Opinion
ORDER GRANTING DEFENDANT EXIDE TECHNOLOGIES' MOTION FOR SUMMARY JUDGMENT AND DISMISSING DEFENDANT ROBERT GAULT [Docket No. 38]
S. JAMES OTERO, District Judge.
This matter before the Court is Defendant Exide Technologies, Inc.'s Motion for Summary Judgment ("Motion") filed on October 25, 2010. Plaintiff Modesto Granillo ("Plaintiff" or "Granillo") filed an Opposition, to which Exide replied. The Court found this matter suitable for disposition without oral argument and vacated the hearing set for November 22, 2010. See Fed.R.Civ.P. 78(b). For the following reasons, Defendant's Motion is GRANTED.
Defendant Exide Technologies, Inc. ("Exide" or "Defendant") and Defendant Robert Gault ("Gault") are the named Defendants in Plaintiff's Complaint. ( See generally Compl.) In the body of Exide's Motion for Summary Judgment, Exide requests that the Complaint be dismissed as to Gault, asserting that Gault was never served with the Complaint. (Def.'s Mot. 1:17-18.) On the Court's own motion, Gault is dismissed pursuant to Federal Rules of Civil Procedure, Rule 41(a)(2). Fed.R.Civ.P. 41 (a) (2).
I. BACKGROUND
Plaintiff was employed by Exide from approximately 1974 to December 20, 2007. (Compl. ¶¶ 6, 10; Decl. of Pl. in Supp. of Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Decl.") ¶ 2.) Exide manufactures new batteries and recycles old batteries by taking the "lead in [old] batteries, processing the acid, and basically reclaiming everything that is in the batteries." (Dep. of Carlos Peña on September 29, 2010 ("Peña's Dep.") 14:9, 14-16; Dep. of Pl. Modesto Granillo on October 12, 2010 ("Pl.'s Dep.") 14:20-24.) Plaintiff worked at Exide's Los Angeles facility located in Vernon, California (the "Vernon Facility" or the "Plant"). (Compl. ¶ 2.) Plaintiff was 55-years-old and allegedly suffered from physical disabilities when he was terminated from Exide. (Compl. ¶¶ 6, 8; Pl.'s Dep. 7:1-2.)
A. Exide's Working Conditions and Plaintiff's Request for Accommodation
Plaintiff was "employed as a supervisor in the RMPS Department ('Raw Materials Processing Plant'), " such that he would be "exposed to contaminants and other materials, such as lead, which would be released from batteries being recycled." (Pl.'s Decl. ¶¶ 3, 4.) Plaintiff states that this "exposure to lead and other contaminants... caused him to become fatigued, unable to concentrate, [and also] cause[d] bouts of memory loss." (Pl.'s Opp'n 1:20-21.) Consequently, Exide employees had their "blood drawn and tested monthly to monitor each worker's blood lead level ('BLL')." (Pl.'s Statement of Genuine Issues and Facts in Opp'n to Def. Exide Technologies' Mot. for Summ. J. ("Pl.'s SOF") ¶ 4; Pl.'s Decl. ¶ 5; Peña's Dep. 113:4-9.) Employees with "high blood lead would be turned or transferred over to [the] [P]lant services department... [which is] an area that has low airborne particles, " or "reassign[ed]... temporarily to a job involving less exposure to lead." (Peña's Dep. 112:19-113:3; Pl.'s SOF ¶ 5.) Plaintiff adds that "Exide has a vigorous safety program designed to keep employees safe from injury or illness, " Exide "conducts safety training every week[, ] and [even] has a safety talk' every workday." (Pl.'s SOF ¶ 7.)
Plaintiff declares, beginning in late 2006 and into 2007, Plaintiff asked Carlos Peña ("Peña"), the Plant Manager of Exide's Vernon Facility who had "day-to-day management authority over the Plant, " to pull Plaintiff out of the RMPS work area and relocate him to an area with lower lead exposure because Plaintiff "felt that [his] BLL was high and because he was feeling the effects of lead poisoning, such as being extremely tired and suffering memory loss." (Pl.'s Decl. ¶ 7; Decl. of Carlos Peña's in Supp. of Pl. Opp'n to Def.'s Mot. for Summ. J. ("Peña's Decl.") ¶ 7.) Plaintiff states he also shared this request with the Vernon Facility's former Environmental Health and Safety Manager, Diane Kennedy ("Kennedy"), and her replacement, Jose. (Pl.'s Decl. ¶ 7.)
Peña was terminated along with Plaintiff, filed a similar complaint alleging wrongful termination against Exide, but dropped his claims before his deposition was taken on September 29, 2010. (Peña's Dep. 102:14-103:17.)
In spite of Plaintiff's request, Peña did not relocate Plaintiff to a lower lead area because "corporate could not pull [him] out because there were financial constraints, specifically [because] authorization could not be made to replace [him] with another employee." ( Id. ¶ 8 (internal quotation marks omitted).) Peña explains that "Gault of Human Resources [ ] could not remove [Plaintiff] from the RMPS Department because [Gault] would not authorize another salaried employee to work in his place because Exide could not afford to hire an additional salaried employee." (Peña's Decl. ¶ 7.) Accordingly, Plaintiff declares he instituted "self-help" measures, such as writing things down to remember them later, in order to deal with the effects of the lead exposure. (Pl.'s Decl. ¶ 9.) Plaintiff states he "could only cope so long with the physical effects of [his] lead poisoning." ( Id. ¶ 11.)
B. The Period Before Hector Villavicencio's Injury in October 2007
Mr. Hector Villavicencio ("Villavicencio") is an Exide employee and was injured while was under the supervision of Granillo.
1. Investigation of Exide's Vernon Facility in 2006
Gault declares he became suspicious of the safety conditions at the Vernon Facility in November 2006 upon the resignation of Vernon's Environmental, Health and Safety Manager, Diane Kennedy. (Gault's Aff. ¶ 7.) In her resignation letter, Kennedy wrote, "there is a great deal of concealing of work injuries and issues at the Vernon Facility in particular." (Gault's Aff. ¶ 7; Ex. B.) Due to the letter, Gault and Fred Ganster ("Ganster"), Corporate Director of Environmental, Health and Safety, went to Vernon to investigate the situation because "Vernon supposedly had the best safety record of any Exide facility, going [five] years without a single lost-time accident." ( Id. ¶ 8.) Gault and Ganster interviewed several Vernon employees who "denied knowing anything about work-related injuries going unreported or employees being denied medical treatment." ( Id. ¶ 9.) Despite their inconclusive findings, Gault and Ganster were apprehensive due to Kennedy's allegations and the employees' non-responses, which further led them to believe "there was a cover-up going on." ( Id. ) Without any definitive proof, Gault and Ganster returned to Atlanta after counseling and warning Vernon's management to authorize medical treatment for employees and to report work-related injuries. ( Id. )
C. Villavicencio's Injury
On Saturday, October 6, 2007, Villavicencio, an employee of Exide's Vernon Facility, was injured while working in the RMPS division, where Plaintiff was the supervisor. (Gault's Aff., Ex. C.) Villavicencio dislocated his shoulder when he slipped and fell in the pan feeder. ( Id. )
According to Villavicencio's statement, it appears that batteries move along a band and are processed in a machine/mechanism in the RMPS division of the Vernon Facility. (Gault's Aff., Ex. C.) The batteries, however, will not move if the band gets stuck, and as a result, employees often enter the "pan feeder" to loosen up the band to keep the batteries moving along. ( Id. )
In the event of a work-related injury, Exide requires that the injured employee immediately notify the employee's supervisor, no matter how slight the injury may be. (Peña's Dep. 54:12-19.) Furthermore, as a matter of Exide policy and pursuant to the Federal Occupational Safety and Health Act (OSHA) and state workers' compensation laws, an injury report must be filled out by the department supervisor and "submitted to the facility manager or designee by the end of the shift that they occur on, " if an injury requires attention by a medical professional, and emergency transportation should be arranged by the facility manager or a designee for an injured employee when necessary. ( Id. 54:13-56:20.) Medical facilities are available for employees at each Exide facility, but employees cannot receive medical treatment for a work-related injury or illness unless the employee is authorized by a member of the Plant management to do so. (Gault's Aff. ¶ 5.)
"The [F]ederal Occupational Safety and Health Act (OSHA) and California law, including worker's compensation[, ] mandate the investigation and reporting of work-related illnesses and injuries. 29 C.F.R. § 1904.7(b)(3); Cal. Lab. Code §§ 110-139.6, XXXX-XXXXX." (Exide Technologies' Statement of Uncontroverted Material Facts and Conclusions of Law In Supp. of Its Mot. for Summ. J. ("Def.'s SOF") ¶ 9.)
It is undisputed that "[o]n March 29, 1996, Exide issued, and Plaintiff signed a written warning statement stating that as a supervisor, he is responsible for reporting all accidents... at the time of their occurrence and is required to complete an Accident Investigation Form prior to the end of [his] shift." (Pl.'s SOF ¶ 22 (internal quotation marks omitted).) Exide warned Plaintiff that "additional violations of this Safety Policy' could lead to discharge." ( Id. )
1. Exide's Receipt of the "Hotline" Complaint Regarding Villavicencio's Injury
Gault states he received an e-mail in October 2007 "notifying [him] that the Company had received a hotline call complaining that a supervisor, Modesto Granillo, had denied medical treatment to an hourly employee, Hector Villavicencio, after dislocating his right shoulder at work." (Gault's Aff. ¶ 4; Ex. A.) Gault points to Exhibit A of his affidavit, which provides a transcript of the hotline call message received by Exide on October 17, 2007, at 10:42 p.m. (Gault's Aff., Ex. A.) The caller stated: "Granillo, saw [Villavicencio] with his injury, and instead of sending him to the company clinic, he told [Villavicencio] to go to his own doctor, [and] that he would take care of the rest." ( Id. ) The caller also stated she was concerned that "Granillo [ ] violated the Code of Ethics and Business Conduct [R]ules, " and asked Exide to look into the matter because "[Granillo] tried to cover this accident up." ( Id. ) This call, Gault points out, was the second complaint received within 12 months alleging that Vernon's management failed to report work[-]related injuries. ( Id. ¶ 6.)
