Gutierrez v. Kaiser Foundation Hospitals, Inc. et al, No. 4:2011cv03428 - Document 73 (N.D. Cal. 2012)
Court Description: ORDER GRANTING DEFENDANTS 47 MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 10/30/2012. (ndr, COURT STAFF) (Filed on 10/30/2012)
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Gutierrez v. Kaiser Foundation Hospitals, Inc. et al Doc. 73 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 GUADALUPE GUTIERREZ, SR., 6 7 8 9 United States District Court For the Northern District of California 10 No. C 11-3428 CW Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 47) v. KAISER FOUNDATION HOSPITALS, INC. et al., Defendants. ________________________________/ 11 12 Plaintiff Guadalupe Gutierrez, Sr. brings suit against 13 Defendants Carlos Avila and Kaiser Foundation Hospitals, Inc. for 14 hostile work environment, harassment, and retaliation under the 15 California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code 16 § 12940. 17 intentional infliction of emotional distress, unfair business 18 practices, retaliation under California Labor Code section 1102.5, 19 and breach of the implied covenant of good faith and fair dealing. 20 Defendants move for summary judgment on all claims. 21 opposes the motion. 22 submissions and oral argument, the Court grants the motion. In addition, Gutierrez alleges wrongful termination, 23 24 Plaintiff Having considered all of the parties’ BACKGROUND Gutierrez began his career at Kaiser as a laboratory 25 specialist in 1987. 26 biomedical engineer in the mid ‘90s and promoted again to lead 27 biomedical engineer around 2005. 28 33:12-:17. Gutierrez Decl. ¶ 2. He was promoted to Gutierrez Dep. 21:23-22:1, As a biomedical engineer, his work primarily involves Dockets.Justia.com 1 installing, maintaining, and repairing various types of medical 2 equipment at Kaiser hospitals. 3 Gutierrez services defibrillators, fetal monitors, anesthesia 4 machines, ventilator machines, and various other pieces of 5 equipment regularly used to diagnose and treat patients. 6 Gutierrez Decl. ¶¶ 2-3. 7 Avila Decl. ¶¶ 4-5. For instance, Id.; In July 2008, Kaiser hired Elias Flores, a forty year old 8 biomedical engineer with about ten years of experience, to work 9 with Gutierrez at Kaiser’s Modesto Medical Center. Gutierrez United States District Court For the Northern District of California 10 Decl. ¶ 4; Flores Decl. ¶ 6. 11 began to notice that Gutierrez was occasionally missing from the 12 floor and his work cart was sometimes missing critical testing 13 equipment. 14 would sometimes enter information into the hospital’s database 15 indicating that he had performed tests on certain machines even 16 though Flores had not seen Gutierrez near those machines. 17 These incidents caused Flores to grow suspicious of Gutierrez’s 18 work and prompted him to review some of Gutierrez’s reports in the 19 hospital’s database. 20 seemed to be entering reports with what Flores believed were 21 “impossible readings.” 22 Flores Decl. ¶ 7. Starting in October 2008, Flores Flores also noticed that Gutierrez Id. ¶¶ 7-8. Id. Flores found that Gutierrez Id. In the spring of 2009, Flores expressed his concerns to 23 Gutierrez and offered to show Gutierrez how to conduct proper 24 tests of certain machines. 25 Flores notified his immediate supervisor and, in early June 2009, 26 conveyed his concerns to the regional head of their department, 27 Carlos Avila. Id. ¶ 9. When Gutierrez refused, Id. ¶¶ 10-11; Avila Decl. ¶ 8. 28 2 1 Later that month, two biomedical engineers from other Kaiser 2 locations, Michael Benedetti and Phil Hunt, also reported concerns 3 to Avila about equipment that Gutierrez had tested. 4 Decl. ¶ 9. 5 different Kaiser locations, including Modesto, to service 6 particular types of equipment. 7 Decl. ¶¶ 7-8. 8 of 2009, Hunt and Benedetti discovered that Gutierrez had 9 submitted service reports for two anesthesia machines with missing Avila At the time, Benedetti and Hunt were both traveling to Benedetti Decl. ¶ 7; Hunt While visiting the Modesto facility in the spring United States District Court For the Northern District of California 10 monitors. 11 it is impossible to service the machines properly without the 12 monitors, Benedetti and Hunt suspected that Gutierrez had 13 falsified the reports. 14 Decl. ¶¶ 10-11. 15 summer. 16 Benedetti Decl. ¶ 13-16; Hunt Decl. ¶¶ 8-12. Because Benedetti Decl. ¶¶ 12-13; Hunt They conveyed their concerns to Avila that Benedetti Decl. ¶ 16; Hunt Decl. ¶ 11. Avila met with Flores to discuss his concerns in June 2009 17 and, two days later, met with Benedetti and Hunt to discuss 18 theirs. 19 Plasse, attended both meetings with Avila. 20 Decl. ¶¶ 5-7. 21 substantial documentation -- including photos and hospital 22 records -- showing that Gutierrez may have falsified service 23 reports for certain machines, Avila contacted Kaiser’s national 24 Compliance & Risk Management (CRM) department to request an 25 investigation into Gutierrez’s work. 26 Decl. ¶¶ 7, 10, 11. 