Imeson v. Eagle View Technologies, Inc., No. 2:2013cv00468 - Document 43 (W.D. Wash. 2014)
Court Description: ORDER granting in part and denying in part 19 Defendant's Motion for Summary Judgment by Judge Marsha J. Pechman.(MD)
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Imeson v. Eagle View Technologies, Inc. Doc. 43 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 CINDY IMESON, 11 12 13 14 CASE NO. C13-468 MJP Plaintiff, ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT v. EAGLE VIEW TECHNOLOGIES, INC., Defendant. 15 16 This matter is before the Court on Defendant s motion for summary judgment. (Dkt. No. 17 19.) The Court considered the motion, Plaintiff s response (Dkt. No. 23), Defendant s reply (Dkt. 18 No. 36), and all relevant documents. Embedded in Defendant s reply is an evidentiary objection 19 and motion to strike. (Dkt. No. 36 at 12.) The Court GRANTS Defendant s motion to strike and 20 Defendant s motion for summary judgment as to Plaintiff s claim for Intentional Infliction of 21 Emotional Distress. The Court DENIES the motion for summary judgment as to all other claims. 22 23 Background Plaintiff Cindy Imeson began her employment with Defendant Eagle View Technologies, 24 Inc. (“Eagle View”) on September 22, 2010. (Dkt. No. 1 at 3.) Imeson began with Eagle View as ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com 1 an Inside Sales Account Manager in the corporate office. In December of 2011, Imeson was 2 promoted to Inside Sales Senior Account Manager with an increase in her base salary. (Id.) 3 Around the same time, Patrik Parsons became an Inside Sales Manager, serving in a supervisory 4 role to Imeson. (Id. at 4.) 5 On April 14, 2012, Imeson was rushed to the emergency room because of medical 6 problems that turned into a severe infection. (Dkt. No. 1 at 4.) On April 16, Imeson informed 7 Heidi Ellsworth, Vice President of Sales and Marketing at Eagle View, of her medical problems. 8 (Id.) Ellsworth expressed concern and asked Imeson to keep her informed. (Id.) Imeson also 9 notified Parsons. (Id.) Later in April, Plaintiff was informed by Human Resources Director Dana 10 Donaly that she had used all her paid time off and would need to take Family Medical Leave 11 (“FMLA”). (Id.) 12 Plaintiff returned to work part-time beginning May 9, 2012. (Dkt. No. 1 at 5.) The 13 following week she increased her time and eventually returned to a full time schedule. (Id.) 14 While Plaintiff was on FMLA leave her largest account, Solar City, was taken from her. (Dkt. 15 No. 1 at 5.) Defendant contends the decision to remove the Solar City account was made before 16 Imeson took FMLA leave due to Imeson s previously expressed stress levels, but does not 17 dispute this planned removal was not discussed with Imeson prior to her FMLA leave. (Dkt. No. 18 19 at 10.) After a meeting set up by Ellsworth with Imeson and Parsons to discuss Imeson s 19 concerns regarding the removal of the Solar City account, the account was returned to Imeson. 20 (Dkt. No. 1 at 5.) During the meeting, Imeson states she was made to discuss her medical 21 problems in front of Parsons. (Id.) 22 Ellsworth testified Imeson s sales numbers began “downtrending” in the fall of 2011, 23 before she took FMLA leave. (Dkt. No. 22 at 91.) Ellsworth stated she spoke to Imeson about the 24 ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT- 2 1 downtrending, but did not recall documenting any conversations. (Id. at 92.) Ellsworth also 2 stated Imeson s accounts were not lower or further behind than the accounts of other employees. 3 (Id. at 93.) Parsons also testified he had a conversation with Imeson about downtrending 4 accounts, but likewise did not document a meeting. (Id. at 136.) Parsons also stated there were 5 ongoing concerns related to Imeson undermining him as a manager, but due to the “close-knit” 6 nature of the group, all communication was verbal. (Id. at 138.) Parsons does point to an E-Mail 7 from Ellsworth intended to document a July 26, 2012 verbal meeting with Imeson in which a 8 verbal warning was given. (Id. at 168.) 