Christopher Landig v. CooperSurgical, Inc. et al

Filing 59

MINUTES OF Motion Hearing held before Judge Christina A. Snyder: The Court GRANTS in part and DENIES in part defendants' motion for summary judgment 43 . The Court GRANTS summary judgment as to plaintiff's fourth, fifth, sixth, and seventh claims. The Court DENIES summary judgment as to plaintiff's first, second, third, eighth, ninth, and tenth claims. Court Reporter: Laura Elias. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

Present: The Honorable 

CHRISTINA A. SNYDER 

Catherine Jeang 

Laura Elias 

N/A 

Attorneys Present for Plaintiffs: 

Tape No.

Attorneys Present for Defendants: 

Mahru Madjidi 

R. David Jacobs 

Deputy Clerk 

Proceedings:  
I.

Court Reporter / Recorder

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (dkt.
43, filed October 5, 2017)

INTRODUCTION

On August 24, 2015, plaintiff Christopher Landig filed the instant action against
CooperSurgical, Inc., Tim Mukand, Bryan Hickman, Joanne Augustine, and Does 1 to
100 in Los Angeles County Superior Court. Dkt. 1 & Ex. 1 (“Compl.”). Plaintiff asserts
the following claims against defendants: (1) age discrimination in violation of the Fair
Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12940 et seq.; (2)
harassment on the basis of age in violation of FEHA; (3) retaliation in violation of
FEHA; (4) failure to promote in violation of FEHA; (5) breach of express oral contract
not to terminate employment without good cause; (6) breach of implied-in-fact contract
not to terminate employment without good cause; (7) negligent hiring, supervision, and
retention; (8) wrongful termination of employment in violation of California public
policy; (9) violation of California Labor Code § 1102.5; and (10) intentional infliction of
emotional distress. Id. On September 22, 2016, CooperSurgical filed an answer, dkt. 1,
and also filed a notice of removal asserting diversity jurisdiction pursuant to 28 U.S.C. §§
1332(a) and 1441, dkt. 1.
On November 14, 2016, the Court issued an order dismissing Mukand and
Augustine from this action without prejudice, finding that the claims against Mukand
were untimely and that plaintiff failed to adequately allege claims against Augustine.
Dkt. 19.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 1 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

On October 5, 2017, CooperSurgical and Hickman (collectively, “defendants”)
filed the instant motion for summary judgment. Dkt. 43 (“MSJ”). Plaintiff filed his
opposition on October 23, 2017, dkt. 47 (“Opp’n), and defendants filed their reply on
October 30, 2017, dkt. 48 (“Reply”).
Having carefully considered the parties arguments, the Court finds and concludes
as follows.
II.

BACKGROUND

The following facts are not meaningfully disputed and are set forth for purposes of
background. Unless otherwise noted, the court references only facts that are
uncontroverted and as to which evidentiary objections have been overruled.1
A.

Plaintiff’s Hiring and Promotion at CooperSurgical

CooperSurgical, based in Connecticut, manufactures and provides medical devices
and procedure-based solutions for women’s healthcare throughout the United States and
Europe. Defendants’ Statement of Uncontroverted Facts (“DSUF”), dkt. 49, at no. 1;
Declaration of Joanne Augustine, dkt. 43-7 (“Augustine Decl.”) ¶ 2. Its clients include
hospitals, doctors, and fertility specialists, among others. Id. Plaintiff was hired as a
certified sales representative for CooperSurgical in November 2006 in the company’s
Surgical Business Unit. Plaintiff’s Statement of Facts (“PSF”), dkt. 47-1, at no. 1; DSUF
at no. 2; Deposition of Christopher Landig (“Landig Depo.”) at 19:-6-20:6 & Ex. 2;
Compl. ¶ 10.
Plaintiff’s offer letter reflected that his employment at CooperSurgical was at will.
DSUF at no. 132; Landig Depo. at 19:6-20:8 & Ex. 2. On or about December 12, 2012,
plaintiff signed an authorization form acknowledging that “my employment relationship
with CooperSurgical is an employment-at-will relationship, that I have the right to
terminate my employment at any time, and that CooperSurgical may terminate our

1

The Court does not rely upon plaintiff’s submission of the Declaration of Giovanni
Boschetti for purposes of its analysis. See Declaration of Giovanni Boschetti, dkt. 47-10.
Accordingly, the Court does not reach defendants’ objections to this declaration, see dkt.
52. Moreover, the Court does not rely upon the Declaration of Steven Denmark,
submitted by plaintiff. See Declaration of Steven Denmark, dkt. 47-9. Likewise, the
Court does not reach defendants’ objections to this declaration.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 2 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

employment relationship at any time, with or without cause and with or without notice.”
DSUF at no. 133; Landig Depo. at 65:14-66:9 & Ex. 6. Plaintiff understood that he was
employed pursuant to an at-will agreement, DSUF at no. 134; Landig Depo. at 20:1621:2, 21:10-13 & Ex. 2, and he was never told otherwise by anyone at CooperSurgical,
DSUF at no. 135; Landig Depo. at 21:3-5. Moreover, plaintiff has not seen any writing
to indicate that his employment at CooperSurgical was not at will. DSUF at no. 137;
Landig Depo. at 21:6-9.
Sales in the United States for CooperSurgical’s Surgical Business Unit are divided
into geographical regions run by Regional Managers. DSUF at no. 3; Declaration of
Greg Azarian, dkt. 43-5 (“Azarian Decl.”) ¶ 4. Territories within each region are
assigned to a single salesperson. DSUF at no. 4; Azarian Decl. ¶ 4. The territories that
salespeople are assigned to are subject to realignment or alteration. PSF at no. 10;
Deposition of Hickman (“Hickman Depo.”) at 129:5-130:19; Landig Decl. ¶ 6.
Plaintiff was the sole representative assigned to the LA Basin territory, which is
part of the Western Region. DSUF at no. 5; Declaration of Bryan Hickman, dkt. 43-9
(“Hickman Decl.”) ¶ 3. Plaintiff worked out of his home in Yorba Linda and also worked
“out in the field.” PSF at no. 2; DSUF at no. 6; Landig Depo. at 15:18-22; 16:7-9;
Landig Decl. ¶ 4. Plaintiff achieved favorable sales numbers in 2010 and 2011. PSF at
no. 3; Landig Decl. ¶ 8 & Ex. 1; Landig Depo. at 80:14-82:6.
In or about 2011, Bryan Hickman became the Regional Manager of the Western
Region, and thereby became plaintiff’s supervisor. DSUF at no. 7; Hickman Decl. ¶ 3.
Hickman replaced plaintiff’s former supervisor, Tim Mukand.2 PSF at no. 5; Landig
Depo. at 28:10-12. Hickman had initial reservations about what he perceived as
plaintiff’s lack of a sense of urgency and planning, but felt that their working relationship
was generally good. DSUF at no. 8; Id. ¶ 5.
In 2011 Hickman assigned parts of plaintiff’s territories to a younger sales
employee, Matthew Kama, who was in his 30s. PSF at no. 9; Hickman Depo. at 140:9                                                            
2

Insofar as plaintiff proffers evidence pertaining to Hickman’s hiring and
replacement of Mukand as Regional Manager, the Court does not deem these facts
material. Plaintiff’s failure to promote claim appears to be limited to the promotion that
plaintiff sought in February 2015, and is not premised on the factual circumstances
surrounding the hiring for this Regional Manager position in 2010. See Opp’n at 20.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 3 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

11, 141:12-16. The realignment of plaintiff’s territories, which went into effect on
November 1, 2011, included reassigning UCLA and Kaiser, two of plaintiff’s most
valuable accounts, to Kama. PSF at no. 10; Hickman Depo. at 129:5-130:19, 140:9-11;
Landig Decl. ¶ 6. Hickman told plaintiff that he took UCLA out of plaintiff’s territories
as part of an effort to create a territory for Kama to be successful. PSF at no. 12; Landig
Depo. at 85:1-13. Kama had missed quota for a year and a half before being assigned
this portion of plaintiff’s territories.3 PSF at no. 13; Landig Depo. at 82:7-25. Once these
territories were realigned, plaintiff’s numbers dropped.4 PSF at no. 14; Landig Depo. ¶
80:14-82:6; Landig Decl. ¶ 7.
In February or March 2012, Hickman promoted plaintiff to Senior Certified Sales
Representative position because Hickman’s superior had an expectation that he would do
so, and because of Hickman’s five direct employees, plaintiff was the only one eligible
for promotion. PSF at no. 15; DSUF at no. 9; Hickman Depo. at 119:4-19, 151:3-23;
Hickman Decl. ¶ 6; Landig Dep. at 66:11-17; 68:3-9; Landig Decl. ¶ 4. In connection
with the promotion, plaintiff received higher commissions. DSUF at no. 10; Landig
Depo. at 67:21-23; Hickman Decl. ¶ 6. At the time of this promotion, plaintiff was 56
years old. DSUF at no. 11; Augustine Decl. ¶ 4(f).
B.

Plaintiff’s Annual and Disciplinary Reviews 2012-2014

On or about June 6, 2012, Hickman delivered a mid-year performance review to
plaintiff. DSUF at no. 12; Landig Depo. 71:21-73:10; 111:17-112:12 & Ex. 8. Plaintiff
believed that the review was accurate. DSUF at no. 13; Landig Depo. at 71:21-73:10;
111:17-112:12 & Ex. 8.