27 28 Avila Decl. ¶¶ 9-10. Another department manager, Ron Id.; Plasse After Flores, Benedetti, and Hunt each provided Avila Decl. ¶¶ 11-13; Plasse Later in June 2009, the CRM department sent one of its senior managers, Chrisoula Koutoulas, to investigate the allegations 3 1 against Gutierrez. 2 several of Gutierrez’s coworkers at the Modesto facility, many of 3 whom expressed doubts about his equipment-testing habits, before 4 finally meeting with Gutierrez himself on June 26, 2009, along 5 with his union representative and Avila. Gutierrez Decl. ¶ 5; 6 Avila Decl. ¶ 15; Koutoulas Decl. ¶ 14. At that meeting, Avila 7 notified Gutierrez that he would be placed on administrative 8 leave. 9 Decl. ¶ 15. United States District Court For the Northern District of California 10 Koutoulas Decl. ¶¶ 5-6. Koutoulas spoke to Gutierrez Decl. ¶ 5; Avila Decl. ¶ 17; Koutoulas Soon afterwards, Koutoulas assigned Jeff Lance, an engineer 11 from another Kaiser facility, with no knowledge of the pending CRM 12 investigation into Gutierrez, to re-test several of the machines 13 originally tested by Gutierrez. 14 Decl. ¶ 5. 15 that “falsification of equipment maintenance documentation had 16 occurred.” 17 on her review of Lance’s report and Gutierrez’s payroll records, 18 Koutoulas concluded that Gutierrez had falsified several hospital 19 equipment reports as well as numerous timecard entries. 20 Decl. ¶ 20. 21 that Gutierrez be terminated. 22 Koutoulas and Avila met once again with Gutierrez, discussed their 23 findings with him, and terminated his employment with Kaiser. 24 Id. ¶ 21; Avila Decl. ¶¶ 19-20. 25 Koutoulas Decl. ¶¶ 16-19; Lance Lance compared his results with Gutierrez’s and found Lance Decl. ¶¶ 6-7; Koutoulas Decl. ¶¶ 17-18. Based Koutoulas In early September 2009, she issued a recommendation Id. On September 9, 2009, Immediately after Gutierrez was fired, his union filed a 26 grievance challenging his dismissal. 27 process lasted twelve months and concluded in September 2010 when 28 Kaiser agreed to reinstate Gutierrez and compensate him for the 4 Id. ¶ 23. The arbitration 1 year of lost wages.1 2 part, on the fact that Gutierrez was terminated with little 3 warning despite his more than two decades of employment with 4 Kaiser. 5 and back pay award -- and as a precaution against future 6 misconduct -- Gutierrez agreed to work in a non-lead capacity at a 7 smaller Kaiser facility in Manteca. 8 9 Id. ¶ 28. Avila Decl., Ex. D. The agreement was based, in large In exchange for his reinstatement Id. Within the arbitration process, Gutierrez never alleged that he was terminated because of his age or for any other United States District Court For the Northern District of California 10 discriminatory reason. 11 not allege any discriminatory motives for Kaiser or Avila’s 12 actions until six months after he was fired, in March 2010, when 13 he filed a complaint with the State’s Department of Fair Employment 14 and Housing (DFEH) alleging discrimination based on age, race, and 15 national origin. 16 identified October 15, 2009, as the most recent date on which 17 Plaintiff had experienced discrimination. 18 complaint, Plaintiff had not complained about any kind of 19 discrimination at Kaiser since March 2008, when he joined co- 20 workers in filing an internal complaint against a “racist” manager 21 whom Kaiser subsequently fired. 22 Avila Decl. ¶ 34, Ex. D. Boyd Decl., Ex. C. Gutierrez did The DFEH complaint Id. Prior to that DFEH Gutierrez Decl. ¶ 4. On May 20, 2011, Gutierrez, then age fifty-two, filed a 23 complaint in state court alleging age discrimination and various 24 other claims against Kaiser and Avila, then age seventy-one. 25 26 27 28 1 Kaiser agreed to award Gutierrez $89,024 in lost compensation, $6,600 in lost benefits, and $47,083 in lost wages for “Standby/On-call” time that he would have earned had he never been terminated. Avila Decl., Ex. D. 5 1 Bogue Decl., Ex. D. 2 action to this Court and now move for summary judgment. Kaiser and Avila subsequently removed the 3 LEGAL STANDARD 4 Summary judgment is properly granted when no genuine and 5 disputed issues of material fact remain, and when, viewing the 6 evidence most favorably to the non-moving party, the movant is 7 clearly entitled to prevail as a matter of law. 8 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 9 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. United States District Court For the Northern District of California 10 11 Fed. R. Civ. P. 1987). The moving party bears the burden of showing that there is no 12 material factual dispute. 13 true the opposing party’s evidence, if supported by affidavits or 14 other evidentiary material. 15 815 F.2d at 1289. 16 in favor of the party against whom summary judgment is sought. 17 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 18 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 19 F.2d 1551, 1558 (9th Cir. 1991). 20 Therefore, the court must regard as Celotex, 477 U.S. at 324; Eisenberg, The court must draw all reasonable inferences Material facts which would preclude entry of summary judgment 21 are those which, under applicable substantive law, may affect the 22 outcome of the case. The substantive law will identify which 23 facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 24 242, 248 (1986). 