The caller was Laura Leon, the daughter of Hector Villavicencio. (Deposition of Hector Villavicencio on October 13, 2010 ("Villavicencio's Dep.") 34:9-22; Peña's Dep. 110:12-21.)
2. Exide's Investigation of the Incident
Gault and Ganster returned to Vernon on December 5-7, 2007, to investigate the allegations of the complaint. ( Id. ¶ 10.) On the way to Vernon, however, Gault's learned that another Vernon employee, Manuel Barraza ("Barraza"), suffered a hernia injury at work, which was not reported in a timely manner, and Barraza was refused medical treatment at work. ( Id. ¶ 11.) This further escalated Gault's concerns for Vernon's safety. ( Id. ) Barraza later sought treatment from his personal doctor, but died after receiving surgery to treat his hernia condition. ( Id. )
Barraza's injury was not reported until after Barraza's death. (Peña's Dep. 69:11-71:11.)
Upon arriving at Vernon, Medina gave Gault and Ganster a signed statement from Villavicencio, dated November 22, 2007. ( Id. ¶ 10.) According to the statement, Villavicencio recounts that on the day of his injury, Plaintiff said, "I know someone that can give a massage or go with [you to] your doctor, " when Villavicencio told Plaintiff about his injury. (Gault's Aff., Ex. C (internal quotation marks omitted).) Villavicencio replied he was going to his doctor and went to the locker room to shower, since employees were required to shower before leaving the Plant according to Exide's safety requirements. ( Id. ) As Villavicencio exited the parking lot, Plaintiff again offered to provide Villavicencio with a massage therapist, Villavicencio said "no, " and drove himself to his doctor. (Gault's Aff. ¶ 15 (8); Ex. C.)
Villavicencio's doctor was unable to treat Villavicencio's condition because he did not have an x-ray machine, so Villavicencio drove himself to his daughter's house. (Gault's Aff., Ex. C.) Villavicencio's daughter took Villavicencio to the Presbyterian Hospital in Whittier, California, where he was diagnosed and treated for a dislocated shoulder and discharged the same day. ( Id. ) Villavicencio adds that he received disability documentation from his regular doctor the day after he was treated, who recommended that he refrain from work activities for two weeks. ( Id. )
Villavicencio adds that he went back to the Vernon Facility on Tuesday, October 9, 2007, to report the accident and to give his disability documentation to Peña. ( Id. ) Villavicencio also stated "the [P]lant manager apologized that they did not do what they were suppose[d] to do, " explaining that "the supervisor[, ] [Granillo][, ] was supposed to send [him] to the clinic, " and told Villavicencio to come back on Wednesday, October 10, 2007, to visit the Vernon clinic. ( Id. ) Accordingly, Villavicencio returned to the Plant on October 10, 2007, to visit the clinic. ( Id. ) Villavicencio confirms he did not work October 8 through 10, 2007. ( Id. )
In addition to interviewing other Vernon employees, Gault and Ganster also interviewed Plaintiff, and "based on the information [they] obtained during [the] investigation, [Gault] came to the conclusion that [Plaintiff] was not being truthful." (Gault's Aff. ¶ 13.) Gault suspended Plaintiff from work until further notice due to Gault's concern that Plaintiff's continued presence at the Plant could potentially intimidate the other workers from revealing the truth. ( Id. )
Thereafter, Gault "invited employees to participate in a second interview, " and the "employees were more open." ( Id. ¶ 14.) From these discussions, Gault and Ganster learned the following: Vernon employees "Davis and Gurrola helped Villavicencio exit the pan after he lost his balance, fell and injured his right shoulder"; Plaintiff "told Villavicencio to go see his own doctor"; Plaintiff "would not authorize [ ] Villavicencio to go to the clinic that treats Exide personnel who are injured or become sick at work"; Plaintiff "offered to send Villavicencio to a masseuse instead[, ] [but] Villavicencio declined"; Plaintiff told both Davis and Gurrola to say they "[d]idn't know anything; didn't see anything"; and "[f]rom Monday, October 8, 2007[, ] through Wednesday, October 10, 2007, Mr. Granillo clocked Villavicencio in and out even though Villavicencio worked none of those days." (Gault's Aff. ¶ 15 (4, 5, 6, 10, 13, 14) (internal quotation marks omitted).)
From this information, Gault concluded that Vernon's "excellent' safety record was not the product of good safety practices, but rather the result of improper and unacceptable business conduct, aided and abetted by employee intimidation." (Gault's Aff. ¶ 16.) Gault further declares that "Exide's [P]lant [R]ules list clocking another employee in and out as one of the Plant's Intolerable Offenses' that is grounds for immediate dismissal." (Gault's Aff. ¶ 15 (14).)
Vernon had a celebration to commemorate a "[five]-years-without-a-lost-time-accident" achievement. (Peña's Dep. 66:25-67:14; Pl.'s Dep. 72:7-25.)
3. Plaintiff and Peña Deny Villavicencio's Recount of the Injury and Contest Gault's Findings
Plaintiff contends that Defendant's allegation claiming that Plaintiff failed to report Villavicencio's injury is false. (Pl.'s Decl. ¶ 16.) Plaintiff asserts he had no knowledge of Villavicencio's injury until the following workday. According to Plaintiff, on the day of the alleged injury, Villavicencio only asked if he could take the day off because he was feeling ill, and Villavicencio did not appear injured to Plaintiff. ( Id. ¶¶ 17, 18.) When Villavicencio did not show up to work the following Monday, Plaintiff states that he called Villavicencio at home and discovered that Villavicencio had dislocated his shoulder. (Pl.'s Decl. ¶ 18; Pl.'s Dep. 22:21-23:2.) Plaintiff then told Villavicencio to report to the Plant on Tuesday to see Peña. (Pl.'s Dep. 23:6-10.)
Plaintiff maintains that when he found out about Villavicencio's injury the Monday after it occurred, he "notified Peña immediately, " filled out an accident report with Peña, and "Peña authorized [Villavicencio] to see[k] medical treatment at the clinic at the Plant." (Pl.'s Decl. ¶ 19; Peña's Decl. ¶ 14.) Plaintiff also explains that Peña ordered Plaintiff to "credit Villavicencio for the days that he missed for his injury, " and to punch Villavicencio's time card in and out. (Pl.'s Decl. ¶ 19; Peña's Decl. ¶ 15; Pl.'s Dep. 25:15-26:14.) Plaintiff adds that Peña's order to credit Villavicencio hours did not seem "unusual" to Plaintiff "since Mr. Peña had day-to-day management authority at the Plant." (Pl.'s Decl. ¶ 19.) Peña and Exide conducted separate investigations of the Villavicencio injury incident. ( Id. ¶ 20.)
Peña also claims that during the course of Exide's investigation, "Gault [said] that he was going to terminate [Plaintiff] because he couldn't understand English very well and was not the type' of supervisor that Exide wanted...." (Peña's Decl. ¶ 16.) Plaintiff further states that Gault "immediately accused [Plaintiff] of lying, " and yelled at Plaintiff when he was interviewed regarding the Villavicencio injury. (Pl.'s Decl. ¶ 21; Pl.'s Dep. 39:15-22.) Contending that Gault "seemed to have his mind made up that [Plaintiff] must have intentionally failed to report [ ] Villavicencio's injury the day he was injured, " both Plaintiff and Peña allege that Gault did not give either of them a chance to explain their side of the story. (Pl.'s Decl. ¶ 21; Peña's Decl. ¶ 18.) Plaintiff denies attempting to "intimidate any witnesses in this matter into telling them what they should or not say regarding [ ] Villavicencio's injury." (Pl.'s Decl. ¶ 22.) Peña denies engaging in "any cover-up or scheme... to cover-up [ ] any work place injuries at Exide." (Peña's Decl. ¶ 20.)
4. Plaintiff and Peña's Termination in December 2007
At the conclusion of Exide's investigation and due to Plaintiff's and Peña's long tenure, Gault discussed the "seriousness of the investigation findings" and "what action to take" among a group of corporate managers at Exide, including Ganster, Medina, Joe Acker (Peña's manager in Atlanta), and Bruce Cole (Division President in Atlanta): Plaintiff had been with Exide for 33 years; Peña for 29 years. (Gault's Aff. ¶ 17.) Upon learning from the investigation that Plaintiff:
refused to authorize medical treatment for [ ] Villavicencio when he dislocated his shoulder while working, did not timely report the injury, did not properly report the injury [for] OSHA purposes, [ ] took proactive steps to cover up the injury, including clocking [ ] Villavicencio in and out on days he was absent due to injury[, ] and [sought] to intimidate employees (Messrs. Davis and Gurrola) who witnessed the incident,
Gault declares "[i]t was decided that Mr. Granillo's [and Mr. Peña's] conduct required discharge." (Gault's Aff. ¶¶ 18, 19.) Peña and Plaintiff were fired on December 20, 2007, approximately two and a half months after Villavicencio was injured. (Gault's Aff. ¶ 20; Pl.'s Decl. ¶ 23.) Gault returned to Vernon to personally deliver the news and to further explain why Exide was terminating Plaintiff. (Gault's Aff. ¶ 20.) Gault declares the decision to terminate Plaintiff "had nothing to do with age [or] alleged disability." ( Id. ¶ 23.)
