Castillo v. JBT Property Management, Inc. et al

Filing 42

ORDER granting #34 Motion for Summary Judgment and directing Clerk to enter Judgment in favor of Defendant signed by District Judge Lawrence J. O'Neill on 9/24/2014. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CRISTOBAL CASTILLO,

1:13-CV-00412-LJO-BAM

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Plaintiff,

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ORDER ON MOTION FOR SUMMARY
JUDGMENT
(Docs. 34)

v.

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GAIL GARRETT, JBT PROPERTY
12 MANAGEMENT COMPANY, INC., and DOES
1 – 30,
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Defendants.

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INTRODUCTION

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Plaintiff Cristobal Castillo (“Castillo”) brings this action against his former employer JBT

18 Property Management Company, Inc. (“JBT”) and Gail Garrett (“Garrett”) for race, color, national
19 origin, and age discrimination, retaliation, unfair competition, intentional infliction of emotional
20 distress, negligent infliction of emotional distress, and negligent supervision. Before the Court is
21 Defendant JBT’s motion for summary judgment of Castillo’s complaint. For the reasons discussed
22 below, the Court GRANTS JBT’s motion for summary judgment of Castillo’s complaint in its entirety.
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BACKGROUND
A.

Facts Alleged in First Amended Complaint
Castillo is a Latino male from El Salvador and is 56 years old. Castillo was employed by

26 JBT as a maintenance technician from 2010 until his termination on September 7, 2012.
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Castillo alleges that Garrett, another JBT employee, made comments to Castillo regarding

28 age and stated that JBT needed to hire new employees who were young because they could work in the
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sun.

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Castillo alleges that JBT on two occasions terminated older Hispanic employees and
replaced them with employees who were younger and/or Caucasian.

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Castillo alleges that he complained to Garrett and to JBT maintenance supervisor James

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Heistand (“Heistand”).

Specifically, Castillo alleges he complained to Heistand about Garrett’s

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remarks and that he complained to Garrett about the terminations of older JBT employees.

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Castillo alleges that Garrett was upset and angry about Castillo’s complaints and that Garrett

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treated him differently from similarly situated Caucasian employees on the basis of Castillo’s race and

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in retaliation for Castillo’s complaints. Castillo alleges that Garrett failed to make Castillo a supervisor

10 even though he was employed as a supervisor by his previous employer and his previous employer
11 recommended him for a supervisory position. Instead, Garrett made Heistand, who is Caucasian, a
12 supervisor.
Castillo alleges that he began receiving false negative performance evaluations from Garrett

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14 in or around 2011 and that his previous evaluations have been positive. Castillo alleges that Garrett
15 gave him false negative evaluations in retaliation for his complaints and because of his race, color,
16 national origin, and age. Specifically, Castillo alleges that, in or about 2011, Garrett falsely accused
17 Castillo of excessive absences and issued false negative performance evaluations to Castillo. In the
18 same evaluation, Garrett also allegedly falsely accused Castillo of having to be reminded of time
19 constraints and his other job responsibilities, of self-prioritizing tasks based on what he enjoys doing
20 rather than the needs of the property at which he worked, of difficulties in getting along with some of
21 his co-workers, and of challenging Garrett’s authority. Castillo alleges the false negative evaluations
22 were a pretext for terminating him on the basis of his age, race, color, and national origin.
On September 7, 2012, shortly after Castillo called in sick on Labor Day, JBT terminated

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24 Castillo from employment.
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B.

Procedural History
Castillo filed his original complaint in this case on March 19, 2013. (Doc. 1). This Court

27 granted Castillo’s motion to proceed in forma pauperis on March 26, 2013. (Doc. 5). Castillo filed the
28 operative first amended complaint on September 16, 2013. Defendants filed an answer to the operative
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complaint on October 2, 2013. (Doc. 15). On January 14, 2014, this Court on the basis of Castillo’s

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notice of voluntary dismissal under Fed. R. Civ. P. 41 dismissed without prejudice all claims against

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Defendant Garrett. (Doc. 30).

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On July 17, 2014, JBT filed the instant motion for summary judgment as to Castillo’s

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complaint. (Doc. 34). Castillo filed an opposition to the motion for summary judgment on July 31,

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2014. JBT filed a reply on August 7, 2014.

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DISCUSSION

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Motion for Summary Judgment

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A.

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Legal Standard
Fed .R. Civ. P. 56(b) permits a “party against whom relief is sought” to seek “summary

11 judgment on all or part of the claim.” “A district court may dispose of a particular claim or defense by
12 summary judgment when one of the parties is entitled to judgment as a matter of law on that claim or
13 defense.” Beal Bank, SSB v. Pittorino, 177 F.3d 65, 68 (1st Cir. 1999).
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Summary judgment is appropriate when there exists no genuine issue as to any material fact

15 and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2); Matsushita
16 Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec.
17 Contractors Assn., 809 F.2d 626, 630 (9th Cir. 1987). The purpose of summary judgment is to “pierce
18 the pleadings and assess the proof in order to see whether there is a genuine need for trial.” Matsushita
19 Elec., 475 U.S. at 586, n. 11; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401,
20 1405 (9th Cir. 1985).
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The evidence of the party opposing summary judgment is to be believed, and all reasonable

22 inferences that may be drawn from the facts before the court must be drawn in favor of the opposing
23 party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita, 475 U.S. at 587. The
24 inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or
25 whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–
26 252.
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To carry its burden of production on summary judgment, a moving party “must either

28 produce evidence negating an essential element of the nonmoving party’s claim or defense or show
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that the nonmoving party does not have enough evidence of an essential element to carry its ultimate

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burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099,

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1102 (9th Cir. 2000); see, High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574

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(9th Cir. 1990). “[T]o carry its ultimate burden of persuasion on the motion, the moving party must

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persuade the court that there is no genuine issue of material fact.” Nissan Fire, 210 F.3d at 1102; see

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High Tech Gays, 895 F.2d at 574. “As to materiality, the substantive law will identify which facts are

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material.” Anderson, 477 U.S. at 248. “Only disputes over facts that might affect the outcome of the

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suit under the governing law will properly preclude the entry of summary judgment.” Id.