25 of proof on an issue at trial, the moving party may discharge its 26 burden of production by either of two methods: 27 28 Where the moving party does not bear the burden The moving party may produce evidence negating an essential element of the nonmoving party’s 6 3 case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial. 4 Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 5 1099, 1106 (9th Cir. 2000). 1 2 If the moving party discharges its burden by showing an 7 absence of evidence to support an essential element of a claim or 8 defense, it is not required to produce evidence showing the 9 absence of a material fact on such issues, or to support its 10 United States District Court For the Northern District of California 6 motion with evidence negating the non-moving party’s claim. 11 see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990); 12 Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). 13 the moving party shows an absence of evidence to support the non- 14 moving party’s case, the burden then shifts to the non-moving 15 party to produce “specific evidence, through affidavits or 16 admissible discovery material, to show that the dispute exists.” 17 Bhan, 929 F.2d at 1409. Id.; If If the moving party discharges its burden by negating an 18 19 essential element of the non-moving party’s claim or defense, it 20 must produce affirmative evidence of such negation. 21 F.3d at 1105. 22 burden then shifts to the non-moving party to produce specific 23 evidence to show that a dispute of material fact exists. Nissan, 210 If the moving party produces such evidence, the Id. If the moving party does not meet its initial burden of 24 25 production by either method, the non-moving party is under no 26 obligation to offer any evidence in support of its opposition. 27 Id. 28 ultimate burden of persuasion at trial. This is true even though the non-moving party bears the 7 Id. at 1107. 1 DISCUSSION 2 Plaintiff asserts twelve causes of action in his complaint. 3 The following discussion addresses each of these claims 4 separately. 5 A. 6 Age Discrimination under FEHA (Plaintiff’s Twelfth Cause of Action) In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 7 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 8 248, 252-56 (1981), the Supreme Court outlined its burden-shifting 9 framework for evaluating the sufficiency of a plaintiff’s evidence 10 United States District Court For the Northern District of California in employment discrimination suits. The same burden-shifting 11 framework is used to analyze claims under FEHA. Guz v. Bechtel 12 Nat’l Inc., 24 Cal. 4th 317, 354 (2000); Bradley v. Harcourt, 13 Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996). 14 Under this framework, the plaintiff must first establish a 15 prima facie case of discrimination. This requires the plaintiff 16 to show that he or she: (1) is a member of a protected class; 17 (2) is qualified for the position he or she held or sought; 18 (3) was subject to an adverse employment decision; and (4) was 19 replaced by someone who was not a member of the protected class. 20 St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993) (citing 21 McDonnell Douglas and Burdine). Once he or she has made out a 22 prima facie case, a presumption of discriminatory intent arises. 23 Id. To rebut this presumption, the defendant must come forward 24 with a legitimate, non-discriminatory reason for the challenged 25 employment decision. Id. at 506-07. If the defendant provides 26 such a reason, the burden shifts back to the plaintiff to prove 27 that the defendant’s proffered reason is pretextual and that the 28 8 1 defendant, in fact, acted with discriminatory intent. 2 11. 3 “specific, substantial evidence of pretext.” 4 Inc., 703 F.2d 392, 393 (9th Cir. 1983). 5 the prima facie case consists of no more than the minimum 6 necessary to create a presumption of discrimination under 7 McDonnell Douglas, the plaintiff has failed to raise a triable 8 issue of fact.” 9 Cir. 1994). United States District Court For the Northern District of California 10 Id. at 510- The plaintiff can only meet this ultimate burden by producing Steckl v. Motorola, “[I]n those cases where Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Here, the Court will assume that Plaintiff has established a 11 prima facie case of age discrimination2 under FEHA. 12 shown that he was over forty years old when Kaiser terminated him, 13 was qualified to serve as Kaiser’s lead biomedical engineer, and 14 was replaced by a younger employee, Elias Flores.3 Plaintiff has Gutierrez 15 2 16 17 18 19 20 21 22 23 24 25 26 27 28 In his opposition brief, Plaintiff asserts that he was also subject to national origin discrimination under FEHA. See Opp. 19. However, Plaintiff did not plead a claim for national origin discrimination in his complaint. Although Plaintiff’s counsel submitted supplemental briefing after the hearing to show that Plaintiff pled national origin discrimination in its complaint, the supplemental brief merely highlights Plaintiff’s other claims for FEHA harassment. Thus, because Plaintiff has not formally asserted a claim for national origin discrimination, this order does not address the issue. In any event, it is unlikely that Plaintiff would be able to establish a prima facie case for national origin discrimination anyway, given that the employee who replaced him is also of Mexican ancestry. 