3

Defendants object to this evidence as immaterial, however, it is relevant insofar as
it relates to the issue of discrimination on the basis of plaintiff’s age because it
demonstrates that Hickman reassigned territory to a much younger employee.
4
Defendants object that this mischaracterizes the evidence, arguing that plaintiff’s
pre- and post-alignment performance against quota is not significantly different, citing
plaintiff’s chart he prepared for Azarian attached to Jacobs Decl. ¶ 15 & Ex. 16.
However, the realignment took effect on November 1, 2011, and plaintiff’s chart reflects
an 8.24 percent drop in performance from 2011 to 2012—specifically, his performance in
2011 was 100.24 percent to quota, and in 2012 his performance was 92 percent to quota.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 4 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

On or about September 14, 2012, Hickman issued a disciplinary letter (the
“September 2012 Performance Letter”) to plaintiff notifying him that he was not on track
to meet his quota for the fiscal year ending in October 2012 and setting forth specific
goals and expectations. DSUF at no. 14 & Ex. 9; Landig Depo. 77:8-21, 79:21-80:10;
Hickman Decl. ¶ 7. The parties dispute Hickman’s motivation in issuing the letter,
whether the letter was used as an act of discrimination against plaintiff, and the alleged
events occurring thereafter.
The parties do not dispute the following contents of the September 2012
Performance Letter: (1) plaintiff was at 88.69 percent of his year-to-date quota, DSUF at
no. 15; Landig Depo., 78:1-7 & Ex. 9; Hickman Decl., ¶ 7 & Ex. 9; and (2) the average
territory in the Surgical Business Unit was at 22 percent growth for the year, while
plaintiff’s territory was at 7.8 percent growth, DSUF at no. 16; Landig Depo., 78:8-16 &
Ex. 9. While plaintiff does not dispute the letter’s contents, he implies, without evidence,
that the letter was pretextual and prepared to create a record suggesting inadequate
performance.
One of the goals set forth in the September 2012 Performance Letter was that
plaintiff make at least 95 percent of his quota.5 DSUF at no. 18; Landig Depo. at 78:8-16
& Ex. 9; Hickman Decl., ¶ 7, & Ex. 9. The September 2012 Performance Letter advised
plaintiff that if he did not meet the goals set forth in the letter, his employment could be
terminated. DSUF at no. 20; Landig Depo. at 78:8-16 & Ex. 9; Hickman Decl., ¶ 7 & Ex.
9. Though Augustine—the manager of human resources at CooperSurgical—could not
recall her roll in drafting the language “up to and including termination” in plaintiff’s
letter, Hickman testified that he was the one who wrote the employment termination
language in plaintiff’s performance letter. PSF at no. 18 & Ex. 5; Augustine Depo.
147:8-148:21; Hickman Depo. 162:8-22; Landig Decl. ¶ 10.
Around the same time Hickman issued plaintiff the September 2012 Performance
Letter, he issued one to a younger unidentified employee, approximately in his 30’s,
(hereinafter “Employee E”) who was also not on track to make quota. PSF at no. 17 &
Exs. 3,4; DSUF at no. 22; Hickman Decl., ¶ 8 & Ex. 47; Landig Decl. ¶ 9; Landig Depo.
46:16-48:4. Hickman perceived Employee E as an inexperienced sales representative and
did not feel that he needed as serious a message as plaintiff to motivate him—

5

The parties agree that CooperSurgical Sales Associates operate on a tight curve,
but dispute the percentage that is considered acceptable.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 5 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

accordingly, Employee E’s letter mentioned probation, and not termination, as a possible
consequence if his outlined goals were not met. DSUF at no. 23; Hickman Decl., ¶ 8 &
Exh. 47; Landig Depo., 46:1-48:13.
Plaintiff believed that he was discriminated against on the basis of his age because
he was threatened with employment termination and Employee E, who was younger, was
not threatened with employment termination. PSF at no. 19; Landig Decl. ¶ 9. On or
about September 18, 2012, plaintiff emailed Augustine to complain about the September
2012 Performance Letter and stated that Hickman’s attitude, as reflected in the letter, had
more to do with plaintiff’s age than with his performance. PSF at no. 22; DSUF at no.
100; Landig Depo. at 45:21-46:9 & Ex. 3; Augustine Decl. ¶ 7 & Ex. 3. Plaintiff also
objected to his recent territory realignment, stating that it was unfair and made it harder
for him to meet his quota.6 DSUF at no. 101; Landig Depo. at 45:21-46:8 & Ex. 3;
Augustine Decl. ¶ 7 & Ex. 3. Augustine testified that defendants’ policy and procedure is
to conduct an investigation of any complaint of discrimination or harassment. PSF at no.
23; Augustine Depo. at 135:17-136:11.
Plaintiff does not dispute that Augustine concluded there was no evidence of age
bias, and communicated this conclusion to plaintiff. DSUF at no. 102; Augustine Decl. ¶
7 & Ex. 3. Plaintiff argues that Augustine’s investigation was inadequate or flawed
because it lacked the requisite thoroughness. However, plaintiff offers no admissible
evidence to support this conclusion.
Augustine did not tell Hickman or Azarian about plaintiff’s complaint, and did not
tell them that plaintiff was concerned that his age was a possible factor in his
performance letter. DSUF at no. 103; Landig Depo. at 103:14-24; Augustine Decl. ¶ 9;
Azarian Decl. ¶ 20; Hickman Decl. ¶ 7. Hickman and Azarian were not aware until after
plaintiff’s employment was terminated that plaintiff had made an internal age

6

Insofar as defendants object to plaintiff’s characterization that losing the territories
made it more difficult for him to reach his quota—because this statement is vague, lacks
foundation, is an improper lay opinion, is conclusory, is argumentative, and is
irrelevant—the Court overrules these objections. Plaintiff has personal knowledge of the
impact of his territory realignment, it is relevant to his competency as an employee, and if
the instant action reaches trial, plaintiff will have an opportunity to lay a foundation for
this statement at that time.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 6 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

discrimination complaint about Hickman. DSUF at nos. 104-105; Hickman Decl. ¶ 7;
Azarian Decl. ¶ 20.
Several weeks after plaintiff received the September 2012 Performance Letter, he
protested to Hickman that he believed the performance improvement plan was unfair
because his territory had been cut the prior year and given to Kama, a younger sales
representative, and plaintiff was still carrying the quota for those territories. PSF at no.
25; Hickman Depo. at 140:9-11; Landig Depo. at 80:14-82:6; Landig Decl. ¶ 12.
On or about January 15, 2013, Hickman presented plaintiff with a year-end
performance review which reflected that plaintiff’s performance was satisfactory, noting
“[a]lthough Chris did not hit his Performance Improvement Plan objective of 95% to
quota, he did have a strong 4th quarter to finish at 92%.” DSUF at no. 25; Landig Depo.
at 106:12-14, 107:1-13, 108:6-14, 113:15-19, 113:25-114:6 & Ex. 10; Hickman Decl. ¶ 8
& Ex. 10. Plaintiff did not see any reason to refute anything in the year-end performance
review. DSUF at no. 26; Landig Depo., 107:14-108:5 & Ex. 10.
On or about January 25, 2013, Hickman felt that he needed to motivate plaintiff
again and issued plaintiff another performance improvement letter (the “January 2013
Performance Letter”).7 PSF at no. 28; DSUF at no. 27; Landig Depo., 113:3-14 & Ex.
11; Hickman Decl. ¶ 10 & Ex. 11. The January 2013 Performance Letter reflected that
plaintiff was not meeting his goals and objectives and that his “territory ranks the lowest
in sales in the region and is the only territory with year to date sales below base,” and
further reflected that plaintiff was required to meet 100% of quota for the year. DSUF at
no. 28; Landig Depo. at 113:3-14 & Ex. 11; Hickman Decl. ¶ 10 & Ex. 11. The contents
of the letter are undisputed: (1) plaintiff had grown his sales 3 percent between the
September 2012 Performance Letter and the end of the fiscal year; (2) he was trending
below base at 94.9 percent of his base; (3) he was trending to finish January at 84.6
percent of his quota; and (4) he had negative year-to-date growth in all product

7

Plaintiff disputes that Hickman issued the performance letter to motivate plaintiff,
yet plaintiff’s evidence that Hickman subsequently identified plaintiff in the November
2013 performance review as “extremely self-motivated,” Dkt. 47 & Ex. 7, does not
foreclose, and thus does not controvert, Hickman’s motivation in issuing the January
2013 Performance Letter.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 7 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

categories, with the exception of two products.8 DSUF at nos. 29-32; Landig Depo.,
113:20-114:19 & Ex. 11; Hickman Decl. ¶ 10 & Ex. 11. The letter notified plaintiff that
he faced employment termination if he did not meet the letter’s stated objectives. PSF at
no. 29; Landig Decl. ¶ 13 & Ex. 6.
Plaintiff told Hickman that the January 25, 2013 letter was for the purposes of
harassment, and that he had “given it his all” to get to 92 percent after a year where his
territory was cut.9 PSF at no. 30 & Ex. 6; Landig Depo. at 115:25-116:17; Landig Decl. ¶
13. Plaintiff did not have an issue with Hickman communicating the content of this letter
to him orally, but he took issue with Hickman putting it in writing and adding it to his
file. DSUF at no. 33; Landig Depo. at 117:7-21, 118:18-22 & Ex. 11. Plaintiff also took
issue with the letter insofar as it threatened him with employment termination. Landig
Decl. ¶ 13.
On or about May 24, 2013, Hickman issued plaintiff a mid-year performance
review that plaintiff agreed was favorable. DSUF at no. 34; Landig Depo. at 119:16-21,
121:15-122:2, 122:18-123:2 & Ex. 12. Plaintiff finished the fiscal year at 96 percent of
quota, though this fell short of the 100 percent quota set forth in the January 2013
Performance Letter.10 DSUF at no. 35; Landig Depo. at 128:24-129:23 & Ex. 13;
Hickman Decl. ¶ 11 & Ex. 13. Hickman felt that plaintiff had made a good effort at that
time that he issued plaintiff an end-of-year performance review on November 15, 2013,
which plaintiff agreed was fair and positive. DSUF at no. 36; Landig Depo. at 128:22129:13 & Ex. 13; Hickman Decl. ¶ 11 & Ex. 13.
On or about May 13, 2014, Hickman issued plaintiff a mid-year performance
review, which plaintiff agreed was fair and favorable. DSUF at no. 37; Landig Depo. at
129:24-131:2 & Ex. 14. For fiscal year 2014, plaintiff was at 104 percent of quota. PSF
at no. 32; DSUF at no. 38; Landig Depo. at 131:18-24; Hickman Decl. ¶ 12. On or about
November 11, 2014, Hickman issued plaintiff an end-of-year performance review, which

8

Although plaintiff does not dispute that these facts accurately portray the content
of the document, he disputes the reasons that allegedly made it difficult for plaintiff to
meet his quota that year.
9
The Court overrules defendants’ objection to this fact as hearsay because this fact
tends to show plaintiff’s state of mind.
10
Plaintiff disputes the significance of his quota achievement.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 8 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

Landig agreed was fair and favorable. DSUF at no. 39; Landig Depo. at 131:25-132:24
& Ex. 15.
C.