9 Imeson asserts her performance level was high before and following her leave, and states 10 she was specifically praised for outstanding performance during a performance as late as August 11 2012. (Dkt. No. 1 at 6.) For example, Imeson notes she was asked to travel to San Francisco to 12 the headquarters of Solar City in April of 2012 to meet with representatives to discuss increasing 13 the scope of the partnership between the two companies, as a result of her performance. (Id.) In 14 both March and April of 2012 Imeson was formally recognized for outstanding sales numbers 15 and exceeding sales goals. (Id.) 16 From September 3-7 of 2012, Imeson took vacation which was approved in advance by 17 Parsons. (Dkt. No. 33 at 6.) On September 24 and 25 of 2012, Imeson was ill and unable to go 18 into work. (Id.) On September 24, 2012, Parsons sent an email to Donaly and Ellsworth asking to 19 speak to them about putting Imeson on probation for attendance. (Dkt. No. 35-4 at 2.) Donaly E20 Mailed Parsons on September 25, 2012, putting together an overview of Imeson s absences for 21 the year. (Dkt. No. 35-6 at 2.) The E-Mail stated, “If the average person takes 3 weeks off per 22 year, she is currently at 5.60 weeks. Even though her FMLA was approved, her absences are still 23 „excessive when viewed with the average.” (Id.) Donaly followed up with an E-Mail later that 24 ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT- 3 1 day, stating “One more thing: we can t count her FMLA days for excessive absenteeism… only 2 the 7 days that she called out. When thinking about her non-FMLA sick days, is 7 days 3 considered excessive when compared to others on your team? It seems excessive when looked at 4 across the company but I want to make sure it is viewed that way per your specific team.” (Id.) 5 Imeson alleges during the months following her FMLA leave Parsons “gave her a hard 6 time” about taking leave. (Dkt. No. 1 at 6.) On September 26, 2012, Imeson brought in a doctor s 7 note for two days missed for illness earlier that month. (Id.) Imeson alleges Donaly told her a 8 doctor s note was unnecessary, but Imeson told Donaly she brought the note because Parsons 9 continued to comment on her absences, including stating in front of other team members that 10 Imeson was “the sickest person [he] has ever known.” (Id.) The same day, Imeson says Parsons 11 told her the two of them and Donaly were going to have a one-on-one meeting before the end of 12 the week. (Dkt. No. 33 at 7.) 13 On September 28, 2012, Imeson spoke to Donaly about her concerns related to Parsons. 14 (Dkt. No. 33 at 8.) She complained Parsons treated her negatively following her leave, and 15 expressed concerns about Parsons referring to female employees as cunts and yelling at them. 16 (Id.) Later that day, Imeson was informed she would not be meeting with Parsons at the 17 previously scheduled time because he took the day off. (Id.) Imeson E-Mailed Parsons 18 expressing her frustration about the meeting cancellation. (Id. at 9.) 19 On October 1, 2012, Parsons approached Imeson and asked if she had a few minutes, 20 taking her to meet in Donaly s office. (Dkt. No. 33 at 9.) Imeson was given a Performance 21 Improvement Plan (“PIP”). (Dkt. No. 30 at 7.) Imeson asserts she glanced at the document but 22 did not read it completely. (Id.) At the bottom of each page of the PIP, the words “Proprietary 23 and Confidential” appear. (Dkt. No. 20 at 12-14.) Imeson expressed to Parsons and Donaly she 24 ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT- 4 1 had a hard time respecting Parsons as a manager because he referred to women as cunts. (Dkt. 2 No. 30 at 7.) Parsons first denied the allegation but eventually admitted he did use that language. 