3 Although Flores was over forty when he replaced Plaintiff -- and, thus, technically a member of the same suspect class -- the Ninth Circuit has recognized that this final element of the prima facie case “has been treated with some flexibility” in FEHA age discrimination suits. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996) (“To establish a prima facie case of age discrimination through circumstantial evidence, the plaintiff must show that he was: (1) a member of a protected class [age 40-70] . . . and (4) replaced by a substantially younger employee with equal or inferior qualifications.”). 9 1 Decl. ¶¶ 2-4, 18. 2 burden. These facts are sufficient to meet his initial 3 Defendants have also met their burden by providing a 4 legitimate, non-discriminatory business reason for terminating 5 (and later demoting) Plaintiff. 6 substantial evidence that Plaintiff neglected his duties to 7 perform required maintenance checks on hospital equipment and 8 falsified hospital records. 9 Lance ¶¶ 5-7; Plasse ¶¶ 9-13. Specifically, they offer Flores Decl. ¶¶ 7-9; Hunt ¶¶ 7-12; Their evidence highlights the fact United States District Court For the Northern District of California 10 that Plaintiff’s failure to perform his maintenance duties created 11 a potential safety hazard for Kaiser’s patients. 12 Koutoulas Decl. ¶ 11. 13 Hunt Decl. ¶ 13; Thus, to satisfy his ultimate burden, Plaintiff must provide 14 specific, substantial proof that Defendants’ justification for 15 terminating and demoting him is pretextual. 16 so here. 17 of conclusory allegations that Defendants conspired to sabotage 18 his work and “set [him] up for termination.” 19 Decl. ¶¶ 4, 13-16. 20 to the level of “specific” or “substantial” proof required to meet 21 Plaintiff’s ultimate burden of persuasion. 22 393. 23 false, there is no evidence that Kaiser’s decision-makers believed 24 them to be false. 25 his co-workers sought to oust him from his position as lead 26 biomedical engineer for purely self-interested, rather than 27 discriminatory, reasons: namely, to obtain promotions for 28 themselves. He has failed to do The thrust of Plaintiff’s pretext evidence is a series See Gutierrez Taken together, these allegations do not rise Steckl, 703 F.2d at Even if all of Plaintiff’s co-workers’ allegations were At best, Plaintiff’s allegations suggest that Id. at ¶ 18 (noting that the alleged conspirators 10 1 ultimately “achieved what they set out to do”). 2 Plaintiff’s allegations of Defendants’ supposed conspiracy even 3 mentions his age -- or Flores’ age, for that matter -- as a 4 possible motivation for targeting him. 5 evidence that Defendants’ actions were motivated by some 6 impermissible purpose, Plaintiff cannot demonstrate that 7 Defendants violated FEHA. 8 summary judgment on this claim. 9 B. 10 None of Without any specific Accordingly, Defendants are entitled to Retaliation under FEHA (Plaintiff’s First Cause of Action) United States District Court For the Northern District of California In order to establish a prima facie claim of retaliation 11 under FEHA, the plaintiff must prove that he or she engaged in 12 protected activity, that the defendant-employer subjected him or 13 her to some adverse employment action, and that there was a causal 14 link between the protected activity and the adverse action. 15 Iwekaogwu v. City of Los Angeles, 75 Cal. App. 4th 803, 814 16 (1999). In the absence of direct evidence, a causal link requires 17 showing that the defendant knew of the protected activity and that 18 the temporal proximity between the protected activity and the 19 adverse action was “very close.” Clark County School Dist. v. 20 Breeden, 532 U.S. 268, 273-74 (2001) (per curiam); Maurey v. Univ. 21 of Southern Cal., 87 F. Supp. 2d 1021, 1033 (C.D. Cal. 1999). 22 Once the plaintiff has established a prima facie case of 23 retaliation, the defendant has the burden of producing a 24 legitimate, non-retaliatory reason for the adverse action. Scotch 25 v. Art Inst. of Cal.-Orange Cnty., Inc., 173 Cal. App. 4th 986, 26 1021 (2009). If the defendant meets this burden, the plaintiff 27 28 11 1 must then provide evidence that the defendant’s proffered reason 2 was pretextual. 3 Id. Plaintiff in this case alleges that Defendants subjected him 4 to “harassment, demotion, humiliation, unfair discipline, wrongful 5 termination, conditional re-instatement, and constructive 6 discharge” because he reported violations of Defendants’ 7 collective bargaining agreement. 8 Compl. ¶ 20. 9 complaining to his supervisor about an abusive manager whom he and Gutierrez Decl. ¶ 5; He also alleges that he suffered retaliation for United States District Court For the Northern District of California 10 other engineers had “accused of racism” in 2008. 