D. Plaintiff's Job Performance and Job Security Assurances
Plaintiff declares, during his 33 years at Exide, he "receive[d] various raises, " and "was promoted in 1992 [to] supervisor in the RMPS Department." (Pl.'s Decl. ¶ 14.) Prior to becoming a supervisor, Plaintiff contends he was part of the Steelworkers Union and thereby protected by a labor agreement, which prohibited Exide from discharging union employees without cause. (Pl.'s Dep. 75:7-13.) Plaintiff, however, stated in his deposition that an individual named Margaret, who "was in charge at the time, " explained that "once [he] became a supervisor, it wasn't the same contract and that now [he] belonged to the company." (Pl.'s Dep. 75:22-24.)
Plaintiff claims, however, that Peña told him he could continue to work at Exide "if his work continued to be satisfactory." (Pl.'s Decl. ¶ 13.) Peña declares that Plaintiff was "an exemplary employee" and "had no performance problems that would justify any form of discipline, let alone [] termination." (Peña's Decl. ¶ 9.) Peña also affirms that he gave Plaintiff assurances for continued employment, stating that as long as "[Plaintiff's] performance continue[d] to be satisfactory, [he] could continue to work for Exide." ( Id. ¶ 10.) Taking into consideration "Peña's promises that [Plaintiff] could continue to work for Exide if [his] work performance was satisfactory and the repeated salaries and raises that [he] received during his employment at Exide, [Plaintiff] believed that [he] could only be terminated for good cause." (Pl.'s Decl. ¶ 15.)
Peña declares that he was shocked when Plaintiff was fired because Exide employees who purportedly fail to follow company policy were, "as a matter of practice, " retrained for performance issues. (Peña's Decl. ¶ 19.) However, Plaintiff received no warning or an opportunity to "dialogue between management as to how [his] performance could be improved." ( Id. ) Furthermore, pursuant to Peña's understanding, Exide's workplace injury policy "did not necessarily require an employee's direct supervisor to report the injury... [i]t could be any supervisor at the Plant." ( Id. ¶ 13.)
E. Procedural Background
Following his termination on December 20, 2007, Plaintiff sought and exhausted administrative remedies. (Compl. ¶ 18; Ex. 1.) On December 4, 2009, Plaintiff filed this action in the Superior Court of California in the County of Los Angeles. Plaintiff's Complaint alleges the following causes of action: (1) wrongful termination in violation of the Fair Employment and Housing Act ("FEHA"); (2) wrongful termination in violation of public policy; (3) retaliation/unlawful harassment; (4) breach of implied-in-fact agreement; and (5) intentional infliction of emotional distress. ( See Compl. ¶¶ 11-47.) On February 12, 2010, Defendant removed the action to this Court. ( See Not. of Removal.)
Defendant Exide moves for summary judgment alleging that "[n]o material fact is disputed. This [M]otion is based entirely on facts that Plaintiff either admits, has no memory of, or cannot dispute." (Def.'s Mot. 1.) Plaintiff contends that triable issues of fact exist as to whether Plaintiff's alleged failure to report Villavicencio's workplace injury was in fact pretext for unlawful conduct under the FEHA. (Pl.'s Opp'n 1.)
II. DISCUSSION
A. Standard for Summary Judgment
Summary judgment is proper only if "the pleadings, the discovery, and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A "material" fact is a fact that could affect the outcome of the case pursuant to the governing substantive law and is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non[-]moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Atlantic Attachment Co. v. Leggett Platt, Inc., 516 F.3d 1361, 1365 (Fed. Cir. 2008) (internal citations omitted).
To determine if a genuine issue of material fact exists, the court must not make credibility determinations or weigh conflicting evidence. Anderson, 477 U.S. at 255. Instead, the court must view the evidence in the light most favorable to the non-moving party, drawing all "justifiable inferences" in its favor. Id. (internal citation omitted); see Atlantic Attachment Co., 516 F.3d at 1365 (internal citation omitted); Group One, Ltd. v. Hallmark Cards, Inc., 254 F.3d 1041, 1045 (Fed. Cir. 2001) (internal citations omitted).
If the party seeking summary judgment demonstrates an absence of genuine material fact, the non-moving party "may not rest upon the mere allegations or denials of his pleading, but... must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. "When the nonmoving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact." Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993) (per curiam) (internal citations omitted).
B. Standard for Wrongful Termination Due to Unlawful Discrimination
In cases involving wrongful termination due to unlawful discrimination, motions for summary judgment are considered under the three-step burden-shifting analysis set forth by McDonnell Douglas Corporation v. Green. 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see, e.g., Guz, 24 Cal.4th 317, 354-55 (citing the three-part burden shifting analysis in McDonnell Douglas ). Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case for discrimination. See Guz, 24 Cal.4th at 354. Once a plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a "legitimate, non[-]discriminatory reason" for the employee's termination. Id. at 355-56. If the employer provides a reason, the plaintiff then has an "opportunity to attack the employer's proffered reason as pretexts for discrimination, or to offer any other evidence of discriminatory motive." Id.
"This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." Scotch v. Art Inst. of California, 173 Cal.App.4th 986, 93 Cal.Rptr.3d 338, 352 (2009) ( citing Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317, 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000) (internal quotation marks omitted).
Because California law under the FEHA mirrors federal law under Title VII, federal cases are instructive. See Guz, 24 Cal.4th at 354 ("Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes."); see also Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996).
1. Age and Disability Discrimination
Plaintiff's first claim is for wrongful termination based on age and disability in violation of the FEHA under California Government Code Section 12900, et seq. (Compl. ¶ 12.) Plaintiff alleges that he was "subjected to unlawful harassment in the form of comments that he was getting slow, that his age was catching up to him, that he was no longer useful, that he no longer was productive as before, that he was becoming lazy because he was one of the highest paid employees, etc., " in 2006 and 2007. ( Id. ¶ 7.) Plaintiff states he was over 50-years-old when the harassment, discrimination, and termination occurred. ( Id. ¶ 6.)
In reference to disability discrimination, Plaintiff states that he "suffered from qualifying disabilities, including physical injuries arising from being exposed to toxins in his blood which affected his overall body, skin, bones, organs, and caused Plaintiff to suffer pain, lethargy, dizziness and other related symptoms." ( Id. ¶ 13.) Plaintiff adds that he suffers from asthma, a physical limitation to his left knee, and kidney stones. (Pl.'s Dep. 81:18-21; 83:21-25; 84:25-85:11.) Plaintiff contends his conditions "constituted qualifying disabilities in that they affected his ability to engage in the most basic major life activities, including his "ability to walk, stand, [ ] sit for long periods, and engage[ ] in his regular work duties." (Compl. ¶ 13.)
Plaintiff, however, claims that he was qualified to work with accommodations. ( Id. ) Plaintiff alleges he reported his condition, requested accommodations, "including less work hours, time off to obtain treatment, [and] less physically demanding work, " but "Defendant[ ] refused to provide [him] with any accommodations, refused to engage in any reasonable interactive dialogue regarding Plaintiff's disability, and instead, engaged in a pattern of harassment and retaliation." ( Id. ¶ 14.)
Plaintiff states that Defendant terminated him on December 20, 2007, and Defendant's reasons for terminating Plaintiff were untrue and pretext for age and disability discrimination. ( Id. ¶ 15.) Plaintiff "believes that [his] termination from Exide was motivated by [his requests] to be removed and placed in [an] area of lower lead levels, " because he "received a satisfactory performance rating in 2007 for [his] annual review and had no significant performance problems preceding [his] termination." (Pl.'s Decl. ¶ 12.) Plaintiff says he was terminated because he could "not work as fast or as efficiently as he did before, and without some minor accommodations." (Compl. ¶ 15.)
a. Prima Facie Elements for Age Discrimination
A plaintiff can establish a prima facie case for age discrimination by demonstrating that he was: (1) a member of the protected class [age 40-70]; (2) performing his job satisfactorily; (3) discharged; and (4) replaced by substantially younger employees with equal or inferior qualifications. Nidds v. Schindler Elevator Co., 113 F.3d 912, 917 (9th Cir. 1997); see Hersant v. Dep't of Social Servs., 57 Cal.App.4th 997, 67 Cal.Rptr.2d 483, 486 (Cal.Ct.App. 1997) ("The general requirement is that the employee offer circumstantial evidence such that a reasonable inference of age discrimination arises. The requirement is not an onerous one."); see also Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) ("The requisite degree of proof necessary to establish a prima facie case for Title VII... on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence."). A plaintiff alleging age discrimination in violation of the FEHA must produce either direct or indirect evidence supporting a claim of disparate treatment by an employer. See Guz, 24 Cal.4th at 354. If a plaintiff relies solely on circumstantial evidence to support FEHA discrimination, the three-step Mc Donnell Douglas burden shifting analysis provides that discrimination may be "inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." Id.
Here, it is uncontested that Plaintiff was 55-years-old when he was terminated from Exide. Defendant claims, however, that Plaintiff cannot establish a prima facie case for age discrimination because "the two individuals he claims replaced him both have qualifications superior to him." (Def.'s Mot. 3:9-13.) In his Opposition, Plaintiff does not respond to Defendant's argument. (Pl.'s Opp'n 9.) Specifically, Plaintiff does not claim that Rafael Perez ("Perez") and David Vasquez ("Vasquez") had equal or inferior qualifications to Plaintiff. In fact, at his deposition, Plaintiff admitted that he reported to Perez before he was fired. (Pl.'s Dep. 45:18-20.)