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“If a moving party fails to carry its initial burden of production, the nonmoving party has no

10 obligation to produce anything, even if the nonmoving party would have the ultimate burden of
11 persuasion at trial.” Nissan Fire, 210 F.3d at 1102–1103; see, Adickes v. S. H. Kress & Co., 398 U.S.
12 144, 160 (1970). “If, however, a moving party carries its burden of production, the nonmoving party
13 must produce evidence to support its claim or defense.” Nissan Fire, 210 F.3d at 1103; see, High Tech
14 Gays, 895 F.2d at 574. “If the nonmoving party fails to produce enough evidence to create a genuine
15 issue of material fact, the moving party wins the motion for summary judgment.” Nissan Fire, 210
16 F.3d at 1103; see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“Rule 56(c) mandates the entry
17 of summary judgment, after adequate time for discovery and upon motion, against a party who fails to
18 make the showing sufficient to establish the existence of an element essential to that party’s case, and
19 on which that party will bear the burden of proof at trial.”)
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“But if the nonmoving party produces enough evidence to create a genuine issue of material

21 fact, the nonmoving party defeats the motion.” Nissan Fire, 210 F.3d at 1103; see, Celotex, 477 U.S.
22 at 322. “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to
23 require a jury or judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v.
24 Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Service Co., 391
U.S. 253, 288–289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). “The mere existence of a scintilla of
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evidence in support of the plaintiff's position will be insufficient.” Anderson, 477 U.S. at 252.
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“In cases that involve ... multiple causes of action, summary judgment may be proper as to
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some causes of action but not as to others, or as to some issues but not as to others, or as to some
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parties, but not as to others.” Barker v. Norman, 651 F.2d 1107, 1123 (5th Cir. 1981); see also, Robi v.

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Five Platters, Inc., 918 F.2d 1439 (9th Cir. 1990); Cheng v. Commissioner Internal Revenue Service,

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878 F.2d 306, 309 (9th Cir. 1989). A court “may grant summary adjudication as to specific issues if it

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will narrow the issues for trial.” First Nat'l Ins. Co. v. F.D.I.C., 977 F.Supp. 1051, 1055 (S.D. Cal.

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1977).

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B.

Analysis

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Castillo brings eleven causes of action under state and federal law against JBT.

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Castillo alleges that JBT unlawfully discriminated against him on the basis of his race, color,

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national origin, and age in violation of 42 U.S.C. § 2000 et seq. (“Title VII”), California’s Fair

10 Employment and Housing Act, Cal. Gov. Code § 12900 et seq. (“FEHA”), and Article I, § 8 of the
11 California Constitution. Castillo alleges that JBT unlawfully discriminated against him on the basis of
12 his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”)
13 and that JBT aided and abetted discrimination in violation of FEHA.
Castillo further alleges that JBT unlawfully retaliated against him for expressing opposition

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15 to JBT’s discriminatory conduct.
Castillo also alleges that JBT violated 42 U.S.C. § 1981 by subjecting Castillo to

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17 discrimination on the basis of race, color, national origin, and age and by retaliating against him.
In addition, Castillo alleges that JBT engaged in negligent supervision and failure to train

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19 employees.
Finally, Castillo alleges that JBT engaged in unfair competition in violation of California’s

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21 Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”), and brings claims for
22 intentional infliction of emotional distress (“IIED”) and negligent infliction of emotional distress
23 (“NIED”) against JBT.
1.

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Discrimination Claims
i.

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Title VII1

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JBT argues that this Court lacks jurisdiction over Castillo’s Title VII claims relating to race or color because the “Race”

27 and “Color” boxes were not checked in his EEOC charge of discrimination. In Castillo’s charge, he checks the “National
Origin” box and states that “I believe I have been discriminated against on the basis of my age (55) and national origin

28 (Hispanic), in violation of [the ADEA and Title VII].” (Doc. 34 Exh. B). Castillo’s claims for race and color
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In his first cause of action, Castillo alleges that JBT discriminated against him on the basis of
his race, color, national origin, and age.

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Under Title VII, it is unlawful for an employer “to discharge any individual, or otherwise to

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discriminate against any individual with respect to his compensation, terms, conditions, or privileges of

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employment, because of such individual's race, color, religion, sex, or national origin[.]” 42 U.S.C.A.

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§ 2000e-2(a)(1).

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Specifically, Castillo alleges that JBT engaged in unlawful discrimination by “harassing him

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and by failing to remediate co-worker harassment against him, undermining his supervisorial authority,

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threatening him with adverse action, subjecting him to false negative performance appraisals,

10 removing him from his job, replacing him with a less qualified, younger white male, all without
11 justification, in violation of Title VII[.]” (Compl. § 35).
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The language of the anti-discrimination provision in Title VII on its face does not protect

13 against age-based discrimination. 42 U.S.C.A. § 2000e-2(a)(1). Moreover, the Ninth Circuit has held
14 that the exclusive enforcement mechanism under federal law for workplace age discrimination claims
15 was the ADEA. Ahlmeyer v. Nevada Sys. of Higher Educ., 555 F.3d 1051, 1058 (9th Cir. 2009) (“The
16 comprehensive remedial scheme of the ADEA demonstrates that Congress intended the ADEA to
17 serve as the exclusive means for pursuing claims of age discrimination in employment.”). Therefore,
18 the Court will address Castillo’s remaining allegations of discrimination on the basis of race, color, and
19 national origin in violation of Title VII.