Azarian’s 2015 Promotion to Vice President and Subsequent
Interactions with Plaintiff

In January 2015, Gregory Azarian was promoted to Vice President of the Surgical
Business Unit at CooperSurgical, which oversees sales in all U.S. regions. He became
Hickman’s supervisor. DSUF at no. 40; Azarian Decl. ¶ 3; Hickman Decl. ¶ 13.
Azarian began looking for someone to fill the Regional Manager, Mountain States
position. DSUF at no. 110; Azarian Decl. ¶ 5. On or about February 5, 2015, plaintiff
informed Azarian that he was interested in the Regional Manager, Mountain States
position, and Azarian asked him to forward a list of accomplishments. DSUF at no. 111;
Landig Depo. at 133:21-134:25 & Ex. 16; Azarian Decl. ¶6. On or about February 11,
2015, plaintiff forwarded this information to Azarian. PSF at no. 35; DSUF at no. 112;
Landig Depo. at 133:21-134:25 & Exh. 16; Azarian Decl. ¶ 7 & Ex. 16. The Mountain
States Region included Northern California, Washington, Oregon, Montana, Idaho,
Wyoming, Northern Nevada, Utah, and Colorado. DSUF at no. 114; Azarian Decl. ¶ 8.
Azarian preferred that Regional Managers live within their regions in order to cut down
on travel time and expenses. DSUF at no. 113; Azarian Decl. ¶ 8; Landig Depo. at
140:25-141:10.
Azarian, who was based in Connecticut, conducted a telephonic interview with
plaintiff for the position. DSUF at no. 115; Landig Depo. at 138:9-25; Azarian Decl. ¶¶
3, 8. After the interview, Azarian formed the impression that plaintiff was not willing to
move in order to live in the territory, DSUF at no. 116; Azarian Decl. ¶ 8, although
plaintiff contends that he specifically told Azarian he was willing to relocate, PSF at no.
35; Landig Decl. ¶ 5; Landig Depo. at 140:20-24, 141:25-142:6.
On February 24, 2015, Azarian emailed plaintiff and inquired whether he was still
interested in the Regional Manager position and noted that he had not heard from
plaintiff. DSUF at no. 117. Plaintiff responded that he was still interested, and
forwarded his new resume that day, as Azarian advised. DSUF at no. 117; Landig Depo.
at 146:21-148:19 & Exs. 17-18; Azarian Decl. ¶ 9 & Ex. 17. The fact that Azarian had to
prompt plaintiff to forward his current resume—after plaintiff had sent Azarian an
outdated resume on February 11, 2015—left Azarian with the impression that plaintiff

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 9 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

was not pushing that hard for consideration for the promotion. DSUF at no. 118; Azarian
Decl. ¶ 9.
Azarian ultimately decided to transfer Mukand, then Regional Manager, Southwest
Region, laterally into the Mountain States Regional Manager position. DSUF at no. 121;
Azarian Decl. ¶ 11; Augustine Decl. ¶ 4(h). Mukand was in his 50’s at the time he
transferred positions. DSUF at no. 122; Augustine Decl. ¶ 4(h). Azarian made this
lateral transfer decision because (1) Mukand was already an experienced Regional
Manager; (2) Azarian was familiar with his performance as a manager, having worked
with him for several years; and (3) Mukand had recently relocated from Chicago to
Pasadena, which was outside of both regions, but closer to the Mountain States Region.11
DSUF at nos. 123-124; Azarian Decl. ¶ 11.
Plaintiff was informed of Azarian’s decision regarding the Regional Manager
positions on or about March 5, 2015. DSUF at no. 130; Landig Depo. at 148:20-149:17
& Ex. 19. Though plaintiff disagreed with this decision because of Mukand’s alleged
history of discriminatory age-based comments to another employee over the age of 40,
Landig Decl. ¶ 27, plaintiff did not express his disagreement with this decision in his
response to Azarian. DSUF at no. 131; Landig Depo. at 148:20-149:17 & Ex. 19.
D.

Plaintiff’s April 2015 Plan and Review Meeting with Hickman and
Azarian

In early 2015, after plaintiff’s performance of 104 percent of quota for fiscal year
2014, Hickman shared concerns about plaintiff’s performance with Azarian, who at that
point had no knowledge of plaintiff’s performance. PSF at no. 34; Azarian Depo. 150:322, 151:4-8, 165:12-24.
On or about March 30, 2015, Hickman sent an email to plaintiff to advise him that
he and Azarian wanted to meet with him for a “Plan and Review” meeting on April 14,
2015. DSUF at no. 41; Landig Depo. at 165:12-166:6 & Ex. 21; Hickman Decl. ¶ 14.
On or about April 8, 2015, Hickman emailed plaintiff to inform him that he should come
prepared to discuss his territory growth strategy and target accounts through the end of
the fiscal year 2015, territory opportunities and challenges, status of his top five revenue
accounts, current contracts, target accounts where a new contract might be helpful, and

11

Neither plaintiff nor defendants attaches any significance to the fact that Mukand
had apparently moved to Pasadena, which was outside the Mountain States Region.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 10 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

his business at risk. DSUF at no. 42; Landig Depo. at 151:1-19 & Ex. 20; Hickman Decl.
¶ 15 & Ex. 20.
On or about April 14, 2015, Hickman and Azarian flew out to meet with plaintiff at
the LAX Marriott for the scheduled meeting. DSUF at no. 43; Landig Depo. at 151:16152:6, 165:12-166:6, & Ex. 21; Azarian Decl., ¶ 14; Hickman Decl., ¶ 16. During the
meeting, Azarian and Hickman posed various questions to plaintiff about why certain
aspects of his business were down and how plaintiff planned to meet his quota for the
coming year. DSUF at no. 44; Landig Depo. at 156:13-15, 159:24-160:5; Azarian Decl.,
¶ 15; Hickman Decl., ¶ 16. In response to questions regarding his low sales numbers,
plaintiff expressed his concern that he had new products quota with no new products
because their launches were delayed; CooperSurgical no longer had a patent on a
particular device and accordingly, competition was setting in; and one of plaintiff’s big
accounts blamed Obamacare for a decrease in business. PSF at no. 36; Landig Depo. at
154:20-156:24, 160:16-25, 162:3-164:7; Landig Decl. ¶ 17. Azarian and Hickman did
not inquire into the details of these reasons plaintiff gave to explain his low sales
numbers.12 PSF at no. 38; Landig Decl. ¶ 17.
The parties dispute the level of detail that plaintiff provided in response to
questions from Hickman and Azarian, and whether plaintiff brought a written action plan
with him to this meeting that detailed how he would meet his quota. Azarian was
bothered that plaintiff did not provide answers with sufficient detail as to why sales were
down in his territory, and Azarian excused himself from the room to collect his thoughts.
DSUF at nos. 46, 48; Azarian Decl. ¶ 15.
Plaintiff felt that it was a tough and uncomfortable meeting, in part because he did
not have an answer to how he was going to make up the “gap.” DSUF at no. 49; Landig
Depo. at 153:25-154:7, 155:4-20; 158:12-17, 159:4-8.13 Plaintiff understood that Azarian
was disappointed in his answers to questions posed to him during the meeting because he
could not tell them how he was going to make up the gap in his quota. DSUF at no. 50;

12

Defendants object to this fact as immaterial because it fails to create a triable issue
of fact. However, this fact is material insofar as it relates to the issue of pretext with
respect to defendants’ legitimate business reason for terminating plaintiff’s employment.
13
The parties dispute whether plaintiff failed to have an answer to this question
because plaintiff failed to bring a written plan, or because plaintiff did not have an answer
because the “gap” was due to circumstances out of his control.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 11 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

Landig Depo. at 159:24-160:5. Plaintiff agreed that the questions that Azarian and
Hickman asked him during the plan and review meeting were not unfair. DSUF at no.
51; Landig Depo. at 182:5-13.
Based on what Azarian perceived as (1) plaintiff’s basic ignorance of the state of
affairs in his own territory; (2) his lack of plan to stop the slide in sales; and (3) his
apparent lack of caring that he had no plan, Azarian decided that plaintiff’s employment
should be terminated. DSUF at no. 52; Azarian Decl. ¶ 16. Azarian communicated this
decision to Hickman after the plan and review meeting. DSUF at no. 53; Azarian Decl. ¶
16; Hickman Decl. ¶ 17. However, this was not a final decision, as Azarian asked
Hickman to work with plaintiff to help turn plaintiff’s performance around before moving
forward with plaintiff’s employment termination. DSUF at no. 54; Azarian Decl. ¶ 16;
Hickman Decl. ¶ 17. Accordingly, Azarian decided that, unless Landig engaged in
specific and detailed planning necessary to provide his managers with basic information
about his territory and necessary to meet his sales quotas, Azarian would move forward
with the termination. DSUF at no. 55; Azarian Decl., ¶ 16.
The day following the plan and review meeting Hickman emailed plaintiff that he
was embarrassed by his lack of detailed preparation, and attached a form spreadsheet that
he requested plaintiff use to set monthly sales goals for each client target, including a
detailed plan on how to achieve these goals. DSUF at no. 57; Landig Depo. at 172:8173:10 & Ex. 22; Hickman Decl. ¶ 22. Plaintiff understood how Hickman could have
been embarrassed by plaintiff’s lack of detailed preparation for the meeting. DSUF at no.
58; Landig Depo. at 173:11-13. On or about April 22, 2015, Hickman provided plaintiff
with an example of the kind of detailed information that he wanted plaintiff to use in his
plans. DSUF at no. 59; Hickman Decl. ¶ 19 & Ex. 23.
On or about May 7, 2015, Hickman delivered plaintiff’s mid-year review, the
contents of which are undisputed—Hickman rated plaintiff as having “opportunity for
improvement” in seven areas: creativity, self-confidence, having a sense of urgency, sales
presentations, identifying high return opportunities, and displaying an understanding of
the marketplace, customers and competition. Plaintiff was rated as “off plan” on all of
his objectives and only at 82% of quota. The comments reflected he was ranked 70th in
his business unit out of 82 sales representatives. DSUF at no. 60; Landig Depo. 186:14190:14, 191:2-192:6 & Ex. 24; Hickman Decl., ¶ 20 & Ex. 24.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 12 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

E.

Hickman’s May 2015 Ride-Along with Plaintiff

On or about May 19-21, 2015, Hickman conducted a ride-along with plaintiff.
DSUF at no. 63; Landig Depo. at 193:12-20; Hickman Decl. ¶ 22. During a ride-along a
supervisor accompanies a sales representative for the day, visits accounts, talks to
customers, and attends surgeries. DSUF at no. 64; Landig Depo. at 27:6-12. The general
purpose of a ride-along includes showcasing a sales representative’s skills, facilitating
communications with the Regional Manager, and helping the sales representative with
tough accounts. DSUF at no. 65; Landig Depo. 194:6-10.
On the first day of the ride-along, plaintiff picked up Hickman from the airport
shortly after 1:00 pm. DSUF at no. 66; Landig Depo. at 55:4-5. During lunch Hickman
told plaintiff that he knew plaintiff had his “big birthday,” to which plaintiff responded,
“What birthday?” PSF at no. 42; Landig Depo. 206:7-13; Landig Decl. ¶ 20. Hickman
responded to plaintiff, “I know you are 60, Chris, you are the oldest and highest paid
employee we have.”14 Landig Depo. 206:13-18; Landig Decl. ¶ 20.
On the third and final day of the ride-along, plaintiff dropped Hickman off at his
hotel so that Hickman could join a conference call scheduled for 12:30 p.m. and make
other telephone calls thereafter. PSF at no. 45; DSUF at no. 71; Landig Decl. ¶ 22.
Plaintiff asked Hickman’s permission to see his son sworn into the military at a nearby
ceremony, and Hickman agreed. PSF at no. 45; Landig Depo. at 61:23-62:6; Hickman
Decl. ¶ 23. Plaintiff told Hickman that he would be gone for about an hour, yet plaintiff
was gone for over four hours. DSUF at nos. 72-73; Landig Depo. at 62:14-63:8;
Hickman Decl. ¶ 23. Plaintiff tried calling Hickman to warn him, but Hickman did not
take his calls. PSF at no. 46; Landig Depo. at 61:20-63:1; Landig Decl. ¶¶ 22-23.
Hickman was angry about what he perceived as a wasted afternoon and poor planning on
plaintiff’s part. DSUF at no. 74; Hickman Decl. ¶ 23. Plaintiff anticipated that Hickman
would be angry. PSF at no. 46; DSUF at no. 75; Landig Depo. at 61:16-19. After
plaintiff arrived back at Hickman’s hotel, the two sat down to discuss the ride-along and
disagreed on how the ride-along went; Hickman lost his temper and screamed “Fuck you!