Defendant relies on Buchanan v. Safeway Stores, Inc., 1997 WL 812252, *2 (9th Cir. Dec. 24, 1997), to support its claim that Plaintiff must show that he was not only replaced by someone significantly younger than him, but also replaced by someone with either equal or inferior qualifications to establish a prima facie case for age discrimination. (Def.'s Mot. 3:7-8.) While this is an unpublished case unfit for citation pursuant to the Ninth Circuit Rules (9th Cir. R. 36-3), the same test is articulated in other published Ninth Circuit cases. See , e.g., Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th. Cir. 1990) ("(4) was replaced by a substantially younger employee with equal or inferior qualifications.") (internal citations omitted); Wallis, 26 F.3d at 891 ( citing Rose, 902 F.2d at 1421) (same).).
Defendant states that Vasquez "had already been working at the Vernon Facility (for 17 years) at the time Plaintiff was released, " citing Plaintiff's Deposition testimony at Pl.'s Dep. 46:2-8. (Def.'s Mot. 12:13-15.) Upon examining Plaintiff's Deposition at 46:2-8, the Court observes that Plaintiff, in fact, makes no mention of how long Vasquez worked at Exide; rather, he solely volunteers that it was his belief that Vasquez was a computer technician. (Pl.'s Dep. 46:2-8.)
Additionally, in O'Connor v. Consolidated Coin Caterers Corporation, the Supreme Court explained that "an inference [that a decision was based on age discrimination] cannot be drawn from the replacement of one worker with another worker insignificantly younger." 517 U.S. 308, 313, 116 S.Ct. 1307, 124 L.Ed. 2d 433 (1996); see Douglas v. Anderson, 656 F.2d 528, 533 (9th Cir. 1981) ("If the replacement is only slightly younger than the plaintiff, then it is less likely that an inference of discrimination can be drawn.").
In his pleadings, Plaintiff claims Vasquez and Perez were two younger workers who replaced him after he was discharged. (Pl.'s Opp'n 9:16-18.) However, at his deposition, Plaintiff stated that he believes that Perez "could be 50, " and he "doesn't know exactly... but [he] thinks [Vasquez is] about 35 years old." (Pl.'s Dep. 45:15-46:1.) Even when viewing this in a light most favorable to Plaintiff, it appears that Perez is not much younger than Plaintiff and is part of the same protected age class as Plaintiff. The fact that Plaintiff was replaced by Perez does not give rise to an inference of age discrimination because Perez does not have inferior qualifications and is insignificantly younger than Plaintiff. Accordingly, Plaintiff fails to demonstrate evidence of the fourth Nidds factor. See Nidds, 113 F.3d at 917.
Defendant asserts that Perez's date of birth is September 17, 1960, and Perez has worked at Exide for 31 years. (Def.'s Mot. 12, n.9.)
Notwithstanding, failure to prove the fourth factor is not dispositive of Plaintiff's age discrimination claim. In situations where the discharge is a product of general workforce reduction, a plaintiff can establish a case for age discrimination so long as the plaintiff shows "through circumstantial, statistical, or direct evidence that the discharge occurred under circumstances giving rise to an inference of age discrimination." Rose, 902 F.2d at 1421. In Wallis, the court reasoned because the plaintiff's job obligations were assumed by current employees of the company, the plaintiff's job was eliminated, and as a result, the plaintiff's "claim [was] more analogous to a reduction in [work] force situation which does not require proof of replacement, but allows alternative proof of an inference of age discrimination." Wallis, 26 F.3d at 891. Similarly here, Plaintiff states that his job was assumed by two employees already employed at Exide. The Court considers Plaintiff's claim more analogous to a reduction in work force situation where demonstrating replacement by someone who is substantially younger with equal or inferior skills is not required to state a case for discrimination. Plaintiff must only provide some evidence giving rise to an inference of age discrimination.
Nevertheless, Plaintiff fails to provide any "circumstantial, statistical or direct evidence that the discharge occurred under circumstances giving rise to an inference of age discrimination." Rose, 902 F.2d at 1421 (internal citations omitted). Assuming Plaintiff's allegations in his Complaint concerning comments made about his age is sufficient to raise an inference for age discrimination, Plaintiff's admissions establish otherwise. In Plaintiff's Deposition, Plaintiff was asked, "[d]id anyone ever tell you that age was catching up with you?" and Plaintiff responded, "[p]robably yes, probably not. I don't know. No." (Pl.'s Dep. 50:20-25.) When asked later if "anyone at Exide ever ma[d]e any statement to [him] that [he] thought reflected bias against [him] because of his age?" Plaintiff responded, "No." ( Id. 51:14-17.) Defendant contends these statements contradict the Plaintiff's allegations in his Complaint. (Def.'s Mot. 10:15-11:15.) The Court agrees. Plaintiff's sworn assertions negate an essential element of his age discrimination claim. Moreover, Plaintiff fails to explain the contradiction or direct the Court to other evidence giving rise to an inference of age discrimination.
See comparatively Diaz v. Fed. Express Corp. ( Diaz ), 373 F.Supp.2d 1034, 1065 (C.D. Cal. 2005) (reasoning that two plaintiffs presented evidence, including statistical evidence of the average age of employees fired and hired, and circumstantial evidence that could show that the supervisor was most likely aware of the younger ages of the individuals he hired compared to the individuals he laid off, the supervisor's decision not to fire several younger, less experienced workers, and the qualification of the plaintiffs relative to their replacements, that could sufficiently give rise to an inference of age discrimination).
Accordingly, Plaintiff has not satisfied his burden of providing at least a little evidence such that a reasonable jury could return a verdict for Plaintiff. Anderson, 477 U.S. at 248.
b. Prima Facie Elements for Disability Discrimination
The "FEHA makes it an unlawful employment practice to discriminate against any person because of a physical or mental disability." Faust v. California Cement Co., 150 Cal.App.4th 864, 886 (Cal.Ct.App. 2007); see Cal. Gov't Code § 12940; see Avila v. Cont'l Airlines, Inc., 82 Cal.Rptr.3d 440, 448 (Cal. App. Ct. 2008). To state a prima facie case for disability discrimination under the FEHA, a plaintiff must show the following: "(1) he suffers from a disability; (2) he is otherwise qualified to do his job; and (3) he was subjected to adverse employment action because [of] his disability." Faust, 150 Cal.App.4th at 886.
"Inasmuch as the FEHA and the interpretative regulations of the California Code of Regulations were modeled on the Federal Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990 (the ADA'), decisions interpreting those laws may be useful in deciding cases under the FEHA... therefore under certain circumstances, we may look to the cases from the [ADA] when interpreting the FEHA." Hanson v. Lucky Stores Inc., 74 Cal.App.4th 215, 224 (Cal.Ct.App. 1999) (internal citations and quotation marks omitted).
To establish such a case, Plaintiff must state that he suffered from a disability or was considered disabled. California Government Code section 12926(k) defines "physical disability" to include, but does not limit it to the following: "(1) [h]aving a physiological disease, disorder, condition that does both of the following: (A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine, " and "(B) Limits a major life activity." Cal. Gov't Code 12926(k)(1).
Here, Plaintiff alleges that he suffered from disabilities, "including physical injuries arising from being exposed to toxins in his blood which affected his overall body, skin, bones, organs, and caused Plaintiff to suffer pain, lethargy, dizziness, and other related symptoms, " even to the time of his termination. (Compl. ¶ 13.) At his deposition, Plaintiff further claimed that he suffers from asthma, a physical limitation to his left knee, and kidney stones. (Pl.'s Dep. 81:18-21; 83:21-25; 84:25-85:11.) Plaintiff claims these conditions affect his ability to engage in major life activities, including Plaintiff's ability to walk, stand, sit for long periods of time, and engage in regular work duties. (Compl. ¶ 13.)
Defendant contends that "Plaintiff cannot establish a prima facie case because there is no evidence to show he was disabled." (Def.'s Mot. 3:16-18.) Apart from his statement, Plaintiff has not directed the Court to other evidence to support a disability. In any event, a determination of whether Plaintiff was disabled within the meaning of the Government Code is immaterial because Plaintiff does not point to any evidence showing he was subjected to adverse employment action due to a disability.
While Defendant's contention is phrased generally, it is undisputed by both parties that Plaintiff suffers from asthma, a physical limitation to his left knee, and kidney stones. (Def.'s SOF ¶¶ 53, 55, 58; Pl.'s SOF ¶¶ 53, 55, 58.)
Assuming that Plaintiff was disabled, to establish a prima facie case for disability discrimination, Plaintiff must also show that he suffered adverse employment action. Here, it is undisputed that Plaintiff was terminated. Defendant, however, contends there is no causal connection between the alleged physical disability and Plaintiff's termination because the evidence establishes that Plaintiff was terminated for "denying emergency medical treatment to an injured employee and then attempting to conceal the accident altogether, " and not because of an alleged disability. ( Id. 3:16-19; 3:28-4:5.) Other than the temporal proximity between the disclosure of his alleged disabilities and his subsequent termination, Plaintiff did not offer other evidence to support causation. "[T]emporal proximity alone is not sufficient to raise a triable issue as to pretext [if] the employer [ ] offer[s] evidence of a legitimate non[-]discriminatory reason for the termination, " as Defendant provides below. Arteaga v. Brink's, Inc., 77 Cal.Rptr.3d 654, 675 (Cal.Ct.App. 2008). Here, Plaintiff has failed to direct the Court to other evidence that demonstrates that his termination was a result of his disability.
Additionally, "[u]nless there is some evidence an employer knows an employee is suffering from a disability, it is impossible for an employee to claim he or she was discharged because of it." Pensinger v. Bowsmith, Inc., 60 Cal.App.4th 709, 722 (Cal.Ct.App. 1998), overruled on other grounds by Colmenares v. Braemar Country Club, Inc., 29 Cal.4th 1019, 1031, n.6 (2003). "An adverse employment decision cannot be made because of a disability when the disability is not known to the employer." Brundage v. Hahn, 57 Cal.App.4th 228, 66 Cal.Rptr.2d 830, 835 (Cal.Ct.App. 1997); see Avila, 82 Cal.Rptr.3d at 450 (internal citations omitted) ("While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the FEHA.").