These allegations can be grouped into a hostile work

20 environment claim and a disparate treatment claim.
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Hostile Work Environment Claim

Castillo alleges that JBT created a hostile work environment on account of his race, color,

23 and national origin by harassing him and failing to remediate harassment against him. (Compl. § 35).
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To establish the prima facie hostile work environment claim under either Title VII Castillo

25 must raise a triable issue of fact as to whether (1) he was subjected to verbal or physical conduct
26 because of his race, (2) the conduct was unwelcome, and (3) the conduct was sufficiently severe or
27 discrimination can be reasonably expected to grow out of his statement on his charge that he believes he was discriminated
against because he is “Hispanic.” B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1100 (9th Cir. 2002). Therefore, the Court

28 does not lack jurisdiction over Castillo’s claims for race and color discrimination in violation of Title VII.
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pervasive to alter the conditions of his employment and create an abusive work environment. Manatt

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v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003) (internal quotations and citations omitted). The

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Supreme Court has instructed that “[w]orkplace conduct is not measured in isolation; instead, ‘whether

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an environment is sufficiently hostile or abusive’ must be judged ‘by ‘looking at all the circumstances,’

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including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening

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or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an

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employee's work performance.’” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001)

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(quoting Faragher v. Boca Raton, 524 U.S. 775, 787-88 (1998); Harris v. Forklift Systems, Inc., 510

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U.S. 17, 23 (1993)). “Hence, ‘a recurring point in our opinions is that simple teasing, offhand

10 comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes
11 in the ‘terms and conditions of employment.’” Id. (quoting Faragher, 524 U.S. at 788).
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Castillo alleges no facts and offers no evidence to show that JBT engaged in harassment

13 against him on account of his race, color, and national origin. Castillo alleges that JBT had policy of
14 speaking English only at the workplace.

However, Castillo fails to show how this constitutes

15 harassment on the basis of race, color, or national origin. Castillo also summarily alleges that Garrett
16 “singled out Plaintiff’s race” and “subjected him to harassment, retaliation, and a hostile work
17 environment[.]” (Compl. ¶ 21). Castillo offers no evidence as to any racially motivated acts of
18 harassment that Garrett committed against him.
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Castillo fails to allege any relevant facts or to provide any evidence to show that JBT

20 subjected him to any harassment, let alone severe or pervasive harassment, on the basis of his race,
21 color, or national origin. Therefore, Castillo comes nowhere close to establishing a prima facie case of
22 harassment under Title VII.
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2.

Disparate Treatment Claim

Castillo further alleges that JBT discriminated against him by “undermining his supervisorial

25 authority, threatening him with adverse action, subjecting him to false negative performance
26 appraisals, removing him from his job, replacing him with a less qualified, younger white male, all
27 without justification, in violation of Title VII[.]” (Compl. § 35). These allegations “may be analyzed
28 under the disparate treatment model, which applies when an individual [has been] singled out and
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treated less favorably than others similarly situated on account of [race, color, sex, or national origin].”

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Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir. 1988) (internal quotation and citation

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omitted).

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The Ninth Circuit has adopted the McDonnell Douglass burden-shifting test in evaluating
disparate treatment cases:
In order to prevail in a Title VII disparate treatment case, a plaintiff must first establish
a prima facie case of discrimination. The burden of production then shifts to the
defendant to articulate a legitimate nondiscriminatory reason for the adverse
employment decision. If the defendant carries its burden, the plaintiff is then afforded
an opportunity to demonstrate that the “‘assigned reason’ was ‘a pretext or
discriminatory in its application.

10 Diaz v. American Tel. & Tel., 752 F.2d 1356, 1358-59 (9th Cir. 1985) (quoting McDonnell Douglas
11 Corp. v. Green, 411 U.S. 792, 807 (1973)). “However, ‘[t]he ultimate burden of persuading the trier of
12 fact that the defendant intentionally discriminated against the plaintiff remains at all times with the
13 plaintiff.’” Pejic, 840 F.2d at 672 (quoting Texas Dep’t. of Comm. Affairs v. Burdine, 450 U.S. 248,
14 253, (1981); Casillas v. United States Navy, 735 F.2d 338, 342 (9th Cir.1984)).

“Direct or

15 circumstantial proof of discriminatory motive is required.” Pejic, 840 F.2d at 672 (internal quotation
16 and citation omitted).

“Direct evidence is evidence which, if believed, proves the fact [of

17 discriminatory animus] without inference or presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d
18 1217, 1221 (9th Cir.1998).
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Castillo appears to complain of three instances of disparate treatment by JBT. The Court

20 will address them accordingly.
a.

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Maintenance Supervisor Position

Castillo testified that he was the maintenance lead at his prior place of employment, and that

23 JBT denied him the position of maintenance lead when he began employment for JBT. (Castillo Dep.
24 30:2-33:21). JBT hired another individual, JH, who is Caucasian for the position of maintenance
25 supervisor. Id.
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Assuming with deciding that Castillo establishes a prima facie case of discrimination on the

27 basis of race, color, and national origin, JBT puts forth a legitimate nondiscriminatory reason for hiring
28 JH as maintenance supervisor, and Castillo fails to demonstrate that the reason was pretext or
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discriminatory in its application. Diaz, 752 F.2d at 1358-59; McDonnell Douglas, 411 U.S. at 807.