14

Plaintiff does not dispute that this was Hickman’s only comment that explicitly
references his age. DSUF at no. 95; Landig Depo. at 196:25-199:6, 203:13-22, 266:17267:24 & Ex. 26.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 13 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

Fuck you! I’m so mad I could kill you!” and raised his fists at plaintiff. PSF at no. 47;
Landig Depo. at 210:18-211:8, 329:10-330:1; Landig Decl. ¶ 23.
Hickman prepared a field coaching report for the trip to let plaintiff know that his
level of planning and activity was not where it needed to be, noting that “[t]he level of
activity is too low and unacceptable…[t]alking with two surgeons, attending one proctor
RUMI II case, and stopping by two hospitals over the course of a two half day and one
full day field visit is not enough activity.” DSUF at no. 76; Hickman Decl. ¶ 24 & Ex.
27; Landig Depo. at 215:8-16, 234:7-14 & Ex. 27. Plaintiff prepared comments in
response to the field coaching report that included: “As far as what we accomplished, I
am my own worst enemy and always wish I had done more throughout the day.…I
wanted to and fully intended to bring you to Cedars, Little Co of Mary and San Dimas
Hospital.” DSUF at no. 77; Landig Depo. at 230:8-20, 232:4-19, 256:16:257:16 & Ex.
28.
In late May 2015, plaintiff reported to Augustine that on the last day of his May
ride-along with Hickman, Hickman blew up at him, held his fists in the air, directed
profanities at him, and yelled “I’m so mad at you I could kill you.” PSF at no. 49; DSUF
at no. 96; Landig Depo. at 59:18-60:1; Augustine Decl., ¶ 10 & Ex. 49. Though
Augustine did not interpret plaintiff’s complaint about Hickman to be related to perceived
age harassment or discrimination, DSUF at no. 108; Augustine Decl. ¶ 10 & Ex. 49, the
parties dispute whether plaintiff’s report actually included a complaint for Hickman’s
age-related comments during the first day of the ride-along, and if so, whether Augustine
investigated this portion of plaintiff’s complaint. Augustine’s contemporaneous notes of
her interview with plaintiff do not reflect any reference to plaintiff’s age; she did not
interpret plaintiff’s complaint about Hickman to be related to perceived age harassment
or discrimination; and she believes her notes are accurate. DSUF at no. 98; Augustine
Decl. ¶ 10 & Ex. 49. On or about the following day, Augustine spoke with Hickman
about the incident, and Hickman confirmed his anger and profanities, but stated that
plaintiff had sworn as well and denied saying “I’m so mad at you I could kill you” to
plaintiff. DSUF at no. 97; Augustine Decl. ¶ 10 & Ex. 49. As a result of her report,
Augustine told Hickman to be cautious of his emotions and the use of inappropriate
language. DSUF at no. 99; Augustine Decl. ¶ 10 & Ex. 49.
Augustine informed Azarian that Hickman used profanity to plaintiff during their
ride-along in May. PSF at no. 52; Azarian depo. at 217:10-218:11. Azarian and
Augustine both agreed that it is inappropriate for a regional manager to yell profanities at

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 14 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

a sales representative or to make comments about the representative’s age. PSF at no. 53;
Azarian Depo. at 221:4-11; Augustine Depo. at 221:24-223:3.
F.

Hickman’s Second Ride-Along with Plaintiff and July 2015 Email

On or about June 23, 2015, Hickman conducted another ride-along with plaintiff.15
DSUF at no. 79; Hickman Decl. ¶ 26 & Ex. 46. Hickman intended to spend two days
with plaintiff, but ended up only staying one day. PSF at no. 55 & Ex. 16; Landing Decl
¶28; Hickman Depo. at 246:19-25; DSUF at no. 79. The parties dispute Hickman’s
motivation for ending the ride-along early. Hickman contends that he ended it early after
plaintiff had calendared a case with Dr. Cifuentes for the wrong day, causing them to
miss the scheduled case. DSUF at no. 80; Landig Depo. at 395:3-6, 395:17-396:10,
399:13-20 & Ex. 46; Hickman Decl. ¶ 26, and Ex. 46. It is undisputed that plaintiff made
this calendaring mistake. Landig Depo. at 399:13-20. Plaintiff contends that Hickman
cut the ride-along short by one day because he wanted to go home and “get some things
done” and did not care to spend time with Landig. PSF at no. 55; Landig Decl., ¶ 28.
The parties do not dispute the contents of a July 18, 2015 email that Hickman sent
to plaintiff, which noted that the level of detail in his weekly schedules had not increased,
as Hickman had asked, and requested that plaintiff help him understand how he intended
to reach his quota. DSUF at no. 82. Plaintiff responded by essentially saying that the
market was saturated and changing his behavior would not change that (“I appreciate
your insight; however, it is not about a change in behavior”). DSUF at no. 82; Landig
Depo. at 388:7-24 & Ex. 44; Hickman Decl., ¶ 27 Ex. 44; Landig Decl. ¶ 28 & Ex. 25.
G.

Plaintiff’s August 2015 Employment Termination

On or about August 9, 2015, Azarian decided that he wanted to proceed with the
termination of plaintiff’s employment. DSUF at no. 83; Azarian Decl. ¶ 19. The parties
dispute the extent to which Azarian relied on information from Hickman in reaching this
final decision. Whether Azarian relied on information from Hickman in reaching the

15

Though the specific date is unclear, during this final ride-along Hickman told
plaintiff a statement to the effect of, “Boy, that UCLA sure is something else. It just
keeps growing and growing on Lonestar,” implying that Kama was getting all of the
benefits of the account after the 2011 realignment. PSF at no. 12; Landig Depo. at 80:1482:6. Defendants object to this evidence as immaterial, however, it is relevant insofar as
it relates to the issue of harassment on the basis of plaintiff’s age.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 15 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

following conclusion, it is undisputed that Azarian concluded that plaintiff’s itineraries
evidenced a lack of detailed planning necessary to reach his sales quota. DSUF at no. 84;
Azarian ¶¶ 18-19. On or about this same date, the parties do not dispute the contents of
Hickman’s email to Augustine in which he stated that he and Azarian would like to move
forward with the decision to terminate plaintiff’s employment based on his inability to
follow direction, effectively plan and manage his territory, and perform the activities
necessary to reach his goals. DSUF at no. 85; Hickman Decl. ¶ 29 & Ex. 51. Hickman
stated in this email to Augustine that he and Azarian had spoken and were in complete
agreement about the decision to terminate plaintiff’s employment. PSF no. 59 & Ex. 19;
Hickman Depo. at 254:22-255:7, 256:4-9.
On or about August 21, 2015, Hickman and Augustine called plaintiff and notified
him that his employment was terminated. PSF at no. 63; DSUF at no. 86; Compl. ¶
14(a); Hickman Decl., ¶ 30; Augustine Decl., ¶ 13. Plaintiff was 60 years old at the time.
Landig Decl. ¶¶ 2. Azarian did not know plaintiff’s age at the time of his employment
termination, although he assumed that plaintiff was close to Azarian’s own age.16
Plaintiff’s handwritten notes from the telephone call do not mention age. DSUF at no.
87; Jacobs Decl. ¶ 36 & Ex. 52. However, plaintiff contends that he stated during the
telephone call that the real reason for his termination was due to his age. PSF at no. 64;
Landig Decl. ¶ 29. As of the date of plaintiff’s deposition, it is undisputed that he did not
know who made the decision to terminate his employment. DSUF at no. 89; Landig
Depo. at 270:13-18.
Plaintiff now suffers from anxiety, depression, and stomach issues. PSF at no. 72;
Landig Depo. at 372:7-19. Since the termination of his employment, plaintiff regularly
takes medicine to help him sleep and cope with his anxiety and depression. PSF at no.
73; Landig Depo. at 371:19-372:6.
III.

LEGAL STANDARDS
A.

Summary Judgment

Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

16

Azarian is 55 years old, DSUF at no. 91; Augustine Decl. ¶ 4(a), Hickman is 50
years old, DSUF at no. 92; Augustine Decl ¶ 4(d), and Augustine is 54 years old, DSUF
at no. 93; Augustine Decl. ¶ 5.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 16 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

56(a). The moving party bears the initial burden of identifying relevant portions of the
record that demonstrate the absence of a fact or facts necessary for one or more essential
elements of each claim upon which the moving party seeks judgment. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its initial burden, the opposing party must then set out
specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed. R. Civ. P. 56(c), (e). The
nonmoving party must not simply rely on the pleadings and must do more than make
“conclusory allegations [in] an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for
the moving party if the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Id. at 322; see also Abromson v. Am. Pac. Corp., 114
F.3d 898, 902 (9th Cir. 1997).
In light of the facts presented by the nonmoving party, along with any undisputed
facts, the Court must decide whether the moving party is entitled to judgment as a matter
of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 &
n.3 (9th Cir. 1987). When deciding a motion for summary judgment, “the inferences to
be drawn from the underlying facts . . . must be viewed in the light most favorable to the
party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (citation omitted); Valley Nat’l Bank of Ariz. v. A.E. Rouse & Co., 121
F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving party is proper
when a rational trier of fact would not be able to find for the nonmoving party on the
claims at issue. See Matsushita, 475 U.S. at 587.
IV.

DISCUSSION

A.

