Cynthia Lawler v. Mountblanc North America, LLC, et al

Filing

FILED OPINION (RONALD M. GOULD, MILAN D. SMITH, JR. and KEVIN THOMAS DUFFY) AFFIRMED. Judge: KTD Authoring. FILED AND ENTERED JUDGMENT. [8470363]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CYNTHIA LAWLER,
Plaintiff-Appellant,

No. 11-16206

v.

D.C. No.
10-cv-01131LKH

MONTBLANC NORTH AMERICA ,
LLC, and JAN -PATRICK SCHMITZ,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted
November 7, 2012—San Francisco, California
Filed January 11, 2013
Before: Ronald M. Gould and Milan D. Smith, Jr., Circuit
Judges, and Kevin Thomas Duffy, District Judge.*
Opinion by Judge Duffy

*

The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.

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SUMMARY**

California Law
The panel affirmed the district court’s summary judgment
in favor of an employer based on the former employee’s
failure to present a genuine issue of material fact as to each of
her four claims under California state law.
The panel held that plaintiff failed to present a genuine
issue of material fact as to her claims for: disability
discrimination under the California Fair Employment and
Housing Act; retaliation under the Act; harassment under the
Act; and intentional infliction of emotional distress under
California state tort law.

COUNSEL
Michael J. Korda, Kraw and Kraw, Mountain View,
California, for Plaintiff-Appellant.
George H. Parsells, III, and Vimal K. Shah, McElroy,
Deutsch, Mulvaney & Carpenter, LLC, Morristown, New
Jersey, for Defendants-Appellees.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
DUFFY, District Judge:
In this diversity action, Plaintiff-Appellant Cynthia
Lawler (“Lawler”) appeals the district court’s grant of
summary judgment in favor of Defendants-Appellees
Montblanc North America, LLC (“Montblanc”) and its
President and Chief Executive Officer Jan-Patrick Schmitz
(“Schmitz”) (collectively, “Defendants”), on each of her four
claims: (1) disability discrimination raised against Montblanc
under the California Fair Employment and Housing Act
(“FEHA”); (2) retaliation raised against Montblanc under
FEHA; (3) harassment raised against Defendants under
FEHA; and (4) intentional infliction of emotional distress
raised against Defendants under California state tort law.
Because Lawler fails to present a genuine issue of
material fact as to each of her four claims, we affirm.
I. BACKGROUND1
Montblanc makes fine writing instruments, jewelry,
timepieces, and other luxury products that it sells wholesale
and in boutique retail stores. From September 2001 through
October 2009, Montblanc employed Lawler as a manager at
its Valley Fair Shopping Center boutique retail store in Santa
Clara, California (“Store”). At the time of Lawler’s

1

The court accepts Lawler’s version of the disputed facts as presented
in her deposition testimony and appellate briefs, and draws all reasonable
inferences in her favor. See Szajer v. City of Los Angeles, 632 F.3d 607,
610 (9th Cir. 2011).

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termination, the Store employed four full-time employees,
including Lawler, and two part-time employees.
Lawler’s duties as a manager included, among other
things, hiring, training, and supervising sales staff; overseeing
and developing customer relations; administrating stocking
and inventory; cleaning; creating store displays; and
preparing sales reports. Lawler could only perform her job
duties in the store.
Lawler testified that each year, from the Friday after
Thanksgiving until January 2 (the “Holiday Season”), she
worked increasing hours beginning with sixty hours per week
and ending with seventy hours per week. The Store makes
one-third of its annual sales during the Holiday Season, and
Montblanc maintains a policy prohibiting employee vacations
during that period.
On June 30, 2009, Lawler’s rheumatologist, Dr.
Neelakshi Patel (“Dr. Patel”), diagnosed her with a chronic
condition known as psoriatic arthritis and recommended that
Lawler work a reduced workweek of twenty hours “due to
medical reasons.” On July 23, Lawler e-mailed Teresa Eyre
(“Eyre”), Montblanc’s Regional Manager in Las Vegas,
Nevada, concerning her need for reduced working hours. The
next day, Lawler telephoned Mary Gorman (“Gorman”),
Montblanc’s Director of Human Resources to request a
reduced work week of twenty-five hours. Gorman stated that
she would send a letter to Dr. Patel requesting information
that would allow Montblanc to assess whether it could
accommodate Lawler’s request. On July 29, Gorman sent an
e-mail and letter to Lawler stating in relevant part:

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As you know, the nature of your position
as Boutique Manager makes it essential that
you personally be present at the store . . . .
Thus, Boutique Managers typically are
present in the store at least 40 hours per week.
. . . Kindly have your treating doctor provide
us, in writing, details of the following: (i) the
nature, severity and duration of your
impairment; (ii) the activities the impairment
limits; (iii) the extent to which the impairment
limits your ability to perform those activities;
and (iv) what, if any, accommodation can be
provided that would enable you to perform the
essential functions of your position.
On August 4, Lawler fractured the third and fourth toes
on one of her feet during a fall in her bedroom. The fall was
an “indirect consequence” of her condition, and occurred
when Lawler “turned to grab [her] purse to go to work and
[her] hip gave out from the arthritis.” On August 5, a
podiatrist set her foot and placed it in an orthopedic shoe.
The podiatrist certified that Lawler could return to work on
September 2, 2009.
After her examination, Lawler
telephoned Gorman to inform her of the accident and of
Lawler’s need for temporary disability leave. Gorman asked
Lawler to fax her documentation regarding the injury for the
purpose of notifying Montblanc’s disability carrier. Not
having a fax machine, Lawler drove by herself from the
podiatrist’s office to the Store and used the office fax
machine.
While Lawler was in the Store, Schmitz and Mike
Giannattasio (“Giannattasio”), Montblanc’s Vice President of

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Retail, entered on a routine inspection visit. Upon finding
Lawler in the back office, Schmitz asked Lawler in an
“abrupt, brisk” manner why she was not dressed in work
attire, to which Lawler replied that she “was off work on
disability.” Schmitz then informed Lawler that he and
Giannattasio were going to walk around the mall to survey
the “competition.” When Lawler informed Schmitz that she
would not be in the office when they returned, Schmitz said
to her in an “intimidating,” “abrupt,” and “gruff” tone, “We
will talk when I get back.”
After thirty or forty minutes, Schmitz and Giannattasio
returned to the Store and approached Lawler in her office.
Schmitz said that they “needed to take a look around,” and he
“stood by the door and stared at [Lawler] until [she] got up to
go out and look around.” During their walk around the Store,
Schmitz “herded the group of [employees] around the
boutique” and “started to get very, very angry” when he
noticed that the newest eyewear products were not on display.
Lawler explained that the display cases were inadequately
sized to properly display the merchandise, which she
demonstrated to Schmitz by physically measuring a display
case. Schmitz “just got mad that [Lawler] was confronting
him.”
Schmitz then “herded” the group toward another display,
during which time an associate stepped on Lawler’s broken
foot. Giannattasio and another employee offered Lawler a
seat while Schmitz finished examining the Store. Schmitz
then asked Lawler to provide him with “specifics on . . . the
races of [Montblanc’s] customers, the racial background of
the geographic[] area of San Jose, [and for a] list of chambers
of commerce” by the following Monday. Lawler reminded
him that she “was not working, [and] could not do it.”

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Schmitz said, “[Y]ou will do it or else.” Lawler agreed to email the information from home. Schmitz and Giannattasio
then accompanied Lawler to a back room where Schmitz
“told [her] that he didn’t like the way [the] repair parts were
being stored” and “questioned [her] about [the] signature
engraving service.” Afterward, Schmitz and Giannattasio left
the Store.
Montblanc maintains security cameras at their boutique
stores that capture video but not audio. Per Montblanc’s
regular practice, the security video capturing the events of
August 5, 2009, was automatically overwritten approximately
thirty days after it was recorded.
Upon returning home, Lawler telephoned Eyre and
informed her of Schmitz’s visit and of her concern about
completing the assignments. Eyre told her not to worry about
the paperwork.
On August 11, Lawler sent a letter to Gorman expressing
her concerns about Schmitz’s visit to the Store. Specifically,
Lawler complained that: (1) Schmitz “made it very clear that
in spite of [her] disability, he expected [her] to stay and
work” while he walked around the mall; (2) she “felt
extremely intimidated and felt that [she] had no choice but to
stay in spite of the fact that [she] was disabled and in pain”;
(3) a coworker stepped on her broken foot while she was
walking around the sales floor at Schmitz’s direction; and (4)
Schmitz “gave [her] several assignments that he told [her]
personally to take care of with deadlines that were within a
week, again ignoring [her] disability.”
On August 13, Lawler telephoned Gorman to discuss the
August 11 letter. During the conversation, Gorman told