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Matt Dobbins (“Dobbins”) is and has been the President of JBT at all relevant times. Dobbins testified

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that JH was previously employed as a maintenance supervisor, and that he hired JH as maintenance

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supervisor at JBT based on his qualifications, in-person interview, and positive endorsement from JH’s

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previous employer. (Dobbins Dep. ¶ 7). JBT also provides as evidence Castillo’s application for

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employment at JBT. (Doc. 34 Exh. L). Castillo’s application shows that his “Position Desired” at JBT

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was “Maintenance Tech” and not maintenance supervisor or maintenance lead. Id. Dobbins further

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testified that, after JH voluntarily resigned from JBT, Dobbins determined that the maintenance

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supervisor position was unnecessary and therefore did not hire anyone to fill the supervisor position for

10 the duration of Castillo’s employment. (Dobbins Dep. ¶ 7). JBT therefore carries its burden of
11 providing a legitimate nondiscriminatory reason for not hiring Castillo as maintenance supervisor.
12 Castillo, however, alleges no facts and provides no evidence to show that JBT’s proffered reasons were
13 pretext or discriminatory in their application. Diaz, 752 F.2d at 1358-59; McDonnell Douglas, 411
14 U.S. at 807.
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b.

Negative Performance Evaluations and Warnings

Castillo alleges that he received positive performance evaluations from JBT through 2010,

17 and that, starting in or about 2011, he started receiving negative evaluations from Garrett. (Compl. ¶
18 23). Castillo asserts that the negative evaluations were “false” and were “because of Plaintiff’s race,
19 color, [and] national origin[.]” (Compl. ¶ 24).
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However, the evidence shows that Castillo was given two performance evaluations during

21 his employment at JBT and neither of them was negative. (Doc. 34 Exhs. M, N). Castillo’s 30-day
22 performance review from Garrett, dated August 12, 2010, rated his job performance as “Standard” in
23 all categories. (Doc. 34 Exh. M). Castillo’s annual performance evaluation from Garrett, dated April
24 26, 2011, ranked him as “Good” or “Satisfactory” in all categories. (Doc. 34 Exh. N).
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The evidence also shows that, on Castillo’s annual performance evaluation, under

26 “Comments” in the “Attendance and punctuality” category, Garrett wrote that “Your attendance is
27 starting to suffer. You are using your vacation time because you have used all your sick time. This is
28 considered excessive. (See attached schedule of vacation & sick accruals.” (Doc. 34 Exh. N). Garrett
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also wrote the following under “Comments:” “I have to remind you of time constraints an your other

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job responsibilities;” “Please remember that I am your direct supervisor and you should not challenge

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my authority. If you have a problem we can discuss it;” and “You have a tendency to self-prioritize

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tasks based on what you enjoy doing rather than according to the needs of the property.” 2 Id. Castillo

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alleges that Garrett “falsely accused” him of the above “because of his race color, [and] national

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origin.” (Compl. ¶¶ 25-26). However, Castillo alleges no facts and presents no evidence to show that

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Garrett’s comments on his annual performance evaluation were made on account of his race, color, or

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national origin, or that similarly situated employees of another race, color, or national origin were

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assessed differently in their performance evaluations.

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Accordingly, Castillo fails to establish a prima facie case of discrimination on the basis of

11 race, color, or national origin in this performance evaluations by JBT. Diaz, 752 F.2d at 1358-59;
12 McDonnell Douglas, 411 U.S. at 807.
c.

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Termination

Castillo alleges that his termination from employment at JBT constitutes disparate treatment

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15 on account of his race, color, and national origin in violation of Title VII. (Compl. ¶ 27).
Even if Castillo can establish a prima facie case of disparate treatment, JBT presents

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17 evidence of a legitimate non-discriminatory reason for Castillo’s termination, and Castillo fails to
18 present evidence to show that the reason was pretext. Diaz, 752 F.2d at 1358-59; McDonnell Douglas,
19 411 U.S. at 807.
JBT presents evidence to show that Dobbins, the President of JBT, ultimately made the

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21 decision to terminate Castillo “based on his continued absences.” (Doc. 34 Exh. G ¶ 16). In his
22 declaration, Dobbins stated that he noticed in or around June 2011 that maintenance technicians at the
23 property where Castillo worked were falling behind in work orders and move-outs because he received
24 purchase orders showing that management was hiring outside vendors to complete work that should
25 have been performed by maintenance technicians. Id. at ¶ 12. Dobbins obtained a breakdown of
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The Court notes that, despite the comments, Garrett nonetheless rated Castillo’s performance as “Good” or “Satisfactory”

27 in each category, and gave Castillo positive comments, including the following: “I feel that you understand the importance
of the job;” “You keep a clean work space when doing your job;” and “I feel you are very organized when it comes to

28 taking care of your tools.” (Doc. 34 Exh. N).

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absences for three maintenance technicians, including Castillo, who had taken absences for illness or

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doctor’s appointments in excess of their accrued sick leave from Judith Rhea (“Rhea”) who was

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responsible for payroll. Id. Dobbins met jointly with the three maintenance technicians, including

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Castillo, on July 14, 2011 to discuss the importance of attendance and to establish that continued

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absences would not be tolerated. Id. at ¶ 13. At that time, Castillo had already received a warning

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regarding his attendance and that using his vacation time because he had used all of his sick time was

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considered excessive. (Doc. 34 Exh. N). One of the other maintenance technicians with noted

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attendance issues, “ET,” had made it known to JBT during the hiring process that he has a medical

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condition that JBT determined was protected by state and federal law and for which JBT agreed to

10 provide reasonable accommodation in the form of a certain amount of days off. (Doc. 34 Exh. H ¶ 14).
11 The other maintenance technician with noted attendance issues, “MM,” immediately showed
12 improvement and did not exceed available sick leave at any time after he received the warning about
13 attendance. Id. at ¶ 15. JBT presents evidence that, unlike MM, Castillo’s attendance did not improve
14 and that he continued to take time off above and beyond his accrual. Id. Castillo was scheduled to
15 work on Labor Day, September 5, 2011. (Doc. 34 Exh. G. ¶ 14). On the morning of September 5,
16 2011, Castillo called in sick to work. Id. When Garrett notified Dobbins that Castillo had called in
17 sick, Dobbins reviewed Castillo’s personnel file and time records. Id. at ¶ 15-16. Dobbins found that
18 Castillo had already exceeded his available sick leave by more than twenty hours in 2011 and that, as
19 soon as Castillo accrues enough sick leave to cover a day off, he calls in sick. Id. Dobbins felt this
20 was a pattern and that Castillo’s calling in sick on a holiday was suspicious. Id. Dobbins therefore
21 made the ultimate decision to terminate Castillo based on his continued absences. Id. Dobbins stated
22 in this declaration that “[i]t was and is unacceptable to me that [JBT] had to hire outside vendors to
23 perform the primary duties of our employees[,] and I determined that we needed someone in the
24 position of maintenance technician who could demonstrate regular and reliable attendance, something
25 that Mr. Castillo did not do.” Id. at ¶ 16.
26