11 Decl. ¶ 4; Gutierrez Dep. 77:9-:24. 12 Gutierrez Of these two bases for Defendants’ alleged retaliation, only 13 the latter potentially falls within the scope of activity 14 protected by FEHA. 15 violations are not protected under FEHA since they do not address 16 workplace discrimination. 17 plaintiff “need not have invoked ‘magic words’ in order for his 18 complaints to constitute protected activity, he must have alerted 19 his employer to his belief that discrimination, not merely unfair 20 personnel treatment, had occurred.” 21 2005 WL 88965, at *8 (N.D. Cal.) (citations omitted); see also 22 Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1412 (9th Cir. 1987) 23 (finding that an employee’s complaints about scheduling changes 24 were not protected activity under Title VII). 25 complaints about CBA violations fail this basic test. 26 Plaintiff’s complaints about possible CBA This Court has recognized that while a Mayfield v. Sara Lee Corp., Plaintiff’s While Plaintiff’s other complaints about his manager’s racist 27 conduct do constitute protected activity, there is no evidence of 28 a causal connection between this activity and Plaintiff’s 12 1 termination. 2 time that Plaintiff complained about the manager in the spring of 3 2008 and the time he was placed on administrative leave in May 4 2009. 5 complaint and Defendants’ purported retaliation bars any inference 6 of a causal connection between the two events. 7 Electra Cent. Credit Union, 439 F.3d 1018, 1035 (9th Cir. 2006) 8 (finding that a seven-month gap between an employee’s initial 9 complaint and an allegedly retaliatory employment action was too Indeed, more than a full year elapsed between the This lengthy temporal gap between Plaintiff’s initial Cf. Cornwell v. United States District Court For the Northern District of California 10 great to support an inference of causation); Manatt v. Bank of 11 Am., NA, 339 F.3d 792, 802 (9th Cir. 2003) (“While courts may 12 infer causation based on the proximity in time between the 13 protected action and the allegedly retaliatory employment 14 decision, such an inference is not possible in this case because 15 approximately nine months lapsed between the date of [plaintiff]’s 16 complaint and the [defendant]’s alleged adverse decisions.”) 17 Even if the Court were to assume that Plaintiff had 18 established causation here -- and thus made out a prima facie case 19 of retaliation -- Plaintiff’s claim would still fail because he 20 has not shown that Defendants’ justifications for their actions 21 were a pretext for retaliation. 22 substantial evidence that Plaintiff was placed on administrative 23 leave, demoted, and terminated because he failed to perform his 24 duties and jeopardized hospital safety. 25 judgment, Plaintiff must offer some evidence that these 26 justifications are merely a smokescreen for Defendants’ underlying 27 retaliatory motive. Once again, Defendants offer To survive summary See Scotch, 173 Cal. App. 4th at 1021. 28 13 1 Plaintiff has not done so here. 2 to summary judgment on this claim. 3 C. 4 Defendants are therefore entitled Hostile Work Environment and Harassment under FEHA (Plaintiff’s Second and Third Causes of Action) “California courts have been guided in their interpretations 5 of FEHA by the federal court decisions interpreting Title VII.” 6 Etter v. Veriflo, 67 Cal. App. 4th 457, 464, (1999). Under these 7 decisions, a plaintiff may prove harassment by demonstrating that 8 an employer has created a hostile or abusive work environment. 9 Meritor Savings Bank v. Vinson, 477 U.S. 57, 65-67 (1986). This 10 United States District Court For the Northern District of California requires proof that: (1) the plaintiff was subjected to verbal or 11 physical conduct related to his or her membership in a protected 12 class; (2) the conduct was unwelcome; and (3) the conduct was 13 sufficiently severe or pervasive to alter the conditions of the 14 plaintiff’s employment and create an abusive work environment. 15 Vasquez v. County of L.A., 349 F.3d 634, 642 (9th Cir. 2003) 16 (citing Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998)). 17 Here, Plaintiff asserts separate claims for harassment and 18 hostile work environment. However, because courts typically treat 19 hostile work environment as an element of harassment -- rather 20 than as its own independent cause of action -- the Court addresses 21 Plaintiff’s harassment and hostile-work-environment claims 22 together. 23 Plaintiff first alleges that he was subject to a hostile work 24 environment because he was “unfairly criticized, harshly 25 disciplined, intimidated, overly monitored[,] not provided 26 adequate resources, ignored, and, [sic] refused the same 27 opportunities as persons similarly situated not in his protected 28 14 1 class.” 2 unlawfully harassed him through “excessive monitoring, false 3 accusations about performance and ultimate[ly] constructive 4 discharge.” 5 Compl. ¶ 29-31. He also asserts that Defendants Id. ¶ 35. Once again, Plaintiff has failed to establish that 6 Defendants’ conduct was motivated by Plaintiff’s membership in a 7 protected group. 