th Cir. 1994) (internal quotations omitted). 4 Here, Leprino moves for summary judgment requiring the Court to view the evidence 5 in the light most favorable to Brewer, the opposing party. See Tolan, 134 S. Ct. at 1866 6 (reversing entry of summary judgment when allegations not taken in a light most favorable 7 to the opposing party). Leprino’s discharge of Brewer for the LOTO safety violation was a 8 legitimate, nondiscriminatory reason. (Doc. 33-1 at 14-15.) At issue is whether Leprino’s 9 reason for firing Brewer was a pretext for discrimination and whether Brewer has introduced 10 sufficient evidence to raise a genuine issue of material fact as to whether Leprino’s reason 11 was a pretext for sex discrimination. See Coleman, 232 F.3d at 1282. 12 Brewer has introduced deposition testimony that similarly situated male employees 13 were not discharged for a LOTO safety violation as she was. Under Ninth Circuit precedent, 14 Brewer does not have to establish by a preponderance of the evidence that Leprino’s reason 15 for firing her was a pretext for sex discrimination; rather, Brewer must introduce evidence 16 sufficient to raise a genuine issue of material fact as to whether Leprino’s reason for 17 discharging Brewer was a pretext for sex discrimination. See id. 18 The Court finds that Brewer has introduced sufficient evidence to raise a genuine 19 issue of material fact as to whether Leprino’s reason was a pretext for sex discrimination. 20 Brewer’s submitted evidence shows that Supervisor Miranda treated similarly situated male 21 employees differently than she treated her. On July 9, 2014, male employees were all 22 removing boxes from the palletizer machine without the equipment being locked out. This 23 was done in front of Supervisor Miranda, yet these male co-workers were not suspended 24 pending a discharge investigation for a LOTO violation as was Brewer. Instead, Miranda did 25 not report their violations, and chose to look the other way. Male co-workers that were not 26 suspended pending a discharge investigation included Rodney Bowerman, Matt Garcia, 27 Joseph Lay, Tommy Chism, Hector Chavez, Jesus Alvarez, Elmer Meade, Brett Cooper, and 28 Edgar Vega. (Docs. 34-7 at 42-44, 444-46, 451, 483, 500-04, 34-4 at 1-4.) Elmer Meade - 10 - 1 admitted that male employees have violated the LOTO policies in front of their supervisors 2 with no action being taken against them. (Id.) 3 In like manner, the fact that Leprino’s discharge of Brewer was made by Plant 4 Manager Tuttrup does not insulate or provide a defense to discrimination. See Reeves v. 5 Safeway Stores, Inc., 121 Cal. App. 4th 95, 109 (Cal. App. 2004). It is undisputed that 6 Supervisor Miranda initiated the incident report finding Brewer in violation of the LOTO 7 safety policy. Such report was relied upon by the Leprino officials who made the decision 8 to terminate Brewer. Thus, the subsequent officials’ ignorance of Miranda’s discriminatory 9 actions toward Brewer is not a defense to discrimination because her report contributed 10 materially to the adverse employment decision ultimately made by Plant Manager Tuttrup. 11 See id., see also Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (stating that if the 12 committee making the decision to discharge an employee was not aware of a possible 13 discriminatory motive by the supervisor recommending discharge, that if the committee 14 “acted as the conduit of [the supervisor’s] prejudice–his cat’s-paw–the innocence of its 15 members would not spare the company from liability.”) 16 Thus, based on Ninth Circuit precedent, Brewer has produced sufficient evidence to 17 survive summary judgment. Brewer’s evidence raises a genuine issue of material fact as to 18 whether Leprino’s reason for her discharge was a pretext for sex discrimination. At trial, the 19 ultimate question of sex discrimination is one that will be resolved through a ‘searching 20 inquiry’ conducted by the jury based upon a full record. See Lam, 40 F.3d at 1564. Claim 1, Brewer’s Retaliation Claim 21 B. 22 Next, Brewer alleges that her discharge from Leprino was a retaliatory discharge in 23 violation of public policy. Brewer cites three different statutes, California’s FEHA statute 24 (gender discrimination), the FMLA federal statute, and California Labor Code § 1102.5 in 25 support of her claim. (Doc. 1 at15-16.) 26 FEHA 27 Under California’s FEHA statute, the Court has already found that Brewer has 28 produced sufficient evidence to survive summary judgment on her claim of gender - 11 - 1 discrimination. 2 FMLA, 29 U.S.C. § 2601 3 An interference claim under the FMLA does not involve the burden-shifting analysis 4 under McDonnell Douglas. The Ninth Circuit has determined that “there is no room for a 5 McDonnell Douglas type of pretext analysis when evaluating an ‘interference’ claim under 6 this statute.” Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001). 