Breach of Express Oral Contract and Breach of Implied-in-Fact
Contract Claims

Plaintiff alleges in his fifth and sixth claims that CooperSurgical breached an
express oral agreement and an implied agreement not to terminate plaintiff’s employment
without good cause. Compl. ¶¶ 54–57, 58–62.
Under California law, “[a]n employment, having no specified term, may be
terminated at the will of either party on notice to the other.” Cal. Lab. Code § 2922.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 17 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

Although this at-will presumption can be overcome by evidence of an implied-in-fact
agreement for employment for a specified term, no such contract can exist where it would
be inconsistent with the plain and express language of an at-will employment
relationship. See Agosta v. Astor, 120 Cal. App. 4th 596, 604, 15 Cal. Rptr. 3d 565, 570
(2004) (“There cannot be a valid express contract and an implied contract, each
embracing the same subject, but requiring different results.”); Camp v. Jeffer, Mangels,
Butler & Marmaro, 35 Cal. App. 4th 620, 630 (1995) (“The express term is controlling
even if it is not contained in an integrated employment contract.”); Comeaux v. Brown &
Williamson Tobacco Co., 915 F.2d 1264, 1271 n. 7 (9th Cir. 1990) (stating that where
contract stated that employment was at will, “oral statements [could] not be admitted to
create an implied termination-only-for-cause contractual agreement”).
Defendants argue that plaintiff was employed pursuant to an explicit at-will
agreement, which he understood meant that his employment could be terminated at any
time and without cause. MSJ at 28, Reply at 30.
Plaintiff contends that this issue is a question of fact, citing Guz v. Bechtel Nat.
Inc., 24 Cal. 4th 317 (2000), and argues that the existence of an implied agreement not to
discharge without cause depends on the totality of the circumstances. Opp’n at 21 (citing
Foley v. Interactive Data Corp., 47 Cal.3d 654 (1988)). Moreover, plaintiff argues that
lengthy employment persuades for an implied-in-fact agreement, and that plaintiff’s
nearly ten years of employment is sufficient to give rise to this inference. Id. (citing
McLain v. Great Am. Ins. Cos., 208 Cal. App. 3d 1476, 1481 (1989)).
As an initial matter, plaintiff’s reliance on Guz is inapposite. The Supreme Court
of California observed in that case that most California courts “have held that an at-will
provision in an express written agreement, signed by an employee, cannot be overcome
by proof of an implied contrary holding.” Guz, 24 Cal. 4th at 340, n. 10. Moreover, the
court observed that “where the undisputed facts negate the existence or the breach of the
contract claims, summary judgment is proper.” Id. at 337. Just so here. Defendants
proffer sufficient evidence to demonstrate that plaintiff was employed pursuant to an
express at-will agreement. Plaintiff’s offer letter reflected that his employment at
CooperSurgical was at-will, DSUF & Ex. 2, and plaintiff signed a human resources
authorization form acknowledging his employment was at will and could be terminated
without cause or notice. DSUF & Ex. 6. Moreover, plaintiff understood that he was
employed pursuant to an at-will agreement, DSUF at no. 134; Landig Depo. at 20:1621:2, 21:10-13 & Ex. 2, and acknowledges that he was never told by anyone at

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 18 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

CooperSurgical that his employment was not at will, DSUF at no. 135; Landig Depo. at
21:3-5.
Plaintiff fails to proffer evidence of subsequent express oral statements that his
employment was not at will, and plaintiff’s implied-in-fact argument is foreclosed by the
above-cited California case law holding that the existence of an express contract
precludes the existence of an implied-in-fact contract. Accordingly, the Court GRANTS
summary judgment as to plaintiff’s fifth claim for breach of express oral contract, and as
to plaintiff’s sixth claim for breach of implied contract.
B.

Negligent Hiring, Supervision, and Retention

Plaintiff alleges in his seventh claim that CooperSurgical owed a duty of care to
plaintiff to retain and supervise persons who would not engage in retaliatory, harassing,
or discriminatory conduct, and that it breached this duty to plaintiff.17 Compl. ¶¶ 63–65.
Under California law, “Liability for negligent ... retention of an employee is one of
direct liability for negligence, not vicarious liability ... [and] [l]iability under this rule is
limited by basic principles of tort law, including requirements of causation and duty.”
Phillips v. TLC Plumbing, Inc., 172 Cal. App. 4th 1133, 1139 (2009) (citing Restatement
(Third) of Agency § 7.05, cmt. c, p. 180). The rule “requires some nexus or causal
connection between the principal’s negligence in selecting or controlling an actor, the
actor’s employment or work, and the harm suffered by the third party.” Id. (citing
Restatement (Third) of Agency § 7.05, cmt. c, illus. 5, p. 180). “Negligence liability will
be imposed on an employer if it ‘knew or should have known that hiring [or retaining] the
employee created a particular risk or hazard and that particular harm materializes.’ ” Id.
(citation omitted).

17

Though the Workers’ Compensation Act typically bars negligence claims brought
by an employee against the employer, claims arising out of injury related to
discrimination “implicate fundamental public policy considerations” and are not
preempted by the Workers’ Compensation Act. Maynard v. City of San Jose, 37 F.3d
1396, 1405 (9th Cir. 1994). Because “[p]laintiff’s negligence claim rests on facts
supporting [his] claim for [ ] discrimination,” the Workers’ Compensation Act
accordingly does not preempt this claim. Muniz v. United Parcel Serv., Inc., 731 F.
Supp. 2d 961, 976 (N.D. Cal. 2010).

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 19 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

In addition, an employer “is not liable [for negligent hiring or retention] ... merely
because [an employee] is incompetent, vicious, or careless.” Robinson v. HD Supply,
Inc., 2012 WL 5386293, at *8 (E.D. Cal. Nov. 1, 2012) (citation omitted). Rather, “an
employer’s duty ... is breached only when the employer knows, or should know, facts
which would warn a reasonable person that the employee presents an undue risk of harm
... in light of the particular work to be performed.” Federico v. Super. Ct., 59 Cal. App.
4th 1207, 1214 (1997); see also Molina v. City of Visalia, 2014 WL 1329711, at *1 (E.D.
Cal. Apr. 2, 2014) (“[N]egligence liability will only be imposed upon a supervisor or
employer that ‘knew or should have known’ that the particular hiring/supervision
decision or training practice ‘created a particular risk or hazard’ ”). Thus “an employer’s
liability must be determined in the context of the specific duties the work entails,” and
liability arises only when the employer “antecedently had reason to believe that an undue
risk of harm would exist because of the employment.” Federico, 59 Cal. App. 4th at
1215.
Defendants argue that insofar as plaintiff’s seventh claim is predicated on the
theory that he was subject to discrimination, harassment, or retaliation, this claim fails.
MSJ at 29. Moreover, defendants argue that plaintiff fails to proffer facts that
demonstrate what CooperSurgical knew about Hickman prior to plaintiff’s hire. Reply at
30.
Plaintiff contends that because plaintiff expressed his concerns about Hickman’s
allegedly unlawful treatment, his concerns were ignored, and he ultimately suffered from
emotional distress as a result of Hickman’s conduct, defendants are liable for negligent
hiring, supervision, and retention. Opp’n at 30.
The Court finds that no triable issue of material fact exists with respect to
plaintiff’s negligent retention claim. The record is devoid of admissible evidence that
demonstrates that CooperSurgical had reason to believe that Hickman posed an undue
risk of harm to its employees, particularly in light of the fact that Augustine concluded
there was no evidence of age bias following her 2012 investigation, and because
Augustine cautioned Hickman about his emotions and the use of profanities following
plaintiff’s 2015 complaint. There is also no evidence to demonstrate that CooperSurgical
failed to use reasonable care in ascertaining Hickman’s fitness as an employee.
Moreover, employers are only liable for negligent retention “when the employer knew or
should have known that hiring or retaining the employee created a particular risk or
hazard and that particular harm materializes.” Garcia ex rel Marin v. Clovis Unified

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 20 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

School Dist., 627 F. Supp. 2d 1187, 1208 (E.D. Cal. Apr. 16, 2009), citing Doe v. Capital
Cities, 50 Cal. App. 4th 1038, 1054 (1996)) (emphasis added). The evidence fails to
demonstrate that, after Hickman’s alleged verbal outburst against plaintiff in May 2015,
Hickman repeated this inappropriate conduct with another employee. No reasonable jury
could conclude, based on the admissible evidence, that CooperSurgical was aware that
Hickman posed an undue risk of harm to its employees.
Accordingly, the Court GRANTS defendants’ motion for summary judgment as to
plaintiff’s seventh claim for negligent retention.
C.

Intentional Infliction of Emotional Distress

Plaintiff’s tenth claim against defendants asserts intentional infliction of emotional
distress. Compl. ¶ 79. A claim for intentional infliction of emotional distress exists
when plaintiff alleges that “(1) the defendant engaged in extreme and outrageous conduct
with the intention of causing, or reckless disregard of the probability of causing, severe
emotional distress to the plaintiff; (2) the plaintiff actually suffered severe or extreme
emotional distress; and (3) the outrageous conduct was the actual and proximate cause of
the emotional distress.” Ross v. Creel Printing & Publ’g Co., 100 Cal. App. 4th 736,
744–45 (2002). Conduct is outrageous if it is “so extreme as to exceed all bounds of that
usually tolerated in a civilized community.” Conley v. Roman Catholic Archbishop of
San Francisco, 85 Cal. App. 4th 1126, 1133 (2000). “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.” Potter v. Firestone Tire &
Rubber Co., 863 P.2d 795, 821 (Cal. 1993).
Defendants argue that because defendants did not engage in harassment,
discrimination, or retaliation, plaintiff’s claim fails as a matter of law. MSJ at 30.
Moreover, they argue that Hickman is protected from individual liability by the doctrine
of managerial immunity. MSJ at 31 (citing Sheppard v. Freeman, 67 Cal. App. 4th 339,
347 (1998)).
Plaintiff responds that Hickman’s conduct in screaming profanities at plaintiff,
telling him he knew that he was 60 years old and the oldest, highest-paid employee have
no relation to personnel decisions, and accordingly, he is not protected by the doctrine of
managerial immunity. Opp’n at 24–25 (citing Sheppard, 67 Cal. App. 4th 339 at 347).
Plaintiff further argues that his claims for retaliation, harassment, discrimination, and

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 21 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

wrongful employment termination all support his claim for intentional infliction of
emotion distress. Id. at 25 (citing Cabuseula v. Browning-Ferris Industries of California,
Inc., 68 Cal. App. 4th 101, 112 (1998)).
As an initial matter, the Court observes that managerial immunity does not bar
plaintiff’s claim for intentional infliction of emotional distress against Hickman because
it is based on alleged discriminatory conduct not attributable to the normal parts of an
employment relationship. See Hattox v. State Farm Mut. Auto. Ins. Co., No. 12-CV2597-AJB-KSC, 2013 WL 314953, at *7 (S.D. Cal. Jan. 25, 2013) (“there is no authority
for the proposition that a manager may not be liable in tort for the intentional infliction of
emotion distress providing all of the elements of that tort are satisfied”) (citing Calero v.
Unisys Corp., 271 F. Supp. 2d 1172, 1178 (N.D. Cal. 2003) (“California case law is
replete with cases where conduct of the employer or one of its agents or employees is so
outside the bounds of conduct tolerated by a decent society that it may give rise to a
claim for intentional infliction of emotional distress.”)).
Plaintiff’s claim for intentional infliction of emotion distress requires that
defendants engaged in extreme and outrageous conduct. The Court finds that whether
Hickman’s alleged discriminatory comments and outburst to plaintiff constituted extreme
conduct is a matter better suited for a jury. A reasonable trier of fact could find that
Hickman’s age-related comments and profanities directed at plaintiff during the May
2015 ride-along were outrageous—especially in light of Hickman’s supervisory
position—and that they were done for purposes of discrimination or harassment
prohibited by FEHA and were intended to cause plaintiff emotional distress. Triable
issues of material fact therefore preclude summary adjudication of this claim.
Accordingly, the Court DENIES summary judgment as to plaintiff’s tenth claim.
D.