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Lawler that she did not want to show Schmitz the letter and
that Lawler should delegate the assigned work to the assistant
manager to avoid “more problems.” Lawler insisted that
Gorman process the complaint. Gorman did not interview
any Store employees regarding Schmitz’s visit and never
inquired about the August 5 security video.
On September 2, Dr. Patel drafted a letter recommending
that Lawler take an extended leave of absence until January
5, 2010, “to avoid further flare-ups” related to her psoriatic
arthritis. On September 4, Lawler e-mailed Gorman and
attached Dr. Patel’s September 2 letter. On September 10,
Gorman sent a letter to Dr. Patel listing Lawler’s job duties
and asking whether Montblanc could provide any reasonable
accommodation “that would permit [Lawler] to resume being
regularly present at the store and performing the duties of her
position.” The letter stated that Lawler’s duties “do not
involve significant strenuous lifting or other physical
activity,” and asked “when [Lawler] would be able to resume
her regular duties.” On October 6, Dr. Patel faxed a note to
Gorman stating that “[t]he patient’s status has not changed,
therefore the recommendation that she be off until Jan. 5th
2010 has not changed.”
On October 13, Gorman telephoned Lawler and told her
that Montblanc was terminating her employment effective
October 31, 2009. On October 14, Gorman sent a letter to
Lawler memorializing the October 13 conversation. The
letter stated in relevant part:
As we advised you in our email of July 29,
2009, it is essential for a boutique manager to
be in regular attendance at the boutique.
Nevertheless, you have been absent since

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September 5, 2009, and your doctor, Dr.
Neelakshi Patel, has advised that you are
unable to return to work until early January
2010. Because we must have a manager in
the Valley Fair boutique, we must replace
you.
In the letter, Montblanc offered Lawler a severance payment
of $17,405 contingent upon her execution of a separation
agreement and general release. Lawler did not accept the
severance offer.
In response to the vacancy, Montblanc assigned Eyre as
the “de facto” manager of the Store and had the assistant
manager perform managerial duties. Montblanc hired a new
manager in May 2010.
Lawler subsequently filed a complaint with the California
Department of Fair Employment and Housing against
Montblanc and Schmitz. On December 2, 2009, the
Department issued Lawler a Notice of Case Closure and
Right-To-Sue Notice. On February 16, 2010, Lawler filed a
complaint against Defendants in the Superior Court of
California, which Defendants then removed to federal court.
Lawler testified at her November 2010 deposition that she
had been unemployed since October 2009, had not applied for
any positions, or made any efforts to secure employment.
Lawler applied for and exhausted Montblanc-provided and
State-provided disability benefits between September 2009
and September 2010 due to her inability to work. In
September 2010, Lawler applied for Social Security disability
benefits.

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On April 15, 2011, the district court granted Defendants’
summary judgment motion. Lawler timely appealed.
II. STANDARD OF REVIEW
This court reviews de novo a district court’s grant of
summary judgment, drawing all reasonable inferences in
favor of the non-moving party. Szajer, 632 F.3d at 610.
Summary judgment is appropriate when there exists no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(c); Adickes v. S. H. Kress & Co., 398 U.S. 144, 157
(1970).
III.

DISCUSSION

Lawler appeals the district court’s grant of Defendants’
summary judgment motion as to each of her four causes of
action.
A. Disability Discrimination (Cal. Gov’t Code
§ 12940(a))
Section 12940(a) of FEHA prohibits an employer from
discharging a physically disabled employee because of that
employee’s physical disability. An employer may, however,
lawfully discharge an employee who “is unable to perform
his or her essential duties . . . even with reasonable
accommodations.” Cal. Gov’t Code § 12940(a)(1).2

2

Lawler did not assert an FEHA claim against Montblanc for failing “to
make reasonable accommodation for the known physical . . . disability of
an applicant or employee,” § 12940(m), or for failing to “engage in a
timely, good faith, interactive process with the employee or applicant to