Castillo presents no evidence to show that JBT’s proffered nondiscriminatory reasons for his

27 termination are pretext or discriminatory in their application. Diaz, 752 F.2d at 1358-59; McDonnell
28 Douglas, 411 U.S. at 807. In fact, JBT introduces evidence to show that four employees were
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terminated during Castillo’s employment at JBT, and that Castillo was the only terminated employee

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who is Hispanic. (Doc. 34 Exh. H ¶¶ 16-17).

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For the reasons discussed above, Castillo fails to show a genuine issue of material fact in his

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claims for disparate treatment on account of race, color, or national origin in violation of Title VII

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under the McDonnell Douglass burden-shifting framework. Diaz, 752 F.2d at 1358-59; McDonnell

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Douglas, 411 U.S. at 807.

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environment on account of his race, color, or national origin in violation of Title VII. Accordingly,

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JBT’s motion for summary adjudication as to Castillo’s first cause of action under Title VII is

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GRANTED.

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ii.

Castillo also fails to establish a prima facie case of hostile work

FEHA

In his fifth cause of action, Castillo alleges that JBT created a hostile work environment and

12 subjected him to disparate treatment on account of his race, color, national origin, and age in violation
13 of California’s FEHA. (Compl. ¶ 51).
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In his seventh cause of action, Castillo alleges that JBT aided and abetted discrimination and

15 a hostile work environment in violation of FEHA. (Compl. ¶ 56).
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JBT argues that Castillo’s FEHA claims fail because Castillo failed to exhaust administrative

17 remedies as required to bring an action under FEHA. ‘“Before filing a civil action alleging FEHA
18 violations, an employee must exhaust his or her administrative remedies with DFEH.’” Kim v. Konad
19 USA Distribution, Inc., 226 Cal. App. 4th 1336, 1345 (Cal. Ct. App. 2014) (quoting Wills v. Superior
20 Court, 195 Cal.App.4th 143, 153 (2011)). “Exhaustion includes the timely filing of administrative
21 complaints addressing the claims and parties at issue, as well as the procurement of right-to-sue
22 letters.” Id. (citing Romano v. Rockwell Internat., Inc., 14 Cal.4th 479, 492 (1996)). It is undisputed
23 that Castillo filed a charge of discrimination with the EEOC and received a right-to-sue notice from the
24 EEOC. However, there is no evidence that Castillo filed a complaint with the Department of Fair
25 Employment and Housing (“DFEH”), and Castillo does not allege that he ever filed such a complaint.
26 California courts have held that an EEOC right-to-sue notice does not satisfy administrative exhaustion
27 requirements for the California FEHA. Dang v. Solar Turbines Inc., 452 F. App’x 804 (9th Cir. 2011)
28 (citing Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718 (Cal. Ct. App. 1994).
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Therefore, Castillo’s right-to-sue letter from the EEOC is insufficient to show that he exhausted his

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administrative remedies as required to bring a civil case under FEHA.

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Because Castillo fails to raise a genuine issue of material fact as to his failure to exhaust

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administrative remedies as to his FEHA claims, JBT’s motion for summary adjudication as to

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Castillo’s fifth and seventh causes of action under FEHA is GRANTED.

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iii.

ADEA

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The ADEA makes it unlawful for “an employer” to “discriminate against any individual with

8

respect to his compensation, terms, conditions, or privileges of employment, because of such

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individual's age[.]” 29 U.S.C. § 623(a). The ADEA defines “employer” as “a person engaged in an

10 industry affecting commerce who has twenty or more employees for each working day in each of
11 twenty or more calendar weeks in the current or preceding calendar year[.]” 29 U.S.C. § 630(b).
12

JBT submits as evidence Employment Development Department (“EDD”) Reports from JBT

13 to the state of California showing that, from the quarter ending June 30, 2010 through the quarter
14 ending December 31, 2011, JBT never employed more than seventeen employees. (Doc. 34 Exh. T).
15 Dobbins, the President of JBT, also stated in his deposition that JBT has never employed more than
16 seventeen employees. (Doc. 34 Exh. G ¶ 8). Castillo presents no evidence to contradict either of
17 these.
18

Therefore, there is no genuine issue of material fact that the ADEA does not apply to JBT

19 because JBT is not an “employer” under the definition of the ADEA.

29 U.S.C. § 630(b).

20 Accordingly, JBT’s motion for summary adjudication as to Castillo’s fourth cause of action under the
21 ADEA is GRANTED.
22
23

2.

Retaliation Claim

In his second cause of action, Castillo alleges that JBT retaliated against him for expressing

24 opposition to discrimination in the workplace in violation of Title VII. (Compl. ¶ 43).
25

“[C]laims for Title VII retaliation are subject to the McDonnell Douglas burden-shifting

26 analysis used at summary judgment to determine whether there are triable issues of fact for resolution
27 by a jury.” Gaub v. Prof’l Hosp. Supply, Inc., 845 F. Supp. 2d 1118, 1129 (D. Idaho 2012) (citing
28 Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464–65 (9th Cir. 1994)).
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“To make out a prima facie case of retaliation, an employee must show that (1) he engaged

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in a protected activity; (2) his employer subjected him to an adverse employment action; and (3) a

3

causal link exists between the protected activity and the adverse action.” Ray v. Henderson, 217 F.3d

4

1234, 1240 (9th Cir. 2000) (citing Steiner, 25 F.3d at 1464).