Plaintiff’s FEHA-Based Claims

Plaintiff asserts in his first, second, third, fourth, and eighth claims that defendants
failed to promote, harassed and discriminated against plaintiff on the basis of his age; that
defendants retaliated against him for complaining about age discrimination and
harassment; and that defendants wrongfully terminated plaintiff in violation of California
public policy, FEHA, and California Labor Code section 1102.5. Compl. ¶¶ 26, 33, 40,
49, 67.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 22 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

1.

Age Discrimination in Violation of FEHA

Plaintiff’s first claim alleges age discrimination in violation of FEHA against
CooperSurgical. Compl. ¶ 26. In evaluating claims for employment discrimination,
California has adopted the three-stage burden shifting test set forth in McDonnell
Douglas v. Green, 411 U.S. 792 (1973). Guz v. Bechtel Nat’l, Inc., 24 Cal.4th 317, 354
(2000). Once the plaintiff has made a prima facie showing of employment
discrimination, “the burden then shifts to the employer to offer a legitimate,
nondiscriminatory reason for the adverse employment action.” Deschene v. Pinole Point
Steel Co., 76 Cal. App. 4th 33, 44 (1999). If the employer offers such a reason, “plaintiff
must offer evidence that the employer’s stated reason is either false or pretextual, or
evidence that the employer acted with discriminatory animus, or evidence of each which
would permit a reasonable trier of fact to conclude the employer intentionally
discriminated.” Id.
a.

Prima Facie Case

To state a prima facie age discrimination case under FEHA, plaintiff must establish
that: (1) he was a member of a protected class; (2) he was performing competently in the
position he held; (3) he suffered an adverse employment action, such as termination; and
(4) some other circumstances suggest discriminatory motive. Guz, 24 Cal.4th at 355. In
claims for age discrimination, plaintiff may also satisfy the fourth element by
demonstrating that he was replaced by substantially younger employees with equal or
inferior qualifications. Santillan v. USA Waste of California, Inc., 853 F.3d 1035, 1043
(9th Cir. 2017); Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th Cir. 2012). Here, the
Court finds that there are triable questions as to several elements of plaintiff’s prima facie
case for age discrimination.
Defendants argue that plaintiff cannot establish he was performing his job
satisfactorily—after the April 2015 plan and review meeting—and that there are no
circumstances to suggest a discriminatory motive. MSJ at 23. Plaintiff responds that in
2014 plaintiff exceeded his quota and received positive mid-year and year-end reviews.
Opp’n at 16.
Initially, it is clear that plaintiff has satisfied the first and third elements based on
his age and the fact that he suffered employment termination. See, e.g., Beale v. GTE
California, 999 F. Supp. 1312, 1322 (C.D. Cal. 1996) (noting that plaintiffs had

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 23 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

demonstrated their membership in a protected class because they were “over the age of
forty”).
With respect to the second element, defendants proffer evidence that Azarian and
Hickman were dissatisfied with plaintiff’s performance, but plaintiff similarly proffers
evidence of positive 2014 mid-year and year-end reviews. Moreover, in Hickman’s
January 15, 2013 performance review, Hickman wrote that “Landig’s knowledge of our
business and products is among the best in the Western Region.” PSF at no. 28.
With respect to the fourth element, plaintiff proffers evidence that suggests a
discriminatory motive. For example, Hickman’s alleged remarks about plaintiff’s “big
birthday” and the fact that plaintiff was the oldest and highest-paid employee in the
company suggest a potential for age bias. Landig Decl. ¶ 20. In addition, the disciplinary
September 2012 Performance Letter threatened plaintiff with employment termination,
while another similar letter sent to a younger employee only threatened employment
probation. Accordingly, viewing the evidence in the light most favorable to plaintiff, a
rational jury could conclude that plaintiff has sufficiently demonstrated a prima facie case
for age discrimination.
b.

Whether Defendants Had a Legitimate, Non-Discriminatory
Business Reason for Terminating Plaintiff’s Employment

To be “legitimate,” the employer’s proffered reason need only be “facially
unrelated to prohibited bias.” Reid v. Google, Inc., 50 Cal. 4th 512, 520 n.2 (2010); see
also McInteer v. Ashley Distribution Services, Ldt., 40 F. Supp. 3d 1269, 1284 (C.D. Cal.
2014) (“Defendants’ ‘burden is one of production, not persuasion, thereby involving no
credibility assessment.’ ”) (citing Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146,
1169 (C.D. Cal. 2013)).
Defendants contend that plaintiff’s employment was terminated because of his
inability to follow direction, effectively plan and manage his territory, and perform the
activities necessary to reach his quota. MSJ at 23. Because plaintiff’s purportedly poor
performance is “facially” unrelated to his age, defendants have met their burden to
proffer a legitimate, non-discriminatory reason for terminating plaintiff’s employment.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 24 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

c.

Showing of Pretext

“Once an employer has articulated a legitimate, non-discriminatory business
reason for terminating an employee, the burden shifts to the employee to provide
substantial, responsive and admissible evidence that the employer’s stated reason is a
pretext and that the true reason for the termination was illegal discrimination.” Faust,150
Cal. App. 4th at 875. Nonetheless, as already stated, a reasonable fact finder could
conclude that, contrary to defendants’ opinion, plaintiff was a competent employee.
Defendants argue that Azarian made the final decision to terminate plaintiff’s
employment, and that Hickman made positive efforts to coach and guide plaintiff’s
performance after the May 2015 plan and review meeting. MSJ at 24. Defendants
further contend that Hickman is the one who promoted Landig into the Senior Certified
Sales Representative position, and accordingly, it is not consistent to draw an inference
that Hickman had an issue with plaintiff’s age or compensation. Id. (citing Coghlan v.
Am. Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir. 2005)). Moreover, defendants
argue, plaintiff admits that he has no evidence of age bias on the part of Azarian or
Augustine, and that the decision makers in this case are all over 40 years old. Id.
Plaintiff argues that defendants gave shifting reasons for terminating plaintiff’s
employment. Opp’n at 17. In addition, plaintiff argues that defendants did not conduct
any investigation of plaintiff’s two separate complaints of unlawful treatment on the basis
of his age, and accordingly, defendants’ failure to honor CooperSurgical’s policies and
procedures evidences pretext. Id. at 18 (citing Village of Arlington Heights v. Met.
Hous. Dev. Corp., 429 U.S. 252, 267 (1977)). Plaintiff next contends that biased
remarks, regardless of how potentially benign, evince pretext, and thus Hickman’s
remarks about plaintiff’s age creates an inference of pretext. Id. at 19 (citing Ercegovich,
154 F.3d at 355; Reid, 50 Cal.4th at 540; Pantoja v. Anton, 198 Cal. App. 4th 87, 119
(2011); O’Mary, 59 Cal. App. 4th at 575. Last, plaintiff contends that defendants are
liable under the “Cat’s Paw” theory because Hickman was involved in Azarian’s decision
to terminate plaintiff’s employment, and accordingly, “a showing that a significant
participant in an employment decision exhibited discriminatory animus is enough to raise
an inference that the employment decision itself was discriminatory.” Id. at 19–20 (citing
DeJung v. Superior Court, 169 Cal. App. 4th 533 (2008)).
Defendants argue in response to plaintiff’s “Cat’s Paw” theory that none of the
evidence reflects that Azarian scheduled the April 2015 plan and review meeting due to

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 25 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

Hickman’s insistence. Reply at 12. The information that Azarian had about plaintiff’s
performance following the April 2015 meeting came, in part, from plaintiff’s own weekly
reports and emails, and moreover, Azarian made an independent assessment of plaintiff’s
performance from Hickman’s Field Coaching Reports, which contained “significant
points” that plaintiff did not dispute. Id. at 13.
Defendants further contend that Augustine responded to plaintiff’s September 18,
2012 complaint by speaking to both parties, forming a conclusion, and communicating
that conclusion to plaintiff. Reply at 23. Likewise, defendants argue, no discriminatory
motives can be inferred from Augustine’s investigation of the May 21, 2015 outburst
incident, because her contemporaneous notes do not reflect that plaintiff reported any
comment about his age and she did not interpret plaintiff’s complaint to be grounded in
age harassment or discrimination. Id. Plaintiff could not say for sure whether he told
Augustine about Hickman’s alleged age comments. Id. Moreover, defendants argue that
plaintiff fails to explain the discrepancy between his deposition testimony, where he does
not remember if he reported the “big birthday” comment to Augustine, Landig Depo. at
343:18-344:11, and his declaration, where he asserts that he included this remark in his
complaint to Augustine. Id. at 24 (citing to Kennedy v. Allied Mut. Ins. Co., 952 F.2d at
266).
As an initial matter, the same-actor inference identified in Coghlan is “neither a
mandatory presumption (on the one hand) nor a mere possible conclusion for the jury to
draw (on the other). Rather, it is a ‘strong inference’ of no discriminatory action that a
court must take into account on a summary judgment motion.” Coghlan, 413 F.3d at
1098 (citation omitted). The Court is mindful of Coghlan’s holding. Nonetheless, it is
undisputed that Hickman promoted plaintiff because “his boss had an expectation,” and,
of the five direct employees, plaintiff was the only one eligible. PSF at no. 15.
Notwithstanding plaintiff’s promotion, and as set forth above, plaintiff raises two events
that express a discriminatory motive with respect to plaintiff’s age. First, the evidence
demonstrates that Hickman’s September 2012 Performance Letter to plaintiff—sent after
plaintiff’s promotion—warned plaintiff that his employment could be terminated if he did
not meet the letter’s stated objectives. See PSF & Ex. 3. In contrast, Hickman’s
September 2012 performance letter to Employee E—an employee in his 30’s—merely
warned Employee E that he faced “probation” if the he did not meet the letter’s stated
objectives. See PSF & Ex. 4. Second, Hickman remarked to plaintiff during the first
ride-along—and only three months before plaintiff’s employment termination—that he
knew plaintiff had just had his “big birthday,” and that plaintiff was the oldest and

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 26 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

highest-paid employee at the company. Viewed in the light most favorable to plaintiff,
the Court cannot conclude as a matter of law that these statements were not indicative of
age bias, particularly so close to plaintiff’s employment termination and during a time
when Hickman was, at Azarian’s direction, required to be coaching and supporting
plaintiff.
In addition, no reasonable jury could find that Hickman was not a direct and
important participant in the final decisionmaking process leading to Azarian’s final
decision to terminate plaintiff’s employment. Azarian directed Hickman to “coach and
guide” plaintiff’s performance before he reached a final decision, and it is undisputed that
both Hickman and Azarian agreed together to make the final decision to terminate
plaintiff’s employment. PSF at no. 59.
Accordingly, because plaintiff demonstrates two separate events that could express
a discriminatory motive with respect to his age by Hickman, and because Hickman took
part in the final decision to terminate plaintiff’s employment, plaintiff has met his burden
to proffer evidence demonstrating that defendants’ proffered legitimate, nondiscriminatory reason for terminating his employment was pretextual. As such, there is a
disputed issue of material fact to be decided by the jury.
Therefore, the Court DENIES defendants’ motion for summary judgment as to
plaintiff’s age discrimination claim.
2.