Defendant offers that Peña, Plaintiff's supervisor, admitted at his deposition that he was unaware of any disability Plaintiff had. (Peña's Dep. 93:17-95:4.) Even if Peña was aware of Plaintiff's disability, he had nothing to do with the decision to terminate Plaintiff: Peña was let go on the same day by the same management officials and for the same reasons Plaintiff was let go. Additionally, Gault declares he "had no idea if [ ] Granillo claim[ed] to have a physical or mental impairment, no idea what his blood lead level was, no idea that he claims to have protested' anything, and no idea how old he is, " until Plaintiff filed this action. (Gault's Aff. ¶ 22.) Plaintiff has proffered no evidence to show that his disabilities were factors in Exide's decision to terminate him. Plaintiff also does not provide evidence, other than Plaintiff's account of his request for a transfer, to demonstrate the employer's awareness of Plaintiff's disabilities. Consequently, Plaintiff has not provided the Court with something more than speculation that his termination was due to his alleged disabilities resulting from lead exposure. See Bradley, 104 F.3d at 270. Accordingly, because Plaintiff there is no causal connection between a disability and termination, summary adjudication of Plaintiff's disability discrimination claim is in order.
(1) Failure to Accommodate and Failure to Engage in a Good Faith Interactive Process
Plaintiff alleges that Defendant violated the FEHA for failing to accommodate his alleged disabilities and failing to engage in a good faith interactive process. (Pl.'s Opp'n 8:1-33.) Plaintiff, however, cannot survive summary adjudication on this claim because the prima facie elements require, among other things, evidence of the Plaintiff's disability and the employer's failure to accommodate. Scotch, 93 Cal.Rptr.3d at 358 ("The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.") (internal citations omitted)). However, Plaintiff again only offers his own conclusory allegations to support his claim that Defendant failed to reasonably accommodate his disability. Accordingly, Plaintiff cannot establish a failure to accommodate claim.
It appears that Plaintiff is seeking to supplement his Complaint by expanding upon these claims in his Opposition to legitimize the conclusory allegations in his Complaint. In Plaintiff's Complaint, the "failure to accommodate" and "failure to engage in interactive process" claims are alleged under the disability discrimination claim in Paragraph 14. (Compl. ¶ 14 (solely stating that "Defendant[ ] refused to provide Plaintiff with any accommodations [and] refused to engage in any reasonable interactive dialogue regarding Plaintiff's disability.").) In his Opposition, however, Plaintiff seeks to add substance to these claims. (Pl.'s Opp'n 7-8.) The Ninth Circuit has held that "summary judgment is not a procedural second chance to flesh out inadequate pleadings." Wasco Prods. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006). For this reason alone, Plaintiff's claims alleging failure to accommodate and failure to engage in the interactive process both cannot withstand summary judgment.
The evidence establishes that Defendant took steps to accommodate Plaintiff's undisputed disabilities, including his bad knee, asthma, and kidney stones, as Plaintiff admitted at his deposition that Defendant provided him with access to an electric cart (Pl.'s Dep. 18:21-19:25), lead men to assist him with his work ( Id. 10:21-24, 12:10-13:2), and an office where he could sit down ( Id. 17:3-21).
Moreover, Plaintiff does not offer evidence of Defendant's failure to engage in the interactive process. "The FEHA makes it unlawful for an employer to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition." Scotch, 93 Cal.Rptr.3d at 352 (internal citation and quotations marks omitted). In Plaintiff's Opposition, after discussing his reasonable accommodation claim, Plaintiff contends in conclusory form that "the denial of Plaintiff's request then would also constitute a failure to engage in a good faith, interactive process to accommodate disability." (Pl.'s Opp'n 9:2-4.)
In response, Defendant contends that it is undisputed that Plaintiff's BLL was at level 28 when he was tested on May 30, 2007, and Plaintiff conceded at his deposition that this was not high enough to require a transfer to another department. (Supp. Rep. 3:21-5:1; Pl.'s Dep. 60:20-62:12.) Consequently, Plaintiff has failed to show that there is a material fact in dispute with regards to his BLL prior to termination or to otherwise show that Plaintiff had a known physical condition due to a high BLL that required accommodation.
As Plaintiff has not directed the Court to evidence of a disability that Defendant was aware of, Defendant was not required to engage in a good faith interactive discussion. Without more, the Court cannot determine what Plaintiff is referring to and how Defendant failed to engage in a good faith interactive process.
Accordingly, because there are no triable issues concerning Plaintiff's failure to accommodate and failure to engage in good faith interactive process claims, summary adjudication is granted on Plaintiff wrongful termination claim due to disability discrimination.
2. Part Two: Defendant's Legitimate, Non-Discriminatory Reason
For the purposes of a complete analysis, "assuming for the sake of argument that [Plaintiff] can establish a prima facie case, [Defendant] [must] proffer[ ] evidence of a legitimate, non[-]discriminatory reason for [the] discharge." Arteaga, 77 Cal.Rptr.3d at 667 ("Employers are sometimes forced to remove employees who are performing poorly, engaging in improper work conduct, or severely disrupting the workplace.... Precedent does not prevent [an employer] from removing such an employee simply because the employee [recently] engaged in protected work activity."); Guz, 24 Cal.4th at 358 ("[L]egitimate reasons in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination."). Here, the burden is on the Defendant to demonstrate that the "adverse action was taken for other than impermissibly discriminatory reasons." Wallis, 26 F.3d at 889. As mentioned, Defendant contends that Plaintiff was terminated for serious violations of Exide's clearly established policies and procedures.
Defendant claims it discharged Plaintiff after a two month investigation revealed that Plaintiff violated Exide's company policies. (Def.'s Mot. 4-9.) Specifically, Plaintiff was terminated "for denying emergency medical treatment to [ ] [Villavicencio] and then attempting to conceal the accident altogether." ( Id. 3:28-4:4.) Exide's policy and federal and state laws require supervisors to provide emergency medical treatment to injured employees and to file an accident report when there is a work-related injury or illness. ( Id. 4:12-22.) Furthermore, Gault asserts that "[c]locking another employee in and out is included among Exide's [P]lant [R]ules as an Intolerable Offense, '" and the offense in and of itself warrants immediate dismissal. (Def.'s Mot. 8:21-23; Gault's Aff. ¶ 15 (14).)
From the investigation prompted by the complaint made by Villavicencio's daughter, Gault concluded that Plaintiff failed to provide medical treatment for Villavicencio, sought to conceal the accident by clocking in Villavicencio on days he did not work, and further intimidated other employees from stating anything to the contrary. (Def's Mot. 6-8.) Failure to perform in accordance with the standards set by the employer is sufficient to constitute a legitimate business reason for termination. See Hersant, 57 Cal.App.4th at 1007-10.
Defendant's reasons for having terminated Plaintiff, specifically due to Plaintiff's violation of company policies and federal and state laws, is legitimate and non-discriminatory, and manifestly unrelated to age or disability discrimination. Guz, 24 Cal.4th at 355. Defendant's investigation and good faith belief establish that Plaintiff's behavior was inconsistent with the interests of Exide, and therefore, a "legitimate, non-discriminatory" explanation for the termination has been offered. Diaz v. Eagle Produce, Ltd. (Diaz II), 521 F.3d 1201, 1211-12 (9th Cir. 2008); Guz, 24 Cal.4th at 355-56.
3. Part Three: Plaintiff Cannot Show that Defendant's Proffered Reason for Termination is Pretextual
While Plaintiff cannot show a prima facie case for either age or disability discrimination, and considering Defendant's legitimate, non-discriminatory reason for termination, Defendant's request for summary judgment on the age and disability discrimination claim in violation of FEHA can be granted for these reasons alone. However, the Court nevertheless considers whether Plaintiff has shown that Defendant's proffered reason for termination was pretextual.
Once an employer has established a legitimate, non-discriminatory reason for terminating the plaintiff, the burden shifts back to the plaintiff, who must produce "substantial responsive evidence to show that [the employer's] ostensible motive was pretextual; that is, that a discriminatory reason more likely motivated the employer or that the employer's explanation is unworthy of credence." King v. United Parcel Serv., Inc., 60 Cal.Rptr.3d 359, 366 (Cal.Ct.App. 2007) ( citing Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 398 (7th Cir. 1997)) (internal quotation marks omitted); see Hersant, 67 Cal.Rptr.2d at 488 ("It is not enough for the employee simply to raise triable issues of fact concerning whether the employer's reasons for taking the adverse action were sound. What the employee has brought is not an action for general unfairness but for [ ] discrimination.").
"[T]he plaintiff must show that the articulated reason is pretextual either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. Although a plaintiff may rely on circumstantial evidence to show pretext, such evidence must be both specific and substantial." Villiarimo, 281 F.3d at 1062 (9th Cir. 2002) (internal citations and quotation marks omitted). "An employee in this situation cannot simply show the employer's decision was wrong, mistaken, or unwise. Rather the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence and hence, infer that the employer did not act for the asserted non-discriminatory reasons." Villanueva v. City of Colton, 160 Cal.App.4th 1188, 1195 (Cal.Ct.App. 2008) (internal citations omitted). "While the plaintiff does not have to show direct evidence of pretext, [he] cannot merely make conclusory statements that the defendant's decisions were motivated by unlawful discrimination.... The plaintiff must produce specific, substantial evidence of pretext. [An] employee's subjective personal judgment of [his] competence alone does not raise a genuine issue of material fact." Diaz, 373 F.Supp.2d at 1064 (internal citations and quotation marks omitted).