8 declines to specify which of Defendants’ allegedly abusive 9 acts -- if any -- were motivated by race, which were motivated by In both his declaration and his complaint, he United States District Court For the Northern District of California 10 national origin, and which were motivated by age. 11 v. John Muir Med. Ctr., 2010 WL 3448567, at *11 (N.D. Cal.) 12 (awarding summary judgment to defendant because plaintiff failed 13 to “give specific examples of discriminatory comments” to flesh 14 out her blanket allegations of discriminatory conduct). 15 specific quote that Plaintiff attributes to Defendants as evidence 16 of harassment is a stray comment from a supervisor who once called 17 Plaintiff a “political guy.” 18 comments like this were frequent and pervasive enough to 19 constitute harassment, Plaintiff provides no basis for inferring 20 that they were motivated by discrimination. 21 Cf. Rodriguez Gutierrez Decl. ¶ 17. The only Even if Plaintiff himself seems to concede that he never heard any 22 discriminatory or offensive comments while working for 23 Defendants.4 His Mexican-American and Latino co-workers, 24 4 25 26 27 28 During his deposition, Plaintiff expressly stated that he never heard anyone make a racially derogatory comment during his employment at Kaiser. Gutierrez Dep. 70:10-71:8. When asked to recall the last time he heard a manager utter an age-related comment, he could recount just one incident from the “mid-‘90s” that he conceded was neither malicious nor inappropriate. Id. 42:1-44:8. 15 1 including his eventual replacement Flores, similarly assert that 2 they never experienced any discrimination or abuse at Kaiser. 3 Flores Decl. ¶ 17. 4 See Plaintiff’s failure to provide anything other than non- 5 specific allegations5 of discrimination ultimately make it 6 impossible to infer that Defendants harassed him or subjected him 7 to a hostile work environment because of his race, national 8 origin, or age. 9 judgment on Plaintiff’s harassment and hostile-work-environment United States District Court For the Northern District of California 10 claims. 11 D. Accordingly, Defendants are entitled to summary 12 Retaliation under Section 1102.5 of the Labor Code (Plaintiff’s Sixth Cause of Action) Under section 1102.5 of the Labor Code, an “employer may not 13 retaliate against an employee for disclosing information to a 14 government or law enforcement agency, where the employee has 15 reasonable cause to believe that the information discloses a 16 violation of state or federal statute, or a violation or 17 noncompliance with a state or federal rule or regulation.” Cal. 18 Lab. Code § 1102.5(b). 19 To survive summary judgment on a section 1102.5(b) claim, a 20 plaintiff must first establish a prima facie case of retaliation, 21 which requires him or her to “show (1) she engaged in a protected 22 23 5 24 25 26 27 28 Many of Plaintiff’s allegations do not even state a valid claim for FEHA harassment because they focus on Defendants’ formal personnel decisions -- such as performance evaluations or disciplinary actions -- rather than Defendants’ unofficial conduct. See generally Reno v. Baird, 18 Cal. 4th 640, 646 (1998) (“Making a personnel decision is conduct of a type fundamentally different from the type of conduct that constitutes [FEHA] harassment. Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance.”). 16 1 activity, (2) her employer subjected her to an adverse employment 2 action, and (3) there is a causal link between the two.” 3 v. Grant Joint Union High Sch. Dist., 134 Cal. App. 4th 1378, 1384 4 (2005). 5 shifts to the defendant to “provide a legitimate, nonretaliatory 6 explanation for its acts.” 7 burden, the plaintiff must “show this explanation is merely a 8 pretext for the retaliation.” Patten If a plaintiff establishes a prima facie case, the burden Id. If the defendant meets this Id. Plaintiff’s § 1102.5 claim in this case is based on his 10 United States District Court For the Northern District of California 9 allegation that Defendants retaliated against him for “complaining 11 about discrimination and unfair and [un]equal employment 12 treatment.” 13 the only discrimination complaints he filed with a government 14 agency were those he submitted to DFEH in 2010.6 15 137:1-:14. 16 five months after Plaintiff was terminated, Plaintiff cannot 17 establish a causal link between his DFEH complaints and his 18 termination. 19 for retaliation and his section 1102.5 claim must fail. 20 Defendants are therefore entitled to summary judgment on this 21 claim. 22 E. 23 24 25 26 27 28 Compl. ¶ 66. Significantly, Plaintiff concedes that Gutierrez Dep. Since these DFEH complaints were submitted more than Thus, Plaintiff cannot make out a prima facie case Wrongful Termination under the CBA and Breach of the Implied Covenant of Good Faith and Fair Dealing (Plaintiff’s Eighth and Eleventh Causes of Action) Plaintiff alleges that he was wrongfully terminated without cause and without the “benefit of progressive discipline” as 6 Plaintiff union. However, complaints would coverage because also claims to have filed complaints with his any retaliation he suffered for making those fall outside the scope of section 1102.5(b)’s Plaintiff’s union is not a government agency. 