3 (Id.) Imeson states at the meeting Parsons produced a calendar to show Imeson s missed days, 4 which included days she alleges she did not miss. (Id.) According to Imeson, there was no policy 5 at Eagle View about missing days and there was no set number of paid time off (“PTO”) days. 6 Imeson alleges one-on-one meetings had never been confidential in the past, and after the 7 PIP meeting she showed a co-worker a note saying she believed Parsons was trying to get her 8 fired within four weeks. (Dkt. No. 30 at 8.) The same day, Imeson says another co-worker asked 9 her how the one-on-one meeting went, and Imeson stated Parsons denied his use of derogatory 10 language towards women until pressed, and that she believed Parsons would try to get her fired 11 within four weeks. (Id.) On October 3, 2012, Parsons E-Mailed Donaly informing her he was 12 approached by Imeson s co-workers and was told Imeson said she was getting fired in four 13 weeks. (Dkt. No. 20 at 18.) Donaly responded stating they had told Imeson this was “a 100% 14 private matter.” (Id.) On October 5, 2012, Imeson was given a notice of immediate termination 15 citing “insubordination” and referencing her discussion of the PIP with her co-workers. (Id. at 16 20.) 17 Imeson now brings claims for interference with FMLA rights, discrimination for 18 requesting FMLA rights, retaliation under the Washington Law Against Discrimination 19 (“WLAD”), and Intentional Infliction of Emotional Distress (“IIED”). (Dkt. No. 1 at 7-8.) 20 Defendant moves for summary judgment on all claims. (Dkt. No. 19.) 21 22 23 24 ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT- 5 1 Discussion/Analysis 2 I. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Standard for Summary Judgment Summary judgment is warranted if no material issue of fact exists for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). The underlying facts are viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment will not lie if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment has the burden to show initially the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1970). If the moving party makes this showing, the burden shifts to the nonmoving party to establish the existence of an issue of fact regarding an element essential to that party s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). “A plaintiff alleging employment discrimination need produce very little evidence in order to overcome an employer's motion for summary judgment. This is because the ultimate question is one that can only be resolved through a searching inquiry - one that is most appropriately conducted by a factfinder, upon a full record.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2000)(internal citations omitted). II. Family Medical Leave Act Claims The Family Medical Leave Act, 29 U.S.C. §2615(a), created two interrelated, substantive rights: (1) the employee has a right to use certain amounts of leave for protected reasons, and (2) the employee has a right to return to his or her job or an equivalent after using protected leave. Sanders v. City of Newport, 657 F.3d 772, 777 (9th Cir. 2011). The FMLA places an affirmative 24 ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT- 6 1 burden on an employer to notify employees of their rights under the Act. Bushfield v. Donahoe, 2 912 F. Supp. 2d 944, 952 (D. Idaho 2012). Section 2615(a)(2) makes it unlawful for employers 3 to retaliate or discriminate against a person for opposing any violation of their FMLA right to 4 leave. Section 2615(a)(1) makes it unlawful for an employer to “interfere with, restrain or deny” 5 the exercise or attempt to exercise FMLA leave. 6 A. 7 “Under §2615(a)(2), it is „unlawful for any employer to discharge or in any other manner Retaliation Claim 8 discriminate against any individual for opposing any practice made unlawful by this subchapter.” 9 Sanders, 657 F.3d at 777. An allegation under this section is a retaliation or discrimination 10 claim. Id. In Bachelder v. Am. W. Airlines, Inc., the Ninth Circuit expressly did not decide 11 whether the burden shifting framework articulated in McDonnell Douglas v. Green, 411 U.S. 12 792 (1973), should be applied to retaliation claims under §2615(a)(2). 259 F.3d 1112, 1125, n. 13 11 (9th Cir. 2001). The Ninth Circuit acknowledges, however, most other circuits have adopted 14 some version of the McDonnell Douglas burden shifting framework. Sanders, 657 F.3d at 777. 15 District Courts in the Ninth Circuit have used the McDonnell Douglas framework in the analysis 16 of §2615(a)(2) claims. See, Bushfield, 912 F. Supp. 2d at 953. 