Lam v. Target Corporation

Filing 50

ORDER signed by District Judge Kimberly J. Mueller on 9/19/2017 GRANTING 27 Motion for Summary Judgment. (Donati, J)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LINH N. LAM, 12 Plaintiff, 13 14 15 No. 2:15-CV-01922-KJM-CKD v. ORDER TARGET CORPORATION and DOES 1 through 50, inclusive, Defendant. 16 17 Plaintiff Linh Lam brings this age discrimination action against his former 18 19 employer, Target Corporation (“Target”). See Marder Decl. Ex. 1 (Compl.), ECF No. 2-1. 20 Target moves for summary judgment on all claims or, in the alternative, summary adjudication on 21 sixteen issues related to the claims. See Mot., ECF No. 27; Mem. P. & A., ECF No. 28. Lam 22 opposes the motion. Opp’n, ECF No. 34. After holding a hearing on the motion and permitting 23 supplemental briefing to ensure a complete record, and for the reasons discussed below, the court 24 GRANTS the motion for summary judgment. 25 I. FACTUAL BACKGROUND When considering a motion for summary judgment, the court relies on whatever 26 27 facts are undisputed and otherwise considers the evidentiary record in the light most favorable to 28 ///// 1 1 the party opposing the motion. See, e.g., A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 2 815 F.3d 1195, 1202 (9th Cir. 2016). The following facts are undisputed unless otherwise noted. 3 A. 4 Lam’s Employment with Target Lam began working as a Warehouse team member at Target’s Woodland 5 Distribution Center on September 27, 1995. Statement of Undisputed Facts (“SUF”) 1, ECF 6 No. 32. In that role, Lam unloaded freight on the De-palletization (“Depal”) team. Id. Shortly 7 after he was hired, Lam transferred from Depal into Stocking and Order Processing, now known 8 as the Warehouse team. SUF 5. Lam’s job duties as a Warehouse team member primarily 9 involved processing orders sent in by Target stores, which meant he pulled merchandise and 10 freight to be aggregated and delivered. SUF 6. 11 Lam worked on the Warehouse team until April 2008, when he transferred to the 12 “MBP” (music, movies and break pack) team. SUF 9. Lam reported to six different Group 13 Leaders while on the MBP team. SUF 11. After several years with the MBP team, Lam 14 transferred back into general Warehouse in 2012, where he remained for his last few years of 15 employment with Target. SUF 13. In his last two years in Warehouse, Lam reported to five 16 different Group Leaders. SUF 14. Lam did not complain about any of the Group Leaders for the 17 MBP or Warehouse team while at Target. SUF 12, 15.1 18 B. 19 The Employment Agreement At the time he was hired in 1995, Lam received and acknowledged Target’s Team 20 Member Handbook, which states in pertinent part: “All Target team members are employed 21 ‘at-will,’ which means Target can terminate the employment relationship at any time for any 22 reason not prohibited by law.” SUF 2; Cody Decl. Ex. C (Handbook) at 9, ECF No. 34-6. Lam 23 24 25 26 27 28 1 Lam disputes this fact by citing his own “disputed” fact. Statement of Disputed Facts (“SDF”) 6, ECF No. 34-2. However, neither Lam’s proffer nor the cited declaration create a material dispute, and Lam’s deposition testimony directly supports the fact. Compare Lam. Dep. at 136:4–138:1, 138:2–9; 138:10–139:20; 139:21–140:21, 143:1–16, ECF No. 29-1, with Moore Decl., ECF No. 34-9. Throughout Lam’s response to the statement of undisputed facts, Lam repeatedly “disputes” facts by citing disputed facts that neither relate to, nor controvert, the proffered undisputed fact. As noted, the court relies on those facts that, despite Lam’s responses, are not subject to a material dispute. 2 1 acknowledged he was generally expected to follow the Handbook, Lam Dep. at 116:17–19, and 2 that the at-will employment policy quoted above was Target’s policy at the time of Lam’s 3 employment, id. at 118:21–119:6. Lam disputes whether his employment continued to be at-will 4 after an initial ninety-day probationary period. See SDF 1; Opp’n at 5. 5 C. Lam’s Discipline and Termination 6 On September 3, 2014, Lam’s Warehouse Group Leader, Brittany Miller, received 7 a complaint from another Warehouse member that Lam handed off work for which he wrongfully 8 took credit. SUF 45. Following this complaint, Miller and another Group Leader Greg Storz 9 conducted a “seek to understand” meeting with Lam. SUF 46. Miller and Storz explained that 10 multiple coworkers had complained about Lam handing off work in violation of Target policies. 11 SUF 47. Lam did not dispute the allegations against him. SUF 48. Following the meeting, 12 Miller sent communications to Human Resources and other leaders in the Distribution Center, 13 noting Lam had previously received coaching and corrective action for the same conduct. SUF 14 49; Hughes Decl. ¶ 30, Ex. Q at 2–4, ECF No. 31-17 (Miller’s e-mail to Human Resources 15 explaining “[i]t appears that [Lam] has already been put on CA [corrective action] for this exact 16 thing but on a smaller scale last summer”). After additional team members complained to Miller 17 about Lam’s conduct that evening, Miller relayed the additional complaints to Human Resources 18 and Distribution Center leaders. SUF 50. Target terminated Lam’s employment on September 4, 19 2014 for “gross misconduct.” SUF 52; see also SUF 36–41. 20 II. PROCEDURAL BACKGROUND 21 Lam filed this case in the Superior Court of the State of California for the County 22 of Yolo on July 23, 2015. Compl. Target removed the case to this court on August 11, 2015, on 23 the basis of the court’s diversity jurisdiction. Notice of Removal, ECF No. 2. 24 Lam brings the following claims: (1) age discrimination under California’s Fair 25 Employment and Housing Act (“FEHA”), California Government Code §§ 12900–12996; 26 (2) wrongful termination in violation of public policy under FEHA; (3) breach of implied 27 covenant of good faith and fair dealing; (4) breach of implied contract of continued employment; 28 3 1 (5) intentional infliction of emotional distress (“IIED”); and (6) negligent infliction of emotional 2 distress (“NIED”). Compl. ¶¶ 24–75. 