17 1 guaranteed by the CBA. 2 Defendants breached the implied covenant of good faith and fair 3 dealing by subjecting him to harassment and discrimination. 4 ¶¶ 94-96. 5 evidence to support these allegations, these claims are preempted 6 by the Labor Management Relations Act (LMRA). 7 Compl. ¶¶ 80-82. He also claims that Id. Even assuming that Plaintiff has provided sufficient The Supreme Court has recognized that, where there is a 8 collective bargaining agreement between an employer and a union, 9 state law claims requiring interpretation of that agreement are United States District Court For the Northern District of California 10 preempted by the exclusive federal jurisdiction of the LMRA. 11 Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985). 12 Following this rule, the Ninth Circuit has held that “section 301 13 [of the LMRA] preempts the California state cause of action for 14 breach of the implied covenant of good faith and fair dealing when 15 an employee enjoys . . . job security under a collective 16 bargaining agreement.” 17 1401, 1411 (9th Cir. 1992). 18 termination claims to be similarly preempted. 19 v. Anheuser Busch, Inc., 876 F.2d 620, 624 (8th Cir. 1989) 20 (“Discharge for just cause is a subject governed by the collective 21 bargaining agreement. 22 the collective bargaining agreement and is preempted by section 23 301.”). 24 Milne Emp. Ass’n v. Sun Carriers, 960 F.2d Other circuits have found wrongful See, e.g., Johnson This count is inextricably intertwined with Relying on these principles, this Court specifically held 25 that Plaintiff’s wrongful termination and implied covenant claims 26 in this suit were preempted by the LMRA. 27 Plaintiff’s Motion to Remand Case to State Court, Docket No. 20 28 (Sept. 27, 2011). See Order Denying Without repeating its analysis here, the Court 18 1 adheres to its earlier reasoning and concludes that Defendants are 2 entitled to summary judgment on these claims. 3 F. 4 5 Discrimination in Violation of California Public Policy and Article I, Section 8, of the State Constitution (Plaintiff’s Fifth, Seventh, and Ninth Causes of Action) Under California law, an employee may maintain a tort cause 6 of action against his or her employer where the employer’s 7 discharge of the employee contravenes fundamental public policy. 8 Foley v. Interactive Data Corp., 47 Cal. 3d 654, 666 (1988). 9 claims are often referred to as Tameny claims, after the decision Such United States District Court For the Northern District of California 10 in Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167, 176-177 11 (1980). 12 constitutional or statutory provision. 13 Cal. 4th 1083, 1095 (1992). 14 commonly cited in this context to establish California’s public 15 policy of nondiscrimination is article I, section 8, of the State 16 Constitution, which guarantees that no person may “be disqualified 17 from entering or pursuing a business, profession, vocation, or 18 employment because of sex, race, creed, color, or national or 19 ethnic origin.” 20 These claims must be based on a policy established by a Gantt v. Sentry Ins., 1 The constitutional provision most Cal. Const. art. I, § 8. Here, Plaintiff asserts three separate but related causes of 21 action that arise under this provision. 22 Defendants’ discriminatory conduct towards him on the basis of age 23 and race directly violated his rights under this clause. 24 ¶ 87. 25 constructively discharged him in violation of the long-standing 26 public policy against discrimination that this clause represents. First, he alleges that Compl. Second, he asserts a Tameny claim alleging that Defendants 27 28 19 1 Compl. ¶¶ 72-74. 2 terminated him in violation the same broad policy.7 3 Finally, he asserts that Defendants wrongfully Plaintiff cannot support any of these claims for the same 4 reasons that he cannot support any of his FEHA claims: he has not 5 provided evidence that Defendants’ conduct was motivated by his 6 race or his age. 7 not support an inference that Defendants’ decision to terminate 8 him was motivated by anything other than his own failure to 9 perform his job duties adequately. As explained above, Plaintiffs’ evidence does Defendants are therefore United States District Court For the Northern District of California 10 entitled to summary judgment on Plaintiff’s constitutional claim, 11 constructive discharge claim, and wrongful termination claim 12 arising under article I, section 8. 13 G. 14 Intentional Infliction of Emotional Distress (Plaintiff’s Tenth Cause of Action) The elements of a claim for intentional infliction of 15 emotional distress (IIED) are (1) extreme and outrageous conduct 16 (2) intended to cause or done in reckless disregard for causing 17 (3) severe emotional distress; and (4) actual and proximate 18 causation. Cervantez v. J.C. Penney Co., Inc., 24 Cal. 3d 579, 593 (1979). The defendant’s conduct must be so extreme as to 19 20 “exceed all bounds of that usually tolerated in a civilized 21 community,” id., and the plaintiff’s distress so severe “that no 22 reasonable [person] in a civilized society should be expected to 23 endure it.” Fletcher v. Western Nat’l Life Ins. Co., 10 Cal. App. 24 3d 376, 397 (1970). 