Failure to Promote Due to Age Discrimination in Violation of
FEHA

Plaintiff’s fourth claim against CooperSurgical alleges failure to promote on the
basis of age discrimination in violation of FEHA. Compl. ¶ 14. The McDonnell Douglas
burden-shifting regime similarly applies to this claim for discrimination in violation of
FEHA.
a.

Prima Facie Case

As stated, a prima facie age discrimination case under FEHA requires that plaintiff
establish: (1) he was a member of a protected class; (2) he was performing competently
in the position he held; (3) he suffered an adverse employment action; and (4) some other
circumstances suggest discriminatory motive. Guz, 24 Cal.4th at 355.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 27 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

Defendants argue that there is no evidence that plaintiff’s age was a factor in the
decision not to promote him. MSJ at 25. Moreover, the individual who was selected
instead—Mukand—was 57 years old and already a Regional Manager in a different
region. Id. Azarian formed the impression that plaintiff was not willing to relocate for
the position, and was not particularly interested. Id.
In opposition, plaintiff argues that plaintiff specifically told Azarian during their
interview that he was willing to relocate. Opp’n at 20. Accordingly, plaintiff argues,
Azarian’s “false reason” for failing to promote plaintiff is evidence of pretext. Id. at 20.
The only prong of the test at issue with respect to plaintiff’s fourth claim is
whether there were circumstances surrounding the failure to promote that suggest a
discriminatory motive. The undisputed facts show that in February 2015, plaintiff
forwarded his resume to Azarian in order to apply for the Regional Manager, Mountain
States position. PSF at no. 35. Azarian preferred that Regional Managers live within
their respective regions to cut down on travel time and expenses. DSUF at no. 113.
Azarian conducted a telephonic interview with plaintiff, DSUF at no. 155, after which he
formed the impression that plaintiff was not willing to relocate, despite plaintiff’s
contentions that he explicitly offered to relocate for the position.18 DSUF at no. 116; PSF
at no. 35. Azarian had to prompt plaintiff afterwards to send an updated resume, which
left him with a further impression that plaintiff was not that interested in the promotion.
DSUF at nos. 117, 118.
Plaintiff fails to proffer any evidence that demonstrates circumstances to suggest
discriminatory motive. He fails to show that Azarian made any age-related comments to
him. Furthermore, the individual who was selected for the Regional Manager position
was 57 years old, and thus not significantly younger than plaintiff. DSUF at 122.
Accordingly, the Court GRANTS defendants’ motion for summary judgment with
respect to plaintiff’s fourth claim for failure to promote on the basis of age discrimination
in violation of FEHA.19

18

Plaintiff suggested during his deposition that, for purposes of a job interview, he
says what he thinks is required and figures out later what he is willing to do. Landig
Depo. at 142:7- 19.
19
Notwithstanding the Court’s conclusion with respect to plaintiff’s failure to
promote claim, the Court does not intend to suggest that plaintiff cannot assert that the

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 28 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

3.

Age Harassment in Violation of FEHA

Plaintiff asserts in his second claim that defendants engaged in age harassment in
violation of FEHA.20 Compl. ¶ 33. To establish a prima facie claim for harassment
under FEHA, “a plaintiff must demonstrate that: (1) [he] is a member of a protected
group; (2) [he] was subjected to harassment because [he] belonged to this group; and (3)
the alleged harassment was so severe that it created a hostile work environment.” Lawler
v. Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013); see also Chavez v.
JPMorgan Chase Bank, No. 15-cv-02328-DDP-PJW, 2016 WL 3556591, at *6 (C.D. Cal.
June 29, 2016) (a “[p]laintiff alleging age-based harassment must demonstrate, among
other things, that the harassment ‘is sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working environment.’ ” (quoting
Mokler v. Country of Orange, 157 Cal. App. 4th 121, 145 (2007))). In addition, “[t]he
plaintiff must show a concerted pattern of harassment of a repeated, routine or a
generalized nature.” Lawler, LLC, 704 F.3d at 1244 (quotation marks omitted).
“[E]vidence of, at most, isolated stray remarks is insufficient to give rise to a triable issue
of fact regarding hostile work environment or harassment based on age.” Allen v.
Centillium Comms., Inc., No. 06-cv-0615-EDL, 2008 WL 916976, at *7 (N.D. Cal. Apr.
3, 2008). Harassment consists of “actions outside the scope of job duties” and
“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.” Lawler, 704 F.3d at 1244 (quotation marks
omitted). Further, “[t]he working environment must both subjectively and objectively be
perceived as abusive.” Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995).
Defendants argue that plaintiff’s harassment claim necessarily fails because his
claim is premised on management actions, such as Hickman’s September 2012
Performance Letter and Hickman’s attempts to improve plaintiff’s performance after the
plan and review meeting with Azarian. MSJ at 26 (citing Janken v. GM Hughes
Electronics, 46 Cal. App. 4th 55, 64–65 (1996)). As such, defendants contend, these
personnel management actions do not come within the meaning of harassment. Id.
Defendants further contend that the only alleged incident that could arguably fall outside

failure to promote was not part of a larger scheme of other discriminatory conduct in
violation of FEHA.
20
FEHA harassment claims can be asserted against individuals. Cal. Gov’t. Code §
12940(i)-(j).

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 29 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

of “personnel management” is the heated conversation between Hickman and plaintiff on
May 21, 2015. Id. Defendants argue that this single, isolated incident is not sufficiently
severe to create a hostile work environment. Id. at 26–27 (citing Faragher v. City of
Boca Raton, 524 U.S. 755, 788 (1998)).
In opposition, plaintiff asserts that whether conduct constitutes harassment is
usually a question of fact for the jury. Opp’n at 20 (citing Harris v. Forklift Systems.
Inc., 510 U.S. 17, 23 (1993). Plaintiff contends that even a single offensive act or
comment by a supervisor is sufficient for liability. Id. (citing Dee v. Vintage Petroleum,
Inc., 106 Cal. App. 4th 30, 36 (2003)). In support of this assertion, plaintiff argues that
he was insulted and forced to battle repeated inappropriate and unprofessional comments
from Hickman regarding plaintiff’s age. Id. Moreover, plaintiff contends, Hickman
screamed profanities at plaintiff on May 21, 2015, which demonstrates harassment, and
Hickman’s age-related comments had nothing to do with personnel management. Id. at
21.
The California Supreme Court has concluded that “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.”
Roby v. McKesson Corp., 47 Cal. 4th 686, 707 (2009), as modified (Feb. 10, 2010)
(quotation and citation omitted). However, the reasoning in Roby also makes clear that
“discrimination and harassment claims can overlap as an evidentiary matter. The critical
inquiry when a court is deciding whether the evidence is sufficient to uphold a verdict
finding both discrimination and harassment is whether the evidence indicates violations
of both FEHA prohibitions, but nothing prevents a plaintiff from proving these two
violations with the same (or overlapping) evidentiary presentations.” Id. at 709. In
Roby, the plaintiff’s supervisor made negative comments to plaintiff about her body odor,
expressed disapproval when she took rest breaks, and overlooked her when handing out
small gifts to other employees. He also disciplined her over repeated absences, which
were due to a medical condition, and ultimately terminated her employment. Id. at 695.
A jury found in plaintiff's favor on her FEHA harassment claim and the Court of Appeal
reversed, reasoning—as defendants do here—that personnel decisions cannot constitute
harassment. Id. at 700. The California Supreme Court reversed, holding that the Court
of Appeal had improperly excluded discriminatory personnel decisions in examining
plaintiff’s harassment claim. Id. at 709. In distinguishing between harassment and
discrimination under FEHA, harassment is generally concerned with the message
conveyed to the employee, and therefore with the social environment of the workplace,

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 30 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

where discrimination is concerned with explicit changes in terms of employment. Id. at
708.
Turning to the prima facie case, with respect to the first and second prongs it is
clear that plaintiff is in a protected category (over 40) and that Hickman made an agerelated remark to plaintiff during the May 2015 ride-along. The closer question is
whether plaintiff proffers evidence demonstrating that Hickman’s actions and remarks
were severe enough to constitute a hostile environment under the third prong. Viewing
the evidence in the light most favorable to plaintiff, the Court concludes that triable
issues of material fact exist with respect to whether Hickman harassed plaintiff on the
basis of his age. Acknowledging that Hickman’s managerial conduct can serve as
evidence for plaintiff’s harassment claim, whether Hickman’s conduct in issuing the
performance review letters and his request for detailed weekly reports from plaintiff after
the April 2015 plan and review meeting demonstrates “a concerted pattern of harassment
of a repeated, routine or a generalized nature” is a matter better decided by a jury. See
Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121, 131 (1999). This is particularly
true in light of plaintiff’s evidence that Hickman made age-related remarks to plaintiff
and yelled profanities at him during the May 2015 ride-along. Accordingly, the Court
DENIES defendants’ motion for summary judgment with respect to plaintiff’s second
claim for age harassment in violation of FEHA.
4.

Retaliation for Complaining of Age Discrimination and
Harassment in Violation of FEHA

Plaintiff asserts in his third claim that CooperSurgical retaliated against him for
complaining of age discrimination, in violation of FEHA. Compl. ¶ 40. Just as in claims
for discrimination, California has adopted the McDonnell Douglas burden shifting test in
claims for retaliation. See Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042
(2005).
a.

Prima Facie Case

“[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must
show (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 at 1042 (citation omitted).