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The California Supreme Court has adopted the tripartite
burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973), to
analyze disparate treatment claims. See Guz v. Bechtel Nat’l,
Inc., 8 P.3d 1089, 1113 (Cal. 2000). Under McDonnell
Douglas, the plaintiff has the initial burden of establishing a
prima facie case of discrimination. Id. Once a prima facie
case is shown, a presumption of discrimination arises and the
burden shifts to the defendant to show that the adverse
employment action was taken for a legitimate,
nondiscriminatory reason. Id. at 1114. Stating a legitimate,
nondiscriminatory reason negates the presumption of
discrimination and shifts the burden back to the plaintiff to
demonstrate that the proffered reason is mere pretext for
discrimination. Id.
When an employer moves for summary judgment,
however, “the burden is reversed . . . because the defendant
who seeks summary judgment bears the initial burden.”
Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d
728, 745 (9th Cir. 2011) (quotation omitted). “Thus, [t]o
prevail on summary judgment, [the employer is] required to
show either that (1) plaintiff could not establish one of the
elements of [the] FEHA claim or (2) there was a legitimate,
nondiscriminatory reason for its decision to terminate
plaintiff’s employment.” Id. (quotation omitted) (alterations
in original). If the employer meets its burden, the discharged
employee must demonstrate either “that the defendant’s
showing was in fact insufficient or . . . that there was a triable

determine effective reasonable accommodations,” § 12490(n). Lawler
also did not claim a violation under the Americans with Disabilities Act
of 1990, 42 U.S.C. §§ 12101–12213.

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issue of fact material to the defendant’s showing.” Id. at 746
(quotation omitted) (omission in original).
To show a prima facie case of disability discrimination
under FEHA, a plaintiff must show that: (1) she is a member
of a protected class; (2) she was performing competently in
the position she held; (3) she suffered an adverse employment
action, such as termination; and (4) some other circumstances
that suggest a discriminatory motive. Zeinali v. Raytheon
Co., 636 F.3d 544, 552 (9th Cir. 2011) (citing Guz, 8 P.3d at
1113).
Lawler fails to establish a prima facie case because she
was not competently performing her position as store
manager.
California state courts analyze whether an employee is
competently performing a position by determining whether
she can perform the “essential duties” of her position with or
without reasonable accommodation. Green v. State, 165 P.3d
118, 122–23 (Cal. 2007). In Green, the California Supreme
Court held that
by its terms, section 12940 makes it clear that
drawing distinctions on the basis of physical
or mental disability is not forbidden
discrimination in itself. Rather, drawing these
distinctions is prohibited only if the adverse
employment action occurs because of a
disability and the disability would not prevent
the employee from performing the essential
duties of the job, at least not with reasonable
accommodation. Therefore, in order to
establish that a defendant employer has

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discriminated on the basis of disability in
violation of FEHA, the plaintiff employee
bears the burden of proving he or she was able
to do the job, with or without reasonable
accommodation.
Id. at 123 (emphases in original); see also § 12940(a)(1).
Montblanc properly asserts that Lawler cannot
competently perform her job duties as manager. Here, the
essential duties of a boutique manager are undisputed.
Lawler testified that a manager is responsible for hiring,
training, and supervising sales staff; overseeing and
developing customer relations; administrating stocking and
inventory; cleaning; creating store displays; and preparing
sales reports. She further stated that the duties of a manager
can only be performed in the store.
Lawler, however, offers no factual support showing she
can perform any job duty of a boutique manager, regardless
of the accommodation. Rather, she admitted that her
disability makes it impossible for her to fulfill the duties of
her position and that she has been unemployed since October
2009, has not applied for any positions, has made no effort to
secure employment, and has exhausted her disability benefits.
Lawler contends that Montblanc “cannot argue that it met
its burden of showing that Plaintiff was not able to do the job
with or without reasonable accommodation” because it
denied her requests for reduced hours and a five-month leave
of absence. This argument ignores the holding in Green that
“the plaintiff employee bears the burden of proving he or she
was able to do the job, with or without reasonable
accommodation.” 165 P.3d at 123; see also Kennedy v.

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Applause, Inc., 90 F.3d 1477, 1482 (9th Cir. 1996) (holding
employee who was “totally disabled” could not present any
“genuine issue that she could have performed her job with the
proposed, or any other, accommodation” under the
Americans with Disabilities Act). Here, Montblanc has
shown that Lawler cannot perform the essential functions of
store manager by offering her admissions that her disability
prevents her from performing any work. Lawler, in response,
offers no submission establishing a triable issue of fact.
Summary judgment on this claim is therefore proper.
B. Retaliation (Cal. Gov’t Code § 12940(h))
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).
California courts also employ the McDonnell Douglas
burden-shifting framework in analyzing retaliation claims.
Yanowitz v. L’Oreal USA, Inc.,116 P.3d 1123, 1130 (Cal.
2005). On appeal, the parties contest only whether
Montblanc provided a legitimate, nondiscriminatory reason
and whether that reason is pretext.
i. Whether Montblanc proffered a legitimate
nondiscriminatory reason
Montblanc submits that it terminated Lawler’s
employment because she could not perform her job duties as
a boutique manager.