25 26 27 28 7 In addition to article I, § 8, Plaintiff points to FEHA as source of California’s non-discrimination policy. Compl. ¶¶ 51-51. 20 1 Here, Plaintiff asserts that Defendants’ conduct towards him 2 was an “extreme and outrageous abuse of authority” and was 3 “intended to humiliate” him and force him to quit his job. 4 ¶ 91. 5 distress” as a result. 6 Compl. He further alleges that he suffered “extreme emotional Id. ¶ 92. As discussed above, Plaintiff fails to point to evidence that 7 Defendants unlawfully harassed, discriminated, or retaliated 8 against him. 9 claim to fail, as well, because that claim is premised on the same These same evidentiary deficiencies cause his IIED United States District Court For the Northern District of California 10 conduct.8 11 discrimination and harassment, the plaintiff’s failure to provide 12 evidence supporting those underlying allegations will typically 13 doom his or her IIED claim. 14 Supp. 2d 1011, 1022 (N.D. Cal. 2010) (awarding summary judgment to 15 the defendant on plaintiff’s IIED claims because the plaintiff 16 failed to provide sufficient evidence to support FEHA claims of 17 harassment, discrimination, and retaliation arising from the same 18 non-outrageous conduct). 19 alleged sufficient facts to show that Defendants’ conduct was so 20 outrageous as to justify IIED liability here. 21 Defendants are entitled to summary judgment on this claim. When a plaintiff bases an IIED claim on allegations of See Lee v. Eden Med. Ctr., 690 F. Plaintiff has not presented or even Accordingly, 22 23 24 25 26 27 28 8 Defendants argue that Plaintiff’s IIED claim is precluded by the provisions of California’s workers’ compensation statute, Cal. Lab. Code §§ 3200, 3602, that make workers’ compensation claims the exclusive remedy for certain tort actions against an employer. Because Plaintiff’s IIED claim fails anyway here, there is no need to address Defendants’ workers’ compensation argument. 21 H. 1 2 Unfair Business Practices under the Business & Professions Code (Plaintiff’s Fourth Cause of Action) California’s Unfair Competition Law (UCL) prohibits any “unlawful, unfair or fraudulent business act or practice.” 4 Bus. & Prof. Code § 17200. 5 and employment-related laws and treats violations of those laws as 6 unlawful business practices independently actionable under state 7 law. 8 (9th Cir. 2000). 9 law may serve as the basis for a UCL claim. Saunders v. Superior 10 United States District Court For the Northern District of California 3 Court, 27 Cal. App. 4th 832, 838–39 (1994). In addition, a 11 business practice may be “unfair or fraudulent in violation of the 12 UCL even if the practice does not violate any law.” 13 Scripps Health, 30 Cal. 4th 798, 827 (2003). 14 bring a UCL claim, plaintiffs must show that they “suffered an 15 injury in fact” and “lost money or property as a result of the 16 unfair competition.” 17 of section 17204 is to “eliminate standing for those who have not 18 engaged in any business dealings with would-be defendants.” 19 Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 317 (2011). 20 In this case, Plaintiff alleges that Defendants’ actions 21 violate the UCL because they are “unfair, unlawful, harmful to the 22 Plaintiff[,] other former and present employees, and the general 23 public.” 24 entirely on the other state law violations Plaintiff alleges in 25 this lawsuit. 26 on all of Plaintiff’s other claims, they are also entitled to 27 summary judgment on Defendants’ UCL claim. 28 provided sufficient evidence to support an independent claim under Cal. The UCL incorporates other business Chabner v. United Omaha Life Ins. Co., 225 F.3d 1042, 1048 Violation of almost any federal, state, or local Olszewski v. To have standing to Cal. Bus. & Prof. Code § 17204. Compl. ¶¶ 45-46. The purpose This claim appears to be based Because Defendants are entitled to summary judgment 22 Even if Plaintiff had 1 the UCL, he could not likely establish an “injury in fact” because 2 he has already obtained the only remedy he seeks under the 3 UCL -- namely, back pay -- through the union grievance process. 4 See Avila ¶¶ 28-30. 5 6 CONCLUSION For the reasons set forth above, Defendants’ motion for 7 summary judgment (Docket No. 47) is GRANTED. 8 filed motion for leave to exceed the page limits during briefing 9 (Docket No. 63) is GRANTED. Plaintiff’s late- Defendants’ motion to strike United States District Court For the Northern District of California 10 Plaintiff’s request for administrative relief (Docket No. 67) is 11 DENIED as moot. 12 overruled as moot. 13 All of Defendants’ evidentiary objections are IT IS SO ORDERED. 14 15 16 Dated: 10/30/2012 CLAUDIA WILKEN United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 23
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