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 31 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

Defendants argue that plaintiff’s retaliation claim fails because he cannot establish
a causal connection between the termination of his employment and any protected
activity. MSJ at 28. In particular, three years passed between his September 2012
complaint to Augustine and the termination of his employment in August 2015. Id.
Importantly, defendants contend, neither Hickman nor Azarian knew about this complaint
and thus could not have been motivated by it. Id. Defendants further argue that
plaintiff’s May 2015 complaint about Hickman was not a protected complaint, as it did
not relate to age discrimination, and that Azarian’s initial decision to terminate plaintiff’s
employment was made in April 2015, before plaintiff’s May 2015 complaint. Id.
Plaintiff contends that he engaged in protected activity on three occasions: his
complaints to Augustine in 2012 and 2015, and his direct complaint to Hickman in 2013.
Opp’n at 22. Plaintiff asserts that within three months of the May 2015 complaint his
employment was terminated, and this timing strongly demonstrate retaliation. Id. Even
in the absence of close temporal proximity, plaintiff argues, the evidence demonstrates
that there was a pattern of conduct consistent with retaliatory intent, and that also
establishes a causal connection. Id. at 23. For example, after plaintiff made his May
2015 complaint, he was sent on another ride-along with Hickman in June 2015. Id.
Section 12940(h) of FEHA makes it an unlawful employment practice “[f]or any
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.” Though
plaintiff indisputably engaged in a protected activity when he made his 2012 age bias
complaint to Augustine regarding the September 2012 Performance Letter, this complaint
was made nearly three years before his employment was terminated. Accordingly, the
lack of proximity in time between the 2012 complaint and the 2015 employment
termination defeats any inference of causal connection between the two. See Jefferson v.
The Boeing Co., 675 F. App’x 672, 675 (9th Cir. 2017) (observing that adverse
employment action taken two years after protected activity failed to demonstrate
causality) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001) (“Action
taken ... 20 months later suggests, by itself, no causality at all.”)).
However, whether plaintiff’s May 2015 complaint to Augustine constituted
protected activity is a closer question. The undisputed facts reflect that in late May 2015,
plaintiff reported to Augustine that on the last day of his May ride-along Hickman blew
up at him, held his fists in the air, directed profanities at him, and yelled “I’m so mad at

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 32 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

you I could kill you!” PSF at no. 49; DSUF at no. 96. Augustine did not interpret
plaintiff’s complaint about Hickman to be related to perceived age harassment or
discrimination, DSUF at no. 108; Augustine Decl. ¶ 10 & Ex. 49. Augustine’s
contemporaneous notes of her interview with plaintiff do not reflect any reference to
plaintiff’s age, and she did not interpret plaintiff’s complaint about Hickman to be related
to perceived age harassment or discrimination. DSUF at no. 98; Augustine Decl. ¶ 10 &
Ex. 49. Although plaintiff stated in the first day of his deposition testimony that he
recalled reporting Hickman’s age-related remarks to her, Landig Depo. at 209:18-210:7,
the following question and plaintiff’s answer reflects that plaintiff was uncertain about
whether he actually reported Hickman’s remarks:
Q.

Did you report to Joanna Augustine that Mr. Hickman said to you, “I know
you are 60 and I know you were the oldest and highest paid sales employee
at Cooper”?

A.

I can’t for certain say that I said that to Joanne. I mean, I called her and I
talked about the exchange at the Marriott. But I don’t know if I mentioned
this or not. I can’t remember that.

Landig Depo. at 343:18-344:11. Nevertheless, plaintiff’s relative uncertainty
demonstrates a triable issue of material fact as to whether plaintiff engaged in protected
activity when he reported the May 2015 complaint to Augustine.
Even if plaintiff failed to report Hickman’s May 2015 age-related remarks to
Augustine, plaintiff’s 2015 complaint may have nevertheless constituted protected
activity if he “oppose[d] conduct that [he] reasonably and in good faith believe[d] to be
discriminatory, whether or not the challenged conduct is ultimately found to violate the
FEHA.” Yanowitz, 36 Cal.4th 1028 at 1043. With respect to this point, “[t]he relevant
question ... is not whether a formal accusation of discrimination is made but whether the
employee’s communications to the employer sufficiently convey the employee’s
reasonable concerns that the employer has acted or is acting in an unlawful
discriminatory manner.” Id. at 1047. Whether plaintiff’s formal accusation to Augustine
stemmed from plaintiff’s concern that Hickman’s conduct was harassing or
discriminatory, in violation of FEHA, is a matter better left to a jury. As the California
Supreme Court observed,

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 33 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

It is well established that a retaliation claim may be brought by an employee
who has complained of or opposed conduct that the employee reasonably
believes to be discriminatory, even when a court later determines the
conduct was not actually prohibited by the FEHA. … Strong policy
considerations support this rule. Employees often are legally
unsophisticated and will not be in a position to make an informed judgment
as to whether a particular practice or conduct actually violates the governing
antidiscrimination statute. A rule that permits an employer to retaliate
against an employee with impunity whenever the employee’s reasonable
belief turns out to be incorrect would significantly deter employees from
opposing conduct they believe to be discriminatory.
Yanowitz, 36 Cal.4th 1028 at 1043 (citations omitted). Considering the evidence in the
light most favorable to plaintiff, a reasonable jury could conclude that plaintiff’s May
2015 complaint to Augustine conveyed his reasonable concerns that Hickman’s conduct
was harassing or discriminatory, and accordingly, that the complaint was protected
activity.
With respect to the third prong, which requires a causal link between the protected
activity and the employer’s action, the Ninth Circuit has concluded that a two-month
proximity is “sufficient to establish a genuine issue of material fact as to whether a causal
link exists.” Arn v. News Media Grp., 175 F. App’x 844, 846 (9th Cir. 2006) (citing
Thomas v. City of Beaverton, 379 F.3d 802, 812 (9th Cir. 2004)). Here, defendants
contend that plaintiff reported his May 2015 complaint to Augustine “on or about May
28, 2015.” DSUF at no. 96. On or about the following day, Augustine spoke with
Hickman to ask him about the incident, and thereby put Hickman on notice that plaintiff
had made a complaint. DSUF at no. 97. Because Azarian and Hickman decided to move
forward with termination on August 9, 2015, the Court finds that this two-month, oneweek period between the protected activity and employment termination is sufficient to
establish a genuine issue of material fact regarding whether a causal link exists. Even if
Azarian had considered terminating plaintiff after the April 2015 plan and review
meeting, triable issues of material fact remain in light of the fact that Azarian and
Hickman made the final decision to terminate plaintiff a little over two months after
plaintiff’s complaint.
As the Court analyzed above, defendants offer a legitimate, nondiscriminatory
reason for terminating plaintiff’s employment. Nevertheless, the Court finds that

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 34 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

defendants are not entitled to summary judgment as to plaintiff’s retaliation claim.
Viewed in the light most favorable to plaintiff, the close temporal proximity between
plaintiff’s protected activity and his employment termination, along with Hickman’s poor
review of plaintiff’s June 2015 ride-along, raise a triable issue of material fact with
respect to pretext.
Accordingly, the Court DENIES summary judgment as to plaintiff’s third claim
for retaliation for complaining of age discrimination in violation of FEHA.
5.

Wrongful Termination of Employment in Violation of California
Public Policy

Plaintiff asserts in his eighth claim that CooperSurgical wrongfully terminated his
employment in violation of California public policy. Compl. ¶ 67. California law
recognizes a claim for wrongful termination in violation of a public policy reflected in a
statute or constitutional provision. Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 172
(1980) (“In a series of cases arising out of a variety of factual settings in which a
discharge clearly violated an express statutory objective or undermined a firmly
established principle of public policy, courts have recognized that an employer’s
traditional broad authority to discharge an at-will employee ‘may be limited by statute ...
or by considerations of public policy’ ” (citations omitted)); see also Kelly v. Methodist
Hospital of Southern California, 22 Cal.4th 1108, 1112, 95 (2000) (“Tameny claims
permit wrongful termination damages when a termination is undertaken in violation of a
fundamental, substantial and well-established public policy of state law grounded in a
statute or constitutional provision”); Gantt v. Sentry Insurance, 1 Cal.4th 1083, 1094–95,
(1992) (same), disapproved on other grounds in Green v. Ralee Engineering Co., 19 Cal.
4th 66, 78 (1998).
Plaintiff bears the burden of identifying the specific statute on which he bases his
wrongful termination claim. Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146, 1189
(C.D. Cal. 2013) (citations omitted). Plaintiff’s wrongful termination claim is premised
on violations of California Labor Code section 1102.5 and on violations of FEHA.21
Compl. ¶¶ 67. FEHA’s prohibition against age discrimination in employment sufficiently

21

Plaintiff may properly rely on section 1102.5 as a statutory predicate for his
wrongful termination claim. See Day, 930 F. Supp. 2d 1146 at 1190-91.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 35 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

establishes a fundamental public policy against such discrimination for purposes of a
wrongful discharge claim. See Stevenson v. Superior Court, 16 Cal.4th 880, 898 (1997).
In assessing a claim for wrongful termination in violation of public policy,
“California courts apply the burden shifting analysis as set forth in McDonnell Douglas.”
Velto v. Draeger Medical, Inc., No. 06-CV-5190-RBL, 2007 WL 4376200, *3 (W.D.
Wash. Dec. 13, 2007), citing Nelson v. United Technologies, 74 Cal. App. 4th 597, 613
(1999); see also Loggins v. Kaiser Permanente Intern., 151 Cal. App. 4th 1102, 1108–09
(2007) (“When a plaintiff alleges retaliatory employment termination ... as a claim for
wrongful employment termination in violation of public policy, and the defendant seeks
summary judgment, California follows the burden shifting analysis of McDonnell
Douglas Corp.”). Because plaintiff premises his wrongful termination claim on
defendants’ alleged violations of FEHA, for the same reasons set forth in the Court’s
analysis of plaintiff’s age discrimination claim, plaintiff raises triable issues of fact
regarding pretext here. Therefore, the Court DENIES summary judgment as to plaintiff’s
eighth claim for wrongful termination.
E.

Violations of California Labor Code § 1102.5

Plaintiff asserts in his ninth claim that CooperSurgical violated California Labor
Code section 1102.5. Compl. ¶ 74. In order to establish a prima facie case for a violation
under section 1102.5, “a plaintiff must show (1) [he] engaged in a protected activity, (2)
[his] employer subjected [him] to an adverse employment action, and (3) there is a causal
link between the two.” Mokler v. County of Orange, 157 Cal. App. 4th 121, 138 (2007)).
Because the Court concludes in its analysis above that triable issues of material
fact exist with respect to plaintiff’s prima facie case for retaliation—the same test as the
one at issue here—the Court DENIES summary judgment with respect to plaintiff’s ninth
claim for violation of California Labor Code section 1102.5.
V.

CONCLUSION

In accordance with foregoing, the Court GRANTS in part and DENIES in part
defendants’ motion for summary judgment.22

22

While the Court is somewhat skeptical of the viability of certain FEHA claims
alleged herein, the Court concludes that these claims are better decided after hearing the

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 36 of 37 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-07144-CAS(KSx)
Date November 20, 2017
CHRISTOPHER LANDIG v. COOPERSURGICAL, INC. ET AL.

The Court GRANTS summary judgment as to plaintiff’s fourth, fifth, sixth, and
seventh claims. The Court DENIES summary judgment as to plaintiff’s first, second,
third, eighth, ninth, and tenth claims.
IT IS SO ORDERED.
00 
Initials of Preparer

: 

10 

                        CMJ 

evidence in this case, particularly in light of the fact that the evidence is so intertwined.
If appropriate, the Court will consider whether judgment under Rule 50 is appropriate
with respect to these claims.

CV-07144 (11/17)

CIVIL MINUTES - GENERAL

Page 37 of 37