Here, Defendant has satisfied its burden by clearly showing a legitimate, non-discriminatory reason for terminating Plaintiff. Plaintiff offers four arguments to rebut Defendant's proffered reason for termination, none of which raise a triable issue of material fact.
First, Plaintiff contends that "the mere timing of Plaintiff's termination, " which was over two months after Plaintiff's alleged violations of Exide's policies, is "completely suspicious" considering the fact that Defendant was wary of policy violations at the Vernon Facility for over a year and "the timing of Plaintiff's termination in light of his requests to [be] removed from his physical location at Exide (and which as stated was denied by Exide on purported grounds that Exide could not afford to hire an additional salaried employee to replace Plaintiff)...." (Pl.'s Opp'n 13:4-10.) While the substance of Plaintiff's claim is not entirely clear, it appears that Plaintiff is seeking to raise a claim of pretext based on the temporal aspect of when Plaintiff's termination occurred, the prior investigation, and Plaintiff's request to be relocated. This argument is at best speculative and Plaintiff has not demonstrated "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions, " in Exide's proffered reason for terminating Plaintiff that a reasonable trier of fact can find them untrustworthy. Villanueva, 160 Cal.App.4th at 1195
Second, Plaintiff alleges that Gault gave inconsistent reasons for terminating Plaintiff when Gault stated to Peña that "Plaintiff was terminated because of his English language skills and [because Plaintiff did] not [fit] into the corporate supervisor image Exide wanted to present...." (Pl.'s Opp'n 13:10-15.) Notwithstanding, these alleged statements do not raise a genuine issue of material fact because they have nothing to do with his age or alleged disabilities and are not sufficiently specific or substantial to give rise to an inference of age or disability discrimination.
Peña provides a similar account in his Declaration. (Peña's Decl. ¶ 14.) The Court notes that Plaintiff did not plead a discrimination claim based on race and/or national origin.
Third, Plaintiff alleges that "the policy itself that Exide asserts Plaintiff violated is in itself questionable, as [ ] Peña, Plant Manager of the Vernon, California Plant at the time of Plaintiff's termination, stated that a report of an accident did not necessarily need to be reported by the injured employee's direct supervisor, and as stated, a report was nonetheless, in fact made by Plaintiff and [ ] Peña upon their knowledge of the injury." (Pl.'s Opp'n 13:16-20.) Plaintiff appears to be alleging that Defendant's decision to terminate Plaintiff was based on an injury reporting policy that is not clearly delineated.
Nevertheless, the court in Guz concluded, "if non-discriminatory, [defendant's] true need not necessarily have been wise or correct. While the objective soundness of an employer's proffered reasons supports their credibility, the ultimate issue is simply whether the employer acted with a motive to discriminate illegally." Guz, 24 Cal.4th at 358; see Kariotis v. Navistar Intern. Transp. Corp., 131 F.3d 672 (7th Cir. 1997) (suggesting that proffered reasons, if non-discriminatory on their face and honestly believed by the employer, will suffice even if foolish, trivial, or baseless). In Arteaga , the court explained that the accuracy of an employer's conclusion is generally irrelevant:
The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason. While an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is... whether the given reason was a pretext for illegal discrimination. The employer's stated legitimate reason... does not have to be a reason that the judge or jurors would act on or approve.
Arteaga, 77 Cal.Rptr.3d at 668 (internal quotation marks omitted); see Villiarimo, 281 F.3d at 1063 ("In judging whether [defendant's] proffered reasons were false, ' it is not important whether they were objectively false (e.g. whether [defendant] actually lied). Rather, courts only require that an employer honestly believed its reason for its actions, even if its reason is foolish or trivial or even baseless.") (emphasis in original) (internal citations and quotation marks omitted); see also King, 60 Cal.Rptr.3d at 368 ("It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.").
Here, Defendant does not have to show that Plaintiff did not file a report, but rather it had a good faith belief that Plaintiff violated Exide's policies in not causing a report to be timely filed. Furthermore, Defendant is not required to show the objective validity of the policy or even demonstrate the objective validity of its reasons finding that Plaintiff violated such policies. Defendant provides its good faith conclusion that Plaintiff violated Exide's company policies warranting termination was based on the following considerations:
(1) the "concealment" accusations in Diane Kennedy's 2006 resignation letter;
(2) Exide's receipt of a hotline complaint alleging denial of medical treatment and concealment of [ ] Villavicencio's injury;
(3) the death of Manual Barraza following surgery for a work-related, yet unreported hernia;
(4) Vernon's ostensibly "excellent" safety record;
(5) the statements of Messrs. Villavicencio, Davis[, ] and Gurrola, and
(6) Plaintiff falsely clocking Villavicencio in and out for three days that Villavicencio did not work.
(Def.'s Mot. 17:23-18:6.) Defendant further claims that these facts were sufficiently compelling to find Plaintiff and Peña responsible for serious issues at Vernon justifying dismissal. Moreover, Gault asserts that he did not make the decision to terminate Plaintiff and Peña alone, but the decision was made amongst a group of corporate managers including Ganster, Medina, Acker, Cole, and himself. (Gault's Aff. ¶ 17.) Plaintiff does not point to evidence that creates a triable issue regarding Defendant's good faith belief that Plaintiff violated company policies.
Finally, Plaintiff argues that the "timing of Plaintiff's termination also highlights that Defendant['s] reasons for terminating Plaintiff were pre-textual[, ] [because considering] Plaintiff's [e]gregious violation of Exide's work place policy[, ] [it] took over two months for Exide to suspend Plaintiff from his position and terminate him thereafter." (Pl.'s Opp'n 10:21-11-2.) Similar to his first pretext argument, Plaintiff is asserting that if Defendant's reason for his termination was not pretextual, he would have been fired sooner. However, this argument is more supportive of Defendant's claim that it engaged in a good faith investigation and thoughtful decision making process, taking over two months to investigate and come to a collective decision among management officials. Thus, this argument also fails to raise triable issues regarding Defendant's reason for termination.
Having considered all the pleadings, the Court concludes that Plaintiff has failed to direct the Court to sufficient evidence demonstrating that Defendant did not honestly believe that Plaintiff violated Exide's policies in order to establish pretext. Accordingly, Defendant's Motion is GRANTED as to Plaintiff's first cause of action for wrongful termination in violation of the FEHA for age and disability discrimination.
B. Wrongful Termination in Violation of Public Policy
Plaintiff's second cause of action seemingly alleges that Defendant's wrongful termination of Plaintiff based on age and disability discrimination also violates public policy pursuant to the California State Constitution and provisions of the FEHA. (Compl. ¶ 21.)
Plaintiff's Complaint does not state that Defendant violated public policy as a result of Plaintiff's alleged wrongful termination: he only alleges that "significant public policies exist in the State of California, " and "such policies are codified in the State Constitution, [and] the provisions of the [FEHA]." (Compl. ¶ 21 (emphasis added).)
"The tort cause of action for wrongful termination in violation of public policy provides a vehicle for recourse that otherwise would be unavailable under general rules of the at-will employment doctrine." Diaz, 373 F.Supp.2d at 1065. "Apart from the terms of an express or implied employment contract, an employer has no right to terminate employment for a reason that contravenes fundamental public policy as expressed in a constitutional or statutory provision." Scotch, 93 Cal.Rptr.3d at 367. Thus, "this public policy exception allows an employee to bring a tort cause of action against an employer who terminates an at-will employment on a ground that violates fundamental public policy." Diaz, 373 F.Supp.2d at 1065 (internal citations and quotation marks omitted).
Here, Plaintiff alleges his wrongful termination violates public policies "codified in the State Constitution [and] the provisions of the [FEHA], " which essentially "prohibit[s] termination of a person based on their age or disability." (Compl. ¶ 21.) However, Plaintiff's claim for wrongful termination in violation of public policy cannot stand if claims alleging discriminatory conduct pursuant to the FEHA are no longer viable, as articulated above. See Reno v. Baird, 18 Cal.4th 640, 664 (1998) (standing for the proposition that if a plaintiff cannot sue the defendant under the FEHA, the plaintiff cannot sue the defendant for wrongful discharge in violation of public policy).
Plaintiff's claim for wrongful termination in violation of public policy fails for the reasons his FEHA discrimination claim fails and additionally because Plaintiff is unable to pursue a public policy claim without a viable FEHA claim. Accordingly, Defendant's Motion is GRANTED as to Plaintiff's second cause of action for wrongful termination in violation of public policy.
C. Retaliation/Unlawful Harassment Claim
Plaintiff's third cause of action alleges that he was "a target of unlawful retaliation, harassment and discrimination due to his workers['] compensation claims, disability, and age." (Compl. ¶ 30.) In addition to the comments made to Plaintiff concerning his age, Plaintiff alleges Gault was in a superior position than Plaintiff, had "authority to fire and reprimand Plaintiff, " and due to a change of management in 2006, Plaintiff was "subjected to harassment, ridicule, and harassment due to his age and disability." (Compl. ¶ 31.) Plaintiff alleges his claim for "retaliation stems from Defendant['s] decision to terminate Plaintiff on the basis of his physical disability, age, and requests for reasonable accommodations." (Pl.'s Opp'n 10:14-16.)
Plaintiff alleges that in 2006 and 2007, he was "subjected to unlawful harassment in the form of comments that he was getting slow, that his age was catching up to him, that he was no longer useful, that he no longer was productive as before, that he was becoming lazy because he was one of the highest paid employees, etc." (Compl. ¶ 7.)
1. Retaliation
"The FEHA makes it unlawful for an employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." Cal. Gov't Code § 12940(h).