17 Under the McDonnell Douglas framework, a plaintiff must establish a prima facie case of 18 retaliation. Id. To establish a prima facie case of FMLA retaliation, a plaintiff must show (1) he 19 availed himself of a protected activity under the FMLA, (2) he was adversely affected by an 20 employment decision, and (3) there is a causal connection between the two actions. Washington 21 v. Fort James Operating Co., 110 F. Supp. 2d 1325, 1331 (D. Or. 2000). If a prima facie case is 22 established, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason 23 for the adverse action. Sanders, 657 F.3d at 777, n.3. If the employer articulates a legitimate 24 ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT- 7 1 reason for its action, the burden shifts back to the plaintiff to show the reason given is pretext. Id. 2 Pretext can be proven indirectly, by showing the employer s explanation is not credible because 3 it is internally inconsistent or otherwise not believable, or directly, by showing unlawful 4 discrimination more likely motivated the employer. Id. 5 Issues of material fact preclude summary judgment on this claim. Imeson successfully 6 makes a prima facie case of FMLA retaliation: she complained to management that her job 7 duties were altered because she took FMLA leave, and that she experienced harassment from 8 Parsons related to her FMLA leave. (Dkt. No. 33 at 20.) Imeson was later terminated from her 9 position, and claims the motive for her termination was retaliation for her complaints. (Id.) 10 Defendant articulates a legitimate reason for Imeson s termination: her breach of the PIP 11 confidentiality. (Dkt. No. 19 at 25.) Because Defendant articulates a legitimate reason for the 12 adverse action, Plaintiff must directly or indirectly show the given reason is pretext. (Id.) 13 Imeson puts forth indirect evidence of pretext substantial enough to preclude summary 14 judgment. While breach of confidentiality of the PIP is cited as a primary reason for Imeson s 15 termination, Parsons testified Imeson did not actually reveal anything told to her in confidence at 16 the PIP meeting. (Dkt. No. 35-1 at 27.) The conflicting accounts of Imeson s performance at 17 work in 2012 also create a material issue of fact. For example, Imeson s receipt of the “500k 18 club” award for exceeding sales goals in April 2012 (Dkt. No. 19 at 8) conflicts with the notion 19 Defendant was concerned about Imeson s performance as early as the beginning of 2012. (Id. at 20 12.) The evidence before the Court requires determinations of credibility, which are not 21 appropriate at the summary judgment stage. For this reason, summary judgment is DENIED. 22 23 24 ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT- 8 1 B. Interference Claim 2 An interference claim is based on §2615(a)(1) which states, “[i]t shall be unlawful for 3 any employer to interfere with, restrain, or deny the exercise or the attempt to exercise” the 4 substantive rights guaranteed by FMLA. 29 U.S.C. §2615(a)(1). When an employee alleges she 5 was fired for taking FMLA leave, the claim is properly analyzed under the interference prong of 6 the FMLA statute. Xin Liu v. Amway Corp., 347 F.3d 1125, 1132 (9th Cir. 2003). The Ninth 7 Circuit does not apply the burden shifting framework of McDonnell Douglas Corp. v. Green to 8 interference claims. Denison v. Kaiser Found. Health Plan of the Northwest, 868 F. Supp. 2d 9 1065, 1080 (D. Or. 2012). To make an interference claim based on termination, a plaintiff must 10 show “by a preponderance of the evidence that her taking of FMLA-protected leave constituted a 11 negative factor in the decision to terminate her. She can prove this claim . . . by using either 12 direct or circumstantial evidence.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124 (9th 13 Cir. 2001). 