7 In order to prevail on her claim, therefore, a plaintiff must prove by a preponderance of the 8 evidence that her taking of FMLA-protected leave constituted a negative factor in the 9 decision to terminate her. Id. She can prove this claim, as one might any ordinary statutory 10 claim, by using either direct or circumstantial evidence, or both. Id. (citing Lambert v. 11 Ackerley, 180 F.3d 997 (9th Cir.1999) (en banc)). 12 Leprino contends that it did not interfere with Brewer’s employee rights under FMLA 13 by refusing to authorize FMLA leave or discouraging her from using such leave. (Doc. 33-1 14 at 21-22.) Leprino states that Brewer took over 12 months of protected FMLA leave during 15 her five years of employment, that she admitted that she returned to the same job each time 16 after leave, and that no one at Leprino ever did anything to interfere with her leave. (Doc. 17 33 at 4-5.) According to Leprino, Brewer was promoted while pregnant and on pregnancy 18 work restrictions, which was just weeks before she took FMLA maternity leave. (Id.) 19 According to Brewer, after she was approved for intermittent FMLA leave, Supervisor 20 Miranda told her on numerous occasions that she was a “bad employee” for taking the FMLA 21 leave. (Doc. 34-7 at 69, 76-77.) Miranda also stated to Brewer that she preferred working 22 with men because they did not have family obligations, and that she was tracking Brewer’s 23 FMLA hours in order to “take it to management to get her fired.” (Id.) Following Miranda’s 24 comments and threats, Brewer complained to Supervisor Labuga. (Doc. 34-7 at 308-09.) 25 Labuga confirmed that Brewer advised her of Miranda’s complaints and threats about Brewer 26 taking FMLA leave. (Id.) Brewer states that she also discussed her complaints about Miranda 27 with Supervisor McDaniel, Supervisor Jason Rocha, and Processing Manager Don Doyle. 28 (Docs. 34-7 at 64-69, 84-86, 335-36, 34-4 at 2.) Brewer states that shortly after she - 12 - 1 complained about Miranda’s comments, Miranda retaliated against her by filing a LOTO 2 policy violation against her for which she was discharged. (Doc. 34 at 7.) 3 The Court has already found that Brewer produced sufficient evidence to survive 4 summary judgment on her claim of gender discrimination involving Supervisor Miranda 5 reporting Brewer for a LOTO violation. Here, Brewer has introduced sufficient evidence to 6 raise a genuine issue of material fact as to whether Supervisor Miranda was retaliating 7 against her for taking intermittent FMLA leave, therefore, it is an additional question of fact 8 for the jury. 9 Section 1102.5 10 California courts have identified Section 1102.5 as a “whistleblower” statute, intended 11 to codify public policy providing that an employer may not take retaliatory actions against 12 employees for reports made about the workplace. See, e.g., Carter v. Escondido Union High 13 School Dist., 148 Cal. App. 4th 922, 933 (App. 2007) (identifying the provision as 14 “California’s general whistleblower statute”). To establish a prima facie case of retaliation 15 under § 1102.5, a plaintiff must show that: (1) she engaged in protected activity; (2) she was 16 then subjected to adverse employment action by her employer; and (3) there was a causal 17 link between the two. Robles v. Agreserves, Inc., 158 F. Supp.3d 952, 1007-08 (E.D. Cal. 18 2016). An employee engages in “protected activity” under § 1102.5 when she discloses 19 “reasonably based” suspicions of illegal activity to the government, law enforcement, or 20 management. Cal. Lab. Code § 1102.5(a). Whether suspicions are “reasonably based” 21 depends on whether the alleged activity violated a statute or regulation, and/or whether a 22 plaintiff was motivated to disclose by a reasonable belief a law had been broken. See Carter, 23 148 Cal. App. 4th at 933-34. 24 Leprino argues that Brewer’s whistleblower claims fail because Brewer never engaged 25 in a “protected activity” by disclosing “reasonably based” suspicions of illegal activity to the 26 government, law enforcement, or management. (Doc. 33-1 at 20.) According to Leprino, 27 Brewer never filed a formal complaint during her employment and has failed to show that 28 she believed she was disclosing any illegal activity. (Id.) Rather, Leprino contends that - 13 - 1 Brewer’s complaints regarding Supervisor Miranda encompassed only internal personnel 2 matters involving a supervisor and her employee, rather than the disclosure of a legal 3 violation. (Doc. 35 at 13.) 4 Brewer testified that her son’s medical issues resulted in her needing to take 5 intermittent leave under the FMLA. (Doc. 34-7 at 72.) According to Brewer, Supervisor 6 Miranda retaliated against her for taking leave under FMLA and made negative comments 7 and threatened to recommend her discharge regarding taking such leave. (Id. at 69, 76-77.) 8 Prior to 2014, only complaints or reports made by an employee to a governmental 9 agency were protected by alleged whistleblower retaliation under § 1102.5. See Robles, 158 10 F. Supp. 3d at 1008. Complaints or reports made internally to the employer were not 11 protected. See id. However, effective January 2014, the California Legislature amended § 12 1102.5, such that protected conduct included complaints to an employee’s employer 13 regarding alleged whistleblower retaliation. 