5

Castillo fails to show that he engaged in any protected activity.

Making an informal

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complaint to a supervisor is a protected activity. Id. at n. 3 (internal citation omitted). An employee’s

7

complaints about the treatment of others is considered a protected activity, even if the employee is not

8

a member of the class that he claims suffered from discrimination, and even if the discrimination he

9

complained about was not legally cognizable. Id. Here, Castillo’s alleged protected activity is that, on

10 one occasion, he complained about Garrett’s conduct to Dobbins. (Castillo Dep. pp. 64-66). Castillo
11 testified that he complained to Dobbins that Garrett “was rude[.]” Id. at p. 64. Castillo testified that he
12 never expressed to Dobbins that Garrett’s comments were discriminatory or were related to Castillo’s
13 age. Id. Castillo testified that he told Dobbins that “she was just rude, that was all.” Id. at p. 66.
14 Castillo also testified that Garrett made racial remarks regarding Indian, Chinese, and African
15 American people, but that he never complained to anyone about Garrett’s race-related remarks. Id. at
16 p. 88. Therefore, none of Castillo’s conduct amounts to any protected activity.
17

Because Castillo fails to establish a prima facie case for retaliation, JBT’s motion for

18 summary adjudication as to Castillo’s second cause of action for retaliation in violation of Title VII is
19 GRANTED. Steiner, 25 F.3d at 1464.
20
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3.

42 U.S.C. § 1981

In his third cause of action, Castillo alleges that, “[i]n subjecting Plaintiff to racial, color,

22 national origin, and age discrimination and retaliation, Defendants deprived Plaintiff of his civil rights,
23 in violation of the U.S. Constitution and 42 U.S.C. § 1981.” (Compl. ¶ 45).
24

The Ninth Circuit applies the McDonnell Douglas burden-shifting framework for Title VII

25 and § 1981 claims. Surrell v. California Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008) (citing
26 Metoyer v. Chassman, 504 F.3d 919, 930 (9th Cir. 2007)). The Court’s analyses of Castillo’s claims
27 for discrimination and retaliation under Title VII therefore equally apply to Castillo’s claims for
28 discrimination and retaliation under § 1981. For the same reasons that Castillo’s Title VII claims fail
14

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to survive summary judgment, Castillo’s § 1981 claims likewise are insufficient.
Accordingly, JBT’s motion for summary adjudication as to Castillo’s third cause of action
for discrimination and retaliation under 42 U.S.C. § 1981 is GRANTED.
4.

Claims Related to Discrimination
i.

Negligent Supervision/Failure to Train

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In his eleventh cause of action, Castillo alleges that JBT engaged in negligent supervision

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and failed to train its employees regarding discrimination, disparate treatment, retaliation, and hostile

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work environment and caused Castillo injury. (Compl. ¶¶ 81-91).

9

The basic elements required for an action in tort under California law are similar to those

10 required elsewhere; a plaintiff must establish that a duty to use care was owed plaintiff by defendant;
11 that the duty owed was breached; that the breach was a proximate cause of harm to plaintiff; and that
12 plaintiff was in fact damaged. See, generally, 4 Witkin, Summary of California Law (8th ed. 1974),
13 “Torts.” Castillo makes no allegations as to the alleged discrimination he suffered in this cause of
14 action that is in addition to his Title VII, FEHA, § 1981, and ADEA allegations. (Compl. ¶¶ 81-91).
15 As discussed above, Castillo fails to provide evidence to create a genuine issue of material fact as to
16 whether he suffered discrimination, disparate treatment or hostile work environment.

Therefore,

17 Castillo cannot show that he was in fact damaged by JBT’s alleged failure to train its employees
18 regarding discrimination, disparate treatment, retaliation, and hostile work environment.

Castillo

19 likewise cannot show any alleged wrongful conduct by JBT was the proximate cause of harm to
20 Castillo resulting from discrimination, disparate treatment or hostile work environment.
21

Because Castillo fails to show a genuine issue of material fact as to two essential elements of

22 a tort claim under California law, JBT’s motion for summary adjudication as to Castillo’s eleventh
23 cause of action for negligent supervision and failure to train is GRANTED.
24
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ii.

California Constitution Art. I § 8/Wrongful Termination

In his sixth cause of action, Castillo alleges that JBT discriminated against him “on the

26 grounds of his race, color, national origin, and age” and thereby deprived him “of equal employment
27 opportunity and of the rights, privileges, and opportunities guaranteed under the Constitution of the
28 State of California.” (Compl. ¶ 54).

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The constitutional provision cited by Castillo in his sixth cause of action, Article I § 8,

2

provides that “[a] person may not be disqualified from entering or pursuing a business, profession,

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vocation, or employment because of sex, race, creed, color, or national or ethnic origin.” Cal. Const.

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art. I, § 8. Article I § 8 does not protect against disqualification based on age.

5

The Ninth Circuit has instructed that “a claim brought directly under Article I, § 8 of the

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California Constitution may only be brought where a plaintiff has been denied entrance into a

7

profession or particular employment or terminated from the same.”