14 There are material issues of fact precluding summary judgment in favor of Defendant on 15 this claim. The Parties do not dispute that Imeson s FMLA was properly taken; the Parties do 16 dispute whether the FMLA leave was a negative factor in her termination or alteration of her 17 employment responsibilities. Defendant argues the record establishes Imeson s FMLA leave was 18 not a factor in the PIP or notice of termination, and notes the FMLA leave was not mentioned in 19 either document. (Dkt. No. 19 at 21.) Defendant also argues the fact Imeson was terminated four 20 and a half months after returning from FMLA leave shows a lack of connection between the 21 leave and termination. (Id.) Defendant further contends the Solar City account was not removed 22 due to the FMLA leave because Defendant intended to remove the account before the leave was 23 taken. (Id.) Although Persons testified the Solar City account was going to be taken from Imeson 24 ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT- 9 1 before she went on FMLA, there is no documentation to show this was the case. There is an E2 Mail from Parsons to Donaly sent on Friday, April 13, 2012, the day before Imeson went to the 3 emergency room, stating due to Imeson s stress level he intended to remove leadership 4 responsibilities and new customers, but the E-Mail does not mention removal of existing 5 accounts. (Dkt. No. 21 at 9.). The documentation related to ongoing discussions of Imeson s leave and Imeson s 6 7 concerns about Parsons treatment of her absences in the time between her return from FMLA 8 leave and her termination create issues of fact regarding the motive for her termination and 9 produce sufficient temporal proximity between the leave and termination. Defendant cites Swan 10 v. Bank of America for the proposition that four months between FMLA leave and termination 11 makes the leave too remote to establish causation. (Dkt. No. 19 at 21.) In Swan, however, the 12 Ninth Circuit found such a gap problematic when temporal proximity was the only connection 13 offered between the leave and the termination. 360 Fed. Appx. 903, 906 (9th Cir. 2009). Here, 14 temporal proximity is not the sole connection; Imeson offers evidence that her FMLA leave was 15 discussed and was considered an issue when she returned, such as the E-Mails from Parsons 16 regarding her absences and Parsons comments to her about her illness. (Dkt. Nos. 35-6 at 2, and 17 35 at 4.) Whether or not the disputed facts and circumstantial evidence amount to a successful 18 FMLA interference claim is best left to the finder of fact, and summary judgment is DENIED. 19 20 III. Retaliation under WLAD The WLAD prohibits employers from taking adverse employment actions against an 21 employee based on protected conduct. Hines v. Todd Pac. Shipyards Corp., 127 Wn. App. 356, 22 374 (2005). “To establish a prima facie case of retaliation, plaintiff must demonstrate that (1) she 23 engaged in statutorily protected activity; (2) defendants took some adverse employment action 24 against her; and (3) there is a causal connection between the protected activity and the ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT10 1 discharge.” Macon v. UPS, U.S. Dist. LEXIS 159202, *16-17 (W.D. Wash. Nov. 5, 2012). 2 Under WLAD, it is “an unfair practice for any employer . . . to discharge . . . or otherwise 3 discriminate against any person because he or she has opposed any practices forbidden” by the 4 WLAD. RCW 49.60.210. The conduct complained of by the plaintiff need not actually be 5 unlawful, so long as she reasonably believed the opposed practices to be unlawful. Renz v. 6 Spokane Eye Clinic, P.S. 114 Wn. App. 611, 619 (2002). The McDonnell Douglas burden 7 shifting framework, discussed above, applies to claims under WLAD. Id. at 618-19. Imeson s WLAD claim survives for the same reason the FMLA retaliation claim 8 9 survives. Imeson alleges she complained to Defendant about Parsons treatment of women and 10 his comments related to her FMLA absences. (Dkt. No. 33 at 21.) Imeson was fired, which is the 11 “ultimate adverse employment action.” Renz, 114 Wn. App. at 621. The disputed facts and 12 credibility issues surrounding the causal connection between the protected behavior and the 13 termination which precluded summary judgment on the FMLA claims also preclude summary 14 judgment here, and summary judgment on this claim is DENIED. 