To establish a prima facie case of retaliation, a plaintiff must show that: "(1) he or she engaged in a protected activity, ' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1042, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (2005) (internal citations omitted).
Here, Plaintiff claims that Defendant's decision to terminate him was a retaliatory act based on Plaintiff's physical disability, age, and requests for reasonable accommodations. (Pl.'s Opp'n 10:14-19.) Plaintiff adds that "Plaintiff's requests to be removed from his physical location at Exide and the denial of those requests occurred in the same time frame as the time of his termination." ( Id. 10:17-19.) In support of this assertion, Plaintiff points to Plaintiff's Separate Statement of Genuine Issues and Material Facts, but fails to direct the Court to where the evidence is located. ( Id. 10:16-19.)
"[T]he district court may determine whether there is a genuine issue of fact, on summary judgment, based on the papers submitted on the motion and such other papers as may be on file and specifically referred to and facts therein set forth in the motion papers.... [However, t]he district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found. " Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th. Cir. 2001) (emphasis added).
Defendant questions what Plaintiff's alleged protected activity is and further claims there is no causal link between any protected activity and Plaintiff's termination. (Def.'s Mot. 19:11-20:15.) Defendant terminated Plaintiff because Plaintiff violated Exide's policies and not due to retaliatory action. To establish causation, a plaintiff must show "by a preponderance of evidence that engaging in the protected activity was the reason for firing and that but for such activity[, ] the plaintiff would not have been fired." Kauffman v. Sidereal Corp., 695 F.2d 343, 345 (9th Cir. 1982). Here, Plaintiff again fails to establish a casual connection: Plaintiff again only puts forth a conclusory assertion, does not offer any support to show how any protected activity was related to the decision for his termination, and fails to show that the request to be transferred to another location caused his termination. Accordingly, Plaintiff's claim for retaliation does not raise a genuine issue of material fact to withstand summary judgment.
2. Harassment
The FEHA prohibits employers from harassing an employee based on race, sex or other specified grounds. See Cal. Gov't Code § 12940(h); see also Etter v. Veriflo Corp., 67 Cal.App.4th 457, 464, 79 Cal.Rptr.2d 33 (1998). Harassment consists of conduct "outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives." Janken v. GM Hughes Elec., 46 Cal.App.4th 55, 63, 53 Cal.Rptr.2d 741 (1996). Harassment includes "[v]erbal harassment, e.g., epithets, derogatory comments, or slurs." Etter, 67 Cal.App.4th at 464 (internal citation and quotation marks omitted). Furthermore, acts of harassment cannot be "occasional, isolated, sporadic, or trivial." Id. at 460.
It is undisputed that at his deposition Plaintiff denied ever having been harassed about his age. (Def.'s Mot. 10:15-11:15; Pl.'s SOF ¶¶ 50, 51; Pl.'s Dep. 50:19-51:17.) Additionally, Peña also "denies ever having heard any statements reflecting age or other improper bias of that nature." (Peña's Dep. 115:17-119:20.) Plaintiff does not provide any other evidence or explanation of his harassment claim and does not refute Defendant's claims in his Opposition. ( See generally Pl.'s Opp'n.) As a result, Plaintiff fails to demonstrate sufficient evidence to raise a genuine issue of material fact concerning his harassment claim.
3. Conclusion
Plaintiff fails to provide any evidence supporting the existence of a genuine issue of material fact as to his retaliation and harassment claims. Accordingly, Defendant's Motion is GRANTED as to Plaintiff's third cause of action for retaliation and harassment.
D. Breach of Implied-In-Fact Agreement
Plaintiff's fourth cause of action alleges that his wrongful termination without good cause is a breach of the Plaintiff's implied-in-fact employment agreement with Exide. (Compl. ¶ 38.) Plaintiff alleges his employment was not "at-will, " and "in light of Plaintiff's subjective understanding that he could not be terminated without cause, combined with the series of salary increases, promotions, bonuses, and [P]laintiff's supervisor's repeated oral assurances of job security so long as the [P]laintiff's performance remained adequate, " Defendant breached the implied-in-fact employment agreement when it terminated Plaintiff without just cause. (Pl.'s Opp'n 12:15-19; Compl. ¶ 38.)
1. Implied-In-Fact Employment Agreement
California law presumes that employment is at-will and terminable at any time without cause by either party. See Cal. Lab. Code § 2922. This presumption, however, may be rebutted if the employee shows facts demonstrating the existence of an express or implied agreement providing that the employee will not be terminated except for good cause. See Kohler v. Ericsson, Inc., 847 F.2d 499, 501 (9th Cir. 1988); see also Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373 (1988). "[T]he existence of an implied contract of employment turns on the intent of the parties." Tonry v. Security Experts, Inc., 20 F.3d 967, 971 (9th Cir. 1994).
Courts examine the "totality of the circumstances" and consider several factors to determine whether an implied-in-fact employment agreement exists. Foley, 47 Cal.3d at 675. The factors to be considered include: (1) the personnel policies or practices of the employer; (2) the employee's longevity of service; (3) actions or communications by the employer reflecting assurances of continued employment; and (4) the practices of the industry in which the employee is engaged. Id. at 680 ( citing Pugh v. See's Candies, Inc., 116 Cal.App.3d 311, 327 (Cal.Ct.App. 1981), overruled in part on other grounds by Guz, 24 Cal.4th at 351).
Plaintiff alleges the implied contract between himself and Defendant Exide arose over his course of employment with Exide. Specifically, Plaintiff asserts that his "length of service alone for 33 years to Exide, various promotions and salary increase[s], and repeated assurances of job security contingent upon [ ] satisfactory work performance completely rebuts the statutory presumption of at-will employment." (Pl.'s Opp'n 11:23-25.) Defendant contends that "Plaintiff cannot present actual, credible evidence (because there is none) that Exide had policies or gave assurances that he could only be fired for good cause, " and even if he could, Plaintiff still could not prevail "because [Exide's] decision to terminate was made in good faith and based on an adequate investigation, and because that investigation showed ample good cause for termination." (Def.'s Mot. 21:24-22:4 (emphasis in original).)
First, as to the personnel policies or practices of Exide regarding union members, Plaintiff explains that before he was a supervisor, he was part of the Steelworkers Union. (Pl.'s Dep. 75:15-76:3.) According to Plaintiff, the collective bargaining agreement for members of the Steelworkers Union provided that member employees could only be discharged for good cause. ( Id. 75:7-13.) However, Plaintiff offers no direct evidence as to what Exide's policy is for employees who are supervisors and not members of the Steelworkers Union.
When Plaintiff was promoted to his supervisory role in 1992, Plaintiff admits that he was told that he was no longer covered by the union labor agreement and that he "now belonged to the company." ( Id. 75:21-24.) Specifically, Plaintiff testified at his deposition as follows:
Q: When you became a supervisor, you understood that the provision requiring just cause no longer applied to you; correct?
A: Yes. Yes. Something like that, yes. A lady explained it to me, a lady who was in charge at that time. Her name was Margaret.
Q: What did Margaret explain to you?
A: That once I became a supervisor, it wasn't the same contract and that now I belonged to the company.
( Id. 75:18-24.) Defendant contends this admission demonstrates that Plaintiff understood that he was an at-will employee and Plaintiff was aware that he was "no longer protected by the just cause' protection of the collective bargaining agreement." (Def.'s Mot. 21:8-12.)
Plaintiff, however, points to a later part of his deposition, where his counsel reframed the inquiry as follows: you could be terminated without a reason or let go without a reason?
A: No.
Q: Okay. And was it your understanding that once you became a supervisor, you could be terminated without any reason or let go without any reason?
[Objection Omitted]
A: No, they never told me that, that they would be able to fire me without reason.
(Pl.'s Dep. 103:18-104:4.) Plaintiff asserts that this portion of his deposition supports his claim that he had a "subjective understanding that he could not be terminated without cause." (Pl.'s Opp'n 12:16-17.) Clearly, Plaintiff's counsel rephrased the questions to temper Plaintiff's prior admissions. Because Plaintiff's testimony is not clear, the Court cannot conclude that he has admitted his employment was at-will.
Second, Plaintiff asserts that his 33 years of service to Exide, "various promotions and salary increase[s], and repeated assurances of job security contingent upon [ ] satisfactory work performance, " rebut the at-will presumption. (Pl.'s Opp'n 11:23-26.) Plaintiff further adds that he received several raises and a promotion in 1992 during his career at Exide. (Pl.'s Decl. ¶ 14.) Longevity of service is a favorable fact for Plaintiff and relevant to the second factor in Foley .
Third, Plaintiff and Peña both declare that Peña provided assurances of continued employment when Peña told Plaintiff at each annual review, "if [Plaintiff's] work continued to be satisfactory, [he] would be able to continue to work at Exide." (Pl.'s Decl. ¶ 13; Peña's Decl. ¶ 10.) The questions of whether Plaintiff's and Peña's statements are credible and if they suffice (whether Peña had the ability and authority to bind Exide) to establish an implied-in-fact employment agreement are issues that cannot be resolved in the context of this Motion.
Finally, the parties do not provide the Court with any evidence reflecting practices in the industry in which the employee is engaged.
The Court need not determine whether a triable issue of material fact exists as to an implied-in-fact contract. Assuming a dispute exists, summary judgment must nevertheless be granted because the evidence demonstrates that Plaintiff was terminated based on Defendant's good faith belief of good cause. See Kohler, 847 F.2d at 501.
2. Good Cause for Termination
Defendant asserts that, even if Plaintiff could show he had an implied-in-fact employment contract requiring just cause for termination, Defendant had good cause to terminate Plaintiff based on its good faith investigation, further precluding Plaintiff from prevailing on his breach of implied-in-fact contract claim. (Def.'s Mot. 21:26-22:4.)