8

Permanente Med. Grp., 79 F.3d 859, 871 (9th Cir. 1996). California courts also have held that Article

9

I § 8 may support a wrongful discharge in violation of public policy claim. Sistare-Meyer v. Young

Strother v. S. California

10 Men's Christian Assn., 58 Cal. App. 4th 10, 14 (Cal. Ct. App. 1997); Phillips v. St. Mary Reg'l Med.
11 Ctr., 96 Cal. App. 4th 218, 230 (Cal. Ct. App. 2002) (“Courts have found Section 8 as an alternative
12 source of public policy for wrongful termination claims. Section 8 reflects fundamental and firmly
13 established public policy against employment discrimination based on certain classifications including
14 race and sex.”) (internal citation omitted).
15

“The elements of a claim for wrongful discharge in violation of public policy are (1) an

16 employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the
17 termination was substantially motivated by a violation of public policy, and (4) the discharge caused
18 the plaintiff harm.” Yau v. Santa Margarita Ford, Inc., --- Cal.Rptr.3d ----, G048013, 2014 WL
19 4198060 (Cal. Ct. App. Aug. 26, 2014) (citing Haney v. Aramark Uniform Services, Inc. 121
20 Cal.App.4th 623, 641 (Cal. Ct. App. 2004)).
21

Even if Castillo can show the first two elements, Castillo fails to provide evidence to

22 demonstrate a genuine issue of material fact as to whether his termination was substantially motivated
23 by discriminatory animus as to his race, color, or national origin. As discussed above, JBT presents
24 evidence that Dobbins made the decision to terminate Castillo on the basis of his continued excessive
25 absences, despite having received prior warnings from both Garrett and Dobbins as to his attendance
26 issues. (Doc. 34 Exh. G). Castillo presents no evidence to show that Dobbins was motivated to any
27 extent by Castillo’s race, color, or national origin in Dobbins’ decision to terminate Castillo.
28 Accordingly, JBT’s motion for summary adjudication as to Castillo’s sixth claim for wrongful
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termination in violation of public policy as established by Article I § 8 of the California constitution is

2

GRANTED.

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5.

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6

Other Claims
i.

UCL

In his eighth cause of action, Castillo alleges that JBT engages in unlawful, unfair, and
fraudulent business practices in violation of California’s UCL. (Compl. ¶¶ 58-65).

7

As discussed above, Castillo fails to raise a genuine issue of material fact as to whether any

8

of JBT’s conduct constituted or resulted in unlawful discrimination or retaliation. Castillo alleges no

9

additional facts in this cause of action and presents no additional evidence. Therefore, there is no

10 evidence to show that JBT’s practices were unlawful.
11

California courts have held that an employer who engages in discrimination also may be

12 engaging in unfair business practices. Herr v. Nestle U.S.A., Inc., 109 Cal. App. 4th 779, 782 (2003)
13 (“An employer which practices age discrimination has an unfair competitive advantage over employers
14 who comply with the FEHA because older workers frequently are more highly compensated than their
15 younger colleagues.”). However, Castillo fails to present any evidence to show that JBT’s practices
16 are discriminatory in any way. Therefore, Castillo fails to raise a genuine issue of material fact as to
17 whether JBT engages in unfair business practices.
18

The definition of fraudulent business practices within the meaning of the UCL is

19 “straightforward and established.” Morgan v. AT & T Wireless Servs., Inc., 177 Cal. App. 4th 1235,
20 1254 (Cal. Ct. App. 2009). A fraudulent business practice is one in which ‘“members of the public are
21 likely to be ‘deceived.’” Id. (quoting In re Tobacco II Cases, 46 Cal.4th 298, 312 (2009)). “A UCL
22 claim based on the fraudulent prong can be based on representations that deceive because they are
23 untrue, but ‘“also those which may be accurate on some level, but will nonetheless tend to mislead or
24 deceive.’” Id. at 1255 (quoting McKell v. Washington Mutual, Inc., 142 Cal.App.4th 1457, 1471 (Cal.
25 Ct. App. 2006)). Castillo alleges that JBT engages in “deceptive business practices” by hiring,
26 managing, and terminating employees in a way that discriminates against older and minority
27 employees and retaliates against employees who complain about discrimination. (Compl. ¶ 60).
28 Again, as discussed above, Castillo fails to present any evidence to show that JBT’s practices are
17

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discriminatory or retaliatory. Further, Castillo alleges no facts to show how JBT’s alleged practices

2

are likely to mislead or deceive members of the public. Morgan, 177 Cal. App. 4th at 1254-55.

3

Because Castillo fails to raise a genuine issue of material fact as to whether JBT engages in

4

unlawful, unfair, or fraudulent business practices in violation of the UCL. JBT’s motion for summary

5

adjudication as to Castillo’s eighth cause of action is GRANTED.

6

ii.

Intentional Infliction of Emotional Distress

7

In his ninth cause of action, Castillo brings a claim for intentional infliction of emotional

8

distress against JBT. Castillo alleges that JBT’s “conduct set forth hereinabove was extreme and

9

outrageous” and was “intended to humiliate Plaintiff and to convey the message that he was powerless

10 to defend his rights.” (Compl. ¶ 68). Castillo further alleges that “[a]s a proximate result of the acts
11 alleged above, Plaintiff suffered humiliation, mental anguish, and emotional and physical distress, and
12 has been injured in mind and body[.]” (Compl. ¶ 71).
13

“A cause of action for intentional infliction of emotional distress exists when there is (1)

14 extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard
15 of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme
16 emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's
17 outrageous conduct.” Hughes v. Pair, 46 Cal. 4th 1035, 1050, (2009) (citing Potter v. Firestone Tire
18 & Rubber Co., 6 Cal.4th 965, 1001 (1993); Christensen v. Superior Court, 54 Cal.3d 868, 903 (1991)).
19 “A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually
20 tolerated in a civilized community.’” Id at 1050-51 (quoting Potter, 6 Cal.4th at 1001). “And the
21 defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury
22 will result.’” Id. at 1051 (quoting Potter, 6 Cal.4th at 1001). “Liability for intentional infliction of
23 emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions,
24 or other trivialities.” Id. (internal quotation and citations omitted).
25

Castillo fails to show that JBT engaged in extreme and outrageous conduct. In support of