15 16 IV. Intentional Infliction of Emotional Distress An Intentional Infliction of Emotional Distress (“IIED”) claim in Washington requires 17 (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, 18 and (3) the actual result to the plaintiff of severe emotional distress. Kloepfel v. Bokor, 149 19 Wn.2d 192, 195-96 (2003). The conduct must be “so outrageous in character, and so extreme in 20 degree, as to go beyond all possible bounds of decency, and tend to be regarded as atrocious, and 21 utterly intolerable in civilized society.” Id. at 196. Although the elements of IIED are generally 22 factual questions for the jury, “a trial court faced with a summary judgment motion must first 23 determine whether reasonable minds could differ on whether the conduct was sufficiently 24 extreme to result in liability.” Strong v. Terrell, 147 Wn. App. 376, 385 (2008). ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT11 1 Summary judgment is appropriate on this claim because the conduct alleged is not 2 sufficiently extreme to amount to the tort of IIED. The allegations made by Imeson, including 3 her termination, the alleged improper removal of the Solar City account, and the alleged 4 inappropriate comments by Parsons do not rise to the level of IIED. The fact of discharge itself, 5 on its own, is not sufficient to support an IIED claim. Dicomes v. State, 113 Wn.2d 612, 630 6 (1989). The manner in which a discharge is accomplished may support an IIED claim, but here 7 Imeson was discharged with a letter, in a manner not alleged to be particularly outrageous. (Dkt. 8 No. 33 at 11.) Although Parsons use of the word cunt in the business context is boorish and 9 misogynistic, it does not rise to the level of an IIED claim, particularly where it is unclear the 10 comments were directed at Imeson. Even if all of Plaintiff s allegations were taken as true, they 11 do not amount to an IIED claim and summary judgment is GRANTED in favor of Defendant on 12 the allegation of IIED. 13 14 V. Motion to Strike Defendant moves to strike the statement in Plaintiff s declaration at paragraph 11 which 15 states, “While I was out on leave, Shannon Decker told me that Mr. Parsons was saying that I 16 was not coming back and he was implying to the team that perhaps I was not really sick.” (Dkt. 17 No. 34 at 3.) Defendant argues this statement is hearsay and offered to prove the truth of the 18 matter asserted. (Dkt. No. 36 at 16.) Defendant argues the statement does not fall into the scope 19 of Federal Rule of Evidence 801(d)(2)(D), which states “[a] statement is not hearsay if [t]he 20 statement is offered against the party and is a statement by the party s agent or servant 21 concerning a matter within the scope of the agency or employment, made during the existence of 22 the relationship” because according to Defendant, Ms. Decker has no human resources related 23 responsibilities. (Id. at 16.) 24 ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT12 1 The Court GRANTS the motion to strike. This statement creates two layers of alleged 2 hearsay: (1) Imeson recounting what Decker said; and (2) Decker recounting what Parsons said. 3 However, the statement is not being offered to prove the truth of what Parsons said; instead it is 4 being offered, at most, to prove the fact that he said it. Therefore, the second layer (Decker s 5 restatement of Parsons alleged words) is not hearsay. 6 Imeson appears to be offering Decker s statements to prove Parsons made comments 7 about her while she was on FMLA leave, and therefore restates them to prove the truth of the 8 matter asserted, in which case the statement is impermissible hearsay. The Court GRANTS 9 Defendant s motion and STRIKES the statement for the purposes of summary judgment. 10 However, the Court notes the statement is not stricken in general and may be admissible at trail if 11 warranted by the circumstances and if a proper foundation is laid. 12 13 Conclusion Issues of material fact and the need for credibility determinations preclude summary 14 judgment on all claims except the claim of IIED. Plaintiff fails to allege facts necessary to 15 support an IIED claim. Defendant s motion for summary judgment is DENIED, except it is 16 GRANTED as to Plaintiff s claim of IIED. Defendant s evidentiary motion to strike is 17 GRANTED for the purposes of summary judgment. 18 19 The clerk is ordered to provide copies of this order to all counsel. 20 Dated this 14th day of March, 2014. A 21 22 Marsha J. Pechman Chief United States District Judge 23 24 ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT13
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