Assuming the existence of an implied-in-fact employment contract, under California law, good cause is found when an employee is terminated for "fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual. A reasoned conclusion, in short, supported by substantial evidence gathered through an adequate investigation." Cotran v. Rollins Hudig Hall Int'l, 17 Cal.4th 93, 108, 69 Cal.Rptr.2d 900, 948 P.2d 412 (1998).
The evidence in the record demonstrates that Exide's investigation meets this good cause standard. Defendant contends that Exide had good cause to terminate Plaintiff because he "engaged in conduct meriting discharge." (Def.'s Mot. 23:6.) Mainly, Defendant's decision to terminate Plaintiff was based on the "result[s] of investigation findings that [Plaintiff] refused to authorize medical treatment for [ ] Villavicencio when he dislocated his shoulder while working, did not timely report the injury, did not properly report the injury [for] OSHA purposes, and took proactive steps to cover up the injury, including clocking [ ] Villavicencio in and out on days he was absent due to injury." (Gault's Aff. ¶ 18.)
While Plaintiff disputes he violated Exide's policies, including the claim that he refused to authorize medical treatment for Villavicencio the day he was injured, that he failed to report the injury in a timely and proper manner, and that he proactively sought to cover up the injury, under California law, Exide is not required to definitively prove that Plaintiff actually committed all of the misconduct to establish good cause for termination. See Silva v. Lucky Stores, Inc., 65 Cal.App.4th 256, 76 Cal.Rptr.2d 382, 385 (Cal.Ct.App. 1998) ("Employers who fire employees for misconduct are not required to prove that the alleged misconduct actually occurred. Rather, the employer must show that it reasonably believed that the alleged misconduct took place and otherwise acted fairly."). The undisputed evidence establishes that Defendant's management officials interviewed numerous witnesses, including Villavicencio (the injured employee), Plaintiff, Peña, and other employees, before a group of management officials came to a joint decision to terminate Plaintiff and Peña based on the findings supporting Defendant's conclusion that Plaintiff and Peña violated established company policies. (Def.'s Mot. 22:21-22; Gault's Aff. ¶¶ 10, 12, 13, 14, 15, 16, 17.) The evidence establishes that Defendant reasonably believed that Plaintiff engaged in egregious misconduct establishing good cause for Plaintiff's termination.
Additionally, Gault maintains that "Exide's [P]lant [R]ules list clocking another employee in and out as one of the [P]lant's Intolerable Offenses' that is grounds for immediate dismissal.'" (Gault's Aff. ¶ 15 (14).) The undisputed facts indicate that Plaintiff "clocked [ ] Villavicencio in and out as if he had worked a full 8-hour day, " (Pl.'s SOF ¶ 42 (11)) and "the [P]lant [R]ules flatly prohibit anyone from clocking another employee in and out, the punishment for which is immediate dismissal, " ( Id. ¶ 42 (12)). Plaintiff disputes these two facts, "only to the extent that it infers that Plaintiff did not receive orders from Peña (the highest manager/supervisor at the Vernon, California Plant) to credit [ ] Villavicencio for days off for his injury. Peña [Decl.] ¶ 15." ( Id. ) Plaintiff's dispute is irrelevant as the issue here is not whether Peña authorized Plaintiff to violate company policy by clocking Villavicencio in or out: it is whether he engaged in prohibited behavior at all. See Unt v. Aerospace Cor., 765 F.2d 1440, 1446 (9th Cir. 1985) ("An employee is not protected by Title VII when he violates legitimate company rules, knowingly disobeys company orders, disrupts the work environment of his employer, or willfully interferes with the attainment of the employer's goals."). Even if Peña authorized Plaintiff to clock Villavicencio in and out, his conduct was a clear violation of Exide's policy. Violation of company policy constitutes good cause to terminate employees. Plaintiff's violation of Exide's policy against clocking another employee in and out is an undisputed violation that further constitutes good cause for Plaintiff's termination.
Plaintiff stated that Peña's order to credit Villavicencio hours did not seem "unusual" to Plaintiff "since Mr. Peña had day-to-day management authority at the Plant." (Pl.'s Decl. ¶ 19.) Plaintiff, however, should not have assumed that Peña could order him to override Exide policy.
Plaintiff also challenges the adequacy of the investigation and claims that Defendant did not provide him with an opportunity to respond during the investigation. See Cotran, 17 Cal.4th at 108 (explaining that an investigation is considered adequate if there is substantial evidence gathered, notice is given to the employee concerning the alleged conduct, and the employee is given a chance to respond to the allegations). Plaintiff claims that Gault made the decision to terminate Plaintiff before interviewing all of the witnesses and he was not given a chance to explain his side of the story. (Pl.'s Opp'n 3:20-21; Pl.'s Decl. ¶ 21.) Yet, these allegations are unsubstantiated: Plaintiff does not put forth any evidence to demonstrate that Defendant's investigation was conducted in bad faith. In fact, Defendant provides evidence to the contrary as Gault declares that his investigatory interview with Plaintiff lasted approximately 45 minutes, Plaintiff had notice of the claimed misconduct and was given an opportunity to respond, and "there is nothing to suggest [Plaintiff] was denied the opportunity to say anything he wanted to say." (Gault's Aff. ¶ 13; Def.'s Mot. 22:23-25.) Upon review of the evidence and arguments, the Court finds that 45 minutes was sufficient time for Plaintiff to have a "fair opportunity... to present his position." Cotran, 17 Cal.4th at 108. Consequently, Plaintiff fails to offer evidence establishing a genuine issue of material fact concerning whether Exide acted in good faith when it decided to terminate Plaintiff for violating Exide's policies.
Therefore, even assuming the existence of an implied-in-fact contract, there are no triable issues of material fact with respect to Defendant's good cause for Plaintiff's termination. Accordingly, Defendant's Motion is GRANTED as to Plaintiff's fourth cause of action for breach of implied-in-fact agreement.
E. Intentional Infliction of Emotional Distress
Plaintiff's fifth and last cause of action claims he suffered emotional distress due to "unlawful harassment, retaliation, and termination based on age and disability discrimination, " and Defendant's conduct constituted "extreme and outrageous acts which are not to be tolerated in a civilized society." (Compl. ¶ 46.) Plaintiff further alleges that Defendant "knew [its] unlawful conduct would cause and did cause Plaintiff to suffer extreme emotional distress, " and Defendant "acted with malice and oppression, with conscious disregard for Plaintiff's right[s]." (Compl. ¶¶ 46, 47.)
A plaintiff may assert a claim for intentional infliction of emotional distress when there is "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Hughes v. Pair, 46 Cal.4th 1035, 1050, 209 P.3d 963, 95 Cal.Rptr.3d 696 (2009) (internal citations and quotation marks omitted). "Outrageous" is defined as conduct that is so "extreme as to exceed all bounds of that usually tolerated in a civilized community, " and the defendant's conduct must also be "intended to inflict injury or engaged in with the realization that injury will result." Id. at 1051. "Summary judgment is proper if a claim cannot reasonably be regarded as so extreme and outrageous as to permit recovery." King v. AC&R Adver., 65 F.3d 764, 770 (9th Cir. 1995) (internal quotation marks omitted).
Defendant contends that Plaintiff's claim for intentional infliction of emotional distress fails because Plaintiff has not demonstrated that Defendant engaged in extreme or outrageous conduct. (Def.'s Mot. 23:23-25.) Plaintiff's Opposition alleges that "Plaintiff has in fact suffered emotional distress as a result of Defendant['s] conduct." (Pl.'s Opp'n 15:3-5.) In Plaintiff's Declaration, Plaintiff's states that he "suffered extreme anxiety, stress, and depression... focuses on his termination numerous times a day, and also often lose[s] sleep." (Pl.'s Decl. ¶ 24.)
In regard to personnel management matters, including terminating an employee, "[a] simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged." Janken, 46 Cal.App.4th at 79-80. Personnel management decisions cannot be considered "extreme or outrageous" for the purposes of claiming intentional infliction of emotional distress. Id. "Terminating an employee for improper or discriminatory reasons, like many other adverse personnel management decisions, is insufficiently extreme or outrageous to give rise to a claim for intentional infliction of emotional distress." Walker v. Boeing Corp., 218 F.Supp.2d 1177, 1190 (C.D. Cal. 2002). Here, Defendant's alleged conduct terminating Plaintiff is a personnel management decision and, as a result, is insufficient to support a claim for intentional infliction of emotional distress, even if improper motivation, such as age or disability discrimination, is alleged.
Finally, in regard to the intentional infliction of emotional distress claim arising from the retaliation and unlawful harassment allegations, Plaintiff cannot maintain such a claim because Plaintiff's retaliation and harassment claims do not survive summary judgment.
Accordingly, Defendant's Motion is GRANTED as to Plaintiff's fifth cause of action for intentional infliction of emotional distress.
F. Plaintiff's Evidentiary Objections
Plaintiff makes several objections to the Affidavit of Robert Gault, which was filed by Defendant in support of and as an exhibit to Defendant's Motion. (Pl.'s Opp'n, Ex. 3; Def.'s Mot., Ex. D.) The Court finds that the evidentiary objections lack merit. The Court, therefore, overrules all of Plaintiff's objections.
Defendant's Opposition to Plaintiff's Evidentiary Objections to the Affidavit of Robert Gault was filed on November 17, 2010. ( See generally Def.'s Opp'n to Pl.'s Ev. Ob. to the Aff. of Robert Gault.)
G. RULING
For the foregoing reasons, Defendant Exide's Motion for Summary Judgment is GRANTED. On the Court's own motion, Defendant Gault is dismissed pursuant to Federal Rules of Civil Procedure, Rule 41(a)(2).
IT IS SO ORDERED.