26 this claim, Castillo alleges no additional facts and simply references his prior allegations. In summary,
27 the “extreme and outrageous” conduct Castillo alleges consists of: 1) one occasion when Garrett stated
28 that Castillo was only at JBT “as a favor;” 2) “several” occasions when Garrett stated to him that she
18

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wanted JBT to hire younger workers who can work in the sun; 3) Garrett’s comments regarding

2

Castillo’s work performance in his annual performance evaluation where she ranked him “Good” or

3

“Satisfactory” in each category; and 4) Dobbins’ termination of Castillo for his continued excessive

4

absences. (Castillo Dep. pp. 43-44, 49-57; Doc. 34 Exhs. N, G). Castillo failed to present any

5

evidence to show that Garrett’s comments on Castillo’s work performance were motivated by

6

discriminatory animus or that Dobbins’ decision to terminate Castillo was based on anything other than

7

Castillo’s ongoing attendance problem. Further, Garrett’s statements to Castillo could not be said to

8

amount to conduct “so ‘extreme as to exceed all bounds of that usually tolerated in a civilized

9

community.’” Hughes, 46 Cal. 4th at 1050-51 (quoting Potter, 6 Cal.4th at 1001). Rather, they are

10 precisely the sort of “insults, indignities, [or] petty oppressions” that categorically fail to support
11 intentional infliction of emotional distress claims. Id. Moreover, “[a] plaintiff’s subjective belief that
12 his termination was unnecessary or unwarranted is not sufficient to create a genuine issue of material
13 fact.” Haley v. Cohen & Steers Capital Mgmt., Inc., 871 F. Supp. 2d 944, 953 (N.D. Cal. 2012) (citing
14 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 n. 6 (9th Cir. 2006)).
15

Because there is no genuine issue of material fact as to Castillo’s failure to establish the first

16 required element of an intentional infliction of emotional distress claim, JBT’s motion for summary
17 adjudication as to Castillo’s ninth cause of action is GRANTED.
iii.

18
19

Negligent Infliction of Emotional Distress

In his tenth cause of action, Castillo brings a claim for negligent infliction of emotional

20 distress against JBT. Castillo alleges that JBT “deprived Plaintiff of his rights guaranteed under [Title
21 VII, 42 U.S.C. § 1981, ADEA, FEHA, and the California Constitution] and wrongfully terminated him
22 from his employment, as described herein, negligently inflicting emotional distress on Plaintiff[.]”
23 (Compl. ¶ 74).
24

“Negligent infliction of emotional distress, which is simply the tort of negligence, contains

25 the traditional elements of duty, breach of duty, causation and damages.” Jacoves v. United Merch.
26 Corp., 9 Cal. App. 4th 88, 107 (1992) (citing Burgess v. Superior Court, 2 Cal.4th 1064, 1072 (1992)).
27 The California Supreme Court has “made it clear that to recover damages for emotional distress on a
28 claim of negligence where there is no accompanying personal, physical injury, the plaintiff must show
19

1

that the emotional distress was ‘serious.’” Wong v. Tai Jing, 189 Cal. App. 4th 1354, 1377 (2010)

2

(citing Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 927-30 (1980)). The Court explained

3

that, ‘“serious emotional distress may be found where a reasonable man, normally constituted, would

4

be unable to adequately cope with the mental stress engendered by the circumstances of the case.’”

5

Molien, 27 Cal.3d at 928 (quoting Rodrigues v. State, 472 P.2d 509, 520 (1970)).

6

Even assuming Castillo can show that JBT breached a duty it owed to him, he fails to show

7

that he suffered “serious emotional distress” as defined by the California Supreme Court. Id. As

8

discussed above, the evidence as to JBT’s conduct does not support Castillo’s claims for

9

discrimination, retaliation, or wrongful termination.

Specifically, when asked what acts JBT

10 committed had caused him emotional distress, Castillo testified that the only conduct by JBT that
11 caused him emotional distress was terminating him. As discussed above, there is no evidence that
12 Castillo’s termination was discriminatory, retaliatory, or unlawful or improper in any way. The
13 evidence shows that Dobbins terminated Castillo due to his ongoing attendance problems. (Doc. 34
14 Exhs. G, H). Moreover, there is simply no evidence that JBT engaged in any conduct that would have
15 subjected a reasonable man, normally constituted, to mental stress with which he would be unable to
16 adequately cope. Molien, 27 Cal.3d at 928 (quoting Rodrigues, 472 P.2d at 520).
17

Because there is no genuine issue of material fact that Castillo fails to establish he suffered

18 serious emotional distress as required for a negligent infliction of emotional distress claim, JBT’s
19 motion for summary adjudication as to Castillo’s tenth cause of action is GRANTED.
20

“In analyzing a motion for summary judgment, the district court reviews the evidence to

21 determine not merely whether there is a factual dispute between the parties, but whether there is a
22 genuine factual dispute.” Fed. Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 474 (9th Cir. 1991)
23 (emphasis in the original). “A factual dispute is genuine only ‘if the evidence is such that a reasonable
24 jury could return a verdict for the nonmoving party.’” Id. at 473 (quoting Anderson, 477 U.S. at 248).
25 In this case, Castillo has failed to provide any evidence such that a jury could return a verdict in his
26 favor as to any of his eleven causes of action. Accordingly, JBT’s motion for summary judgment of
27 Castillo’s amended complaint in its entirety is GRANTED.
28

20

1
2

CONCLUSION AND ORDER
For the reasons discussed above, the Court:

3

1.

GRANTS Defendant JBT Property Management Company Inc.’s motion for
summary judgment as to Plaintiff Cristobal Castillo’s complaint; and

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5

2.

6

ORDERS the Clerk of Court to enter judgment in favor of Defendant JBT and
against Plaintiff Castillo and to close the case.

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9
10

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

September 24, 2014

UNITED STATES DISTRICT JUDGE

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