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In evaluating a legitimate nondiscriminatory reason, “the
ultimate issue is simply whether the employer acted with a
motive to discriminate illegally. Thus, ‘legitimate’ reasons in
this context are reasons that are facially unrelated to
prohibited bias, and which, if true, would thus preclude a
finding of discrimination.” Guz, 8 P.3d at 1115–16
(emphases in original) (internal citation omitted).
In Lucent Technologies, this court held that an employer
proffered a legitimate, nondiscriminatory reason for
terminating a cable installer’s employment because the
employee could not perform the essential functions of the
position. 642 F.3d at 746 (recognizing an employer’s
inability-to-perform defense (citing Cal. Code Regs. tit. 2,
§ 7293.8(b))). Here, Montblanc states the same reason.
Lawler urges the court to reject Montblanc’s proffered
reason because its decision to terminate her employment was
made with knowledge that her absences from work were
disability related. Lawler’s argument is unpersuasive because
the FEHA only requires the reason to be “facially unrelated
to prohibited bias.” Guz, 8 P.3d at 1115–16 (emphasis
removed). Montblanc’s stated reason was based on business
concerns. Montblanc does one-third of its annual business
during the two-month period Lawler was unable to perform
her job duties. Montblanc stated a need for a manager in the
Store, yet Lawler and Dr. Patel provided no indication when,
if ever, Lawler could perform her essential job duties.
Because Montblanc’s stated cause for termination is
“facially unrelated to prohibited bias,” Id., the burden shifts
back to Lawler to prove that the reason is pretext for unlawful
discrimination.

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ii. Whether Montblanc’s proffered reason is
pretext

A plaintiff must offer “specific” and “substantial”
circumstantial evidence to prove pretext in a retaliation claim
under FEHA. Winarto v. Toshiba Am. Elecs. Components,
Inc., 274 F.3d 1276, 1284 (9th Cir. 2001).
Lawler’s arguments in support of her claim of pretext do
not carry her burden. She first asserts that the close temporal
proximity between her filing the complaint on August 11,
2009, and her termination on October 31, 2009, establishes
Montblanc’s retaliatory intent. Lawler next contends that
Montblanc’s true cause for firing her was unlawful retaliation
because it did not hire a new manager until May 2010—seven
months after her termination. While this evidence was
sufficient to establish a prima facie case, Arteaga v. Brink’s,
Inc., 77 Cal. Rptr. 3d 654, 676 (Ct. App. 2008), we hold that
it does not constitute a “substantial” offering sufficient to
ov er co m e M on tbl an c’ s pro ff er ed l egi t imate,
nondiscriminatory reason for terminating her employment.
Because Lawler points to no evidence that would raise a
triable issue of whether Montblanc’s true reason was
discriminatory, we affirm summary judgment on this claim.
C. Harassment (Cal. Gov’t Code § 12940(j))
FEHA prohibits harassment of an employee. Cal. Gov’t
Code § 12940(j)(1). To establish a claim for harassment, a
plaintiff must demonstrate that: (1) she is a member of a
protected group; (2) she was subjected to harassment because
she belonged to this group; and (3) the alleged harassment
was so severe that it created a hostile work environment. See