14 Here, the Court finds that Brewer only submits conclusory allegations that she 15 engaged in protected activity by disclosing “harassing” conduct by Miranda. Miranda’s 16 alleged comment about Brewer’s use of FMLA was made in the context that Miranda 17 believed that Brewer was engaging in FMLA misuse. Even when the Court construes the 18 evidence in Brewer’s favor, no reasonable jury could find that Brewer’s alleged disclosures 19 regarding Miranda’s comments constitute “protected activity” under California’s 20 whistleblower retaliation statute, § 1102.5, and therefore, Leprino is entitled to summary 21 judgment on this alleged statutory violation. 22 As to Brewer’s allegation that her discharge from Leprino was a retaliatory discharge 23 in violation of public policy, Brewer has submitted sufficient evidence to raise a question of 24 material fact for the jury to determine whether her discharge was a retaliatory discharge in 25 violation of FEHA and the FMLA. Claim 3, Brewer’s Failure to Prevent Discrimination Claim 26 C. 27 Brewer alleges that Leprino failed to take all reasonable steps to prevent 28 discrimination and/or retaliation based on alleged gender discrimination and FMLA - 14 - 1 retaliation in violation of California Government Code § 12940(k). (Doc. 34 at 20.) 2 According to Brewer, management at Leprino failed to prevent the discriminatory disparate 3 treatment based on gender and the retaliation in violation of FMLA policy. (Id.) 4 Leprino contends that this claim fails because no action lies for failure to take steps 5 to prevent discrimination or harassment if no such conduct has in fact occurred. (Doc. 33 at 6 5.) 7 Based on the Court’s analysis of the first two claims, the Court further denies 8 Leprino’s motion for summary judgment on this claim. Whether Leprino failed to take all 9 reasonable steps to prevent discrimination against Brewer based on alleged gender 10 discrimination and FMLA retaliation in violation of California Government Code § 12940(k) 11 is a question of material fact to be submitted to the jury for its determination based on 12 appropriate jury instructions. Claim 4, Brewer’s Intentional Infliction of Emotional Distress Claim (“IIED”) 13 D. 14 Brewer alleges that management at Leprino engaged in “outrageous conduct” that was 15 intended to, and did, cause Brewer severe emotional distress, giving rise to a common law 16 cause of action for IIED. (Doc. 34 at 20-21.) 17 Here, the alleged wrongful conduct occurred at the worksite in the normal course of 18 the employer-employee relationship. Therefore, the California workers compensation statute, 19 California Workers’ Compensation Act (“WCA”), Labor Code § 3602(a), is Brewer’s 20 exclusive remedy for any alleged injury that may have resulted. See Miklosy v. Regents of 21 University of California, 44 Cal. 4th 876, 902-03 (Cal. 2008) (claims for IIED that are based 22 on alleged wrongful termination, even whistleblower allegations, preempted and barred by 23 WCA). 24 Moreover, even if her IIED claim was not pre-empted by the WCA, in order to 25 establish an IIED claim, a plaintiff must prove (1) extreme and outrageous conduct intended 26 to cause emotional distress; (2) she suffered severe or extreme distress; and (3) defendant’s 27 outrageous conduct caused her emotional distress. See Hughes v. Pair, 46 Cal. 4th 1035, 28 1050 (Cal. 2009). For conduct to be outrageous, it must be so extreme as to exceed all - 15 - 1 bounds of that usually tolerated in a civilized society. See Trerice v. Blue Cross of Cal., 209 2 Cal. App. 3d 878, 883 (1989). 3 Here, the Court alternatively finds that Brewer has not asserted the type of outrageous 4 conduct allegations that would form the basis of an IIED claim. See Janken v. GM Hughes 5 Elecs., 46 Cal. App. 4th 55, 64-65, 80 (1996) (stating that personnel management decisions, 6 such as discipline or termination, cannot form the basis of an IIED claim, even if improperly 7 motivated). 8 The Court will grant summary judgment in favor of Leprino on Brewer’s IIED claim 9 due to pre-emption by the California WCA. Alternatively, the Court finds that Brewer has 10 not asserted the type of outrageous conduct allegations that would form the basis of an IIED 11 claim. 12 IV. CONCLUSION 13 On the basis of the foregoing, 14 IT IS HEREBY ORDERED granting in part and denying in part Defendants’ motion 15 16 17 18 19 for summary judgment. (Doc. 33.) IT IS FURTHER ORDERED denying Defendants’ motion for summary judgment on Claims 1 through 3. IT IS FURTHER ORDERED granting Defendants’ motion for summary judgment on Claim 4. 20 IT IS FURTHER ORDERED setting this matter for a telephonic status conference 21 on Wednesday, September 5, 2018, at 2:00 p.m. in Courtroom 401, 401 West Washington 22 Street, Phoenix, AZ before Senior Judge Stephen M. McNamee. The parties are directed to 23 conference on one single, clear telephone line prior to calling Judge McNamee’s chambers 24 at 602-322-7555 five (5) minutes before the start of the proceeding. 25 DATED this 19th day of July, 2018. 26 27 28 - 16 -