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Aguilar v. Avis Rent A Car Sys., Inc., 980 P.2d 846, 851 (Cal.
1999). The plaintiff must show a “concerted pattern of
harassment of a repeated, routine or a generalized nature.”
Id. Unlike discrimination claims, harassment “consists of
actions outside the scope of job duties which are not of a type
necessary to business and personnel management.” Reno v.
Baird, 957 P.2d 1333, 1337 (Cal. 1998); see also Janken v.
GM Hughes Elecs., 53 Cal. Rptr. 2d 741, 746 (Ct. App.
1996). For example, “commonly necessary personnel
management actions such as hiring and firing, job or project
assignments, . . . promotion or demotion, [and] performance
evaluations, . . . do not come within the meaning of
harassment.” Reno, 957 P.2d at 1336 (quotation omitted).
Here, Lawler asserts a harassment claim based on
Schmitz’s conduct during his August 5, 2009 store visit.
Lawler gave deposition testimony that Schmitz questioned
her appearance, criticized the display of merchandise,
instructed her to perform work-related assignments, and
disagreed with the way she stored repair parts. Schmitz’s
alleged conduct relates to business operations and, more
specifically, to Lawler’s position as a manager. Such conduct
does not constitute harassment under the FEHA. See id.
Further, even if Schmitz’s conduct was unrelated to business
and personnel management, a single incidence of the “gruff,”
“abrupt,” and “intimidating” behavior Lawler described is not
sufficiently severe to constitute a hostile working
environment. See Aguilar, 980 P.2d at 851; see also Lyle v.
Warner Bros. Television Prods., 132 P.3d 211, 223 (Cal.
2006) (“With respect to the pervasiveness of harassment,
courts have held an employee generally cannot recover for
harassment that is occasional, isolated, sporadic, or trivial
. . . .”).

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Finally, Lawler argues that the district court abused its
discretion by declining to draw a negative inference of
discrimination against Defendants because they “willfully”
destroyed the August 5, 2009 security tape capturing the
exchange between Schmitz and Lawler. Med. Lab. Mgmt.
Consultants v. Am. Broad. Cos., 306 F.3d 806, 824 (9th Cir.
2002). The district court, however, accepted Lawler’s
version of the August 5, 2009 store visit as true in making its
determination. Lawler’s spoliation argument is therefore
meritless.
D. Intentional Infliction of Emotional Distress
California recognizes a cause of action for intentional
infliction of emotional distress (“IIED”) 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, 209 P.3d
963, 976 (Cal. 2009) (quotation omitted). A defendant’s
conduct is “outrageous” when it is so “extreme as to exceed
all bounds of that usually tolerated in a civilized community.”
Id. (quoting Potter v. Firestone Tire & Rubber Co., 863 P.2d
795, 819 (Cal. 1993)). “Liability for intentional infliction of
emotional distress does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other
trivialities.” Id. (internal quotation omitted).
Here, Schmitz’s “gruff,” “abrupt,” and “intimidating”
conduct cannot be characterized as exceeding all bounds of
that tolerated in a civilized community. His conduct and
criticisms relate to the Store’s business operations and

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Lawler’s performance as a manager. While Schmitz may
have inconsiderately and insensitively communicated his
dissatisfaction of Lawler’s managerial performance, this is
not conduct from which California tort law protects
employees. See Schneider v. TRW, Inc., 938 F.2d 986,
992–93 (9th Cir. 1991) (affirming summary judgment against
plaintiff’s IIED claim where her supervisor “screamed and
yelled in the process of criticizing her performance,
threatened to throw her out of the department and made
gestures she interpreted as threatening”); Janken, 53 Cal.
Rptr. 2d at 756 (dismissing IIED claim where allegations only
involved criticism of work performance and management of
personnel).
Lawler’s alleged emotional distress is not “severe.”
“Severe emotional distress means ‘emotional distress of such
substantial quality or enduring quality that no reasonable
[person] in civilized society should be expected to endure it.’”
Hughes, 209 P.3d at 976 (quoting Potter, 863 P.2d at 821)
(alteration in original). Lawler testified that her emotional
injuries manifest as “[a]nxiety, sleeplessness, upset stomach,
[and] sometimes muscle twitches.” Clearly, these injuries
alone do not rise to the level of “severe.” See id. at 976–77
(holding plaintiff’s asserted “discomfort, worry, anxiety,
upset stomach, concern, and agitation” resulting from
defendant’s comments made to her on the telephone and at
her place of business were not sufficiently “severe” for IIED
claim).
Finally, for the reasons stated above, we do not accept
Lawler’s argument that Defendants’ failure to preserve the

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LAWLER V . MONTBLANC NORTH AMERICA , LLC

security tape capturing Schmitz’s conduct compels the court
to draw an adverse inference against them.3
IV.

CONCLUSION

For the foregoing reasons, we affirm the district court’s
order granting summary judgment to Defendants on each of
Lawler’s claims.
AFFIRMED.

3

Because we affirm the district court’s grant of Defendants’ summary
judgment motion on other grounds, we do not address Defendants’
argument that Lawler’s IIED claim is preempted by California workers’
compensation law.

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