3 On October 18, 2016, Target moved for summary judgment on all claims or, in the 4 alternative, for summary adjudication on sixteen issues related to the claims. See generally Mem. 5 P. & A. Lam filed an opposition one day late, on November 5, 2016. See Opp’n. Because the 6 delay was harmless, the court considers the opposition here. Target replied. Reply, ECF No. 35. 7 The court held a hearing on the motion on December 5, 2016, at which Vicky Cody appeared for 8 Lam and Coby Turner and Laura Maechtlen for Target. ECF No. 43. At hearing, the court 9 permitted Lam to supplement the record with errata to his opposition filings. Id.; Notice of 10 Errata, ECF No. 44. 11 III. 12 STANDARD A court will grant summary judgment “if . . . there is no genuine dispute as to any 13 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 14 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 15 resolved only by a finder of fact because they may reasonably be resolved in favor of either 16 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 17 The moving party bears the initial burden of showing the district court “that there 18 is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 19 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish 20 that there is a genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio 21 Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must “cit[e] to particular 22 parts of materials in the record . . .; or show [] that the materials cited do not establish the absence 23 or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 24 support the fact.” Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 (“[The 25 nonmoving party] must do more than simply show that there is some metaphysical doubt as to the 26 material facts”). Moreover, “the requirement is that there be no genuine issue of material 27 fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing 28 4 1 law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247–48 2 (emphasis in original). 3 In deciding a motion for summary judgment, the court draws all inferences and 4 views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 5 587–88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). “Where the record taken as a 6 whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine 7 issue for trial.’” Matsushita, 475 U.S. at 587 (quoting First Nat’l Bank of Ariz. v. Cities Serv. 8 Co., 391 U.S. 253, 289 (1968)). 9 A court may consider evidence as long as it is “admissible at trial.” Fraser v. 10 Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). “Admissibility at trial” depends not on the 11 evidence’s form, but on its content. Block v. City of L.A., 253 F.3d 410, 418–19 (9th Cir. 2001) 12 (citing Celotex Corp., 477 U.S. at 324). The party seeking admission of evidence “bears the 13 burden of proof of admissibility.” Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir. 14 2002). If the opposing party objects to the proposed evidence, the party seeking admission must 15 direct the district court to “authenticating documents, deposition testimony bearing on attribution, 16 hearsay exceptions and exemptions, or other evidentiary principles under which the evidence in 17 question could be deemed admissible . . . .” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385–86 18 (9th Cir. 2010). However, courts are sometimes “much more lenient” with the affidavits and 19 documents of the party opposing summary judgment. Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 20 1243 (9th Cir. 1979). 21 The Supreme Court has taken care to note that district courts should act “with 22 caution in granting summary judgment,” and have authority to “deny summary judgment in a case 23 where there is reason to believe the better course would be to proceed to a full trial.” Anderson, 24 477 U.S. at 255. A trial may be necessary “if the judge has doubt as to the wisdom of terminating 25 the case before trial.” Gen. Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500, 1507 (9th Cir. 26 1995) (quoting Black v. J.I. Case Co., 22 F.3d 568, 572 (5th Cir. 1994)). This may be the case 27 “even in the absence of a factual dispute.” Rheumatology Diagnostics Lab., Inc v. Aetna, Inc., 28 5 1 No. 12-05847, 2015 WL 3826713, at *4 (N.D. Cal. June 19, 2015) (quoting Black, 22 F.3d at 2 572); accord Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 1285 (11th Cir. 2001). 3 IV. 4 DISCUSSION A. 5 Age Discrimination under FEHA (Claim 1) California has adopted a three-stage burden-shifting test for adjudicating 6 discrimination claims under FEHA. Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (2000) (citing 7 Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 8 411 U.S. 792 (1973)). “This so-called McDonnell Douglas test reflects the principle that direct 9 evidence of intentional discrimination is rare, and that such claims must usually be proved 10 circumstantially.” Guz, 24 Cal. 4th at 354. Under this framework, the employee has the initial 11 burden to establish a prima facie case of discrimination; the burden then shifts to the employer to 12 present a legitimate, non-discriminatory reason for the adverse employment decision; and the 13 employee must then show the employer’s reasons for the action are a pretext for discrimination. 14 Id. at 354–56. To establish a prima facie case, “[g]enerally, the plaintiff must provide evidence 15 that (1) he was a member of a protected class, (2) he was qualified for the position he sought or 16 was performing competently in the position he held, (3) he suffered an adverse employment 17 action, such as termination, demotion, or denial of an available job, and (4) some other 18 circumstance suggests discriminatory motive.” Id. at 355. 19 Here, Target argues Lam has not established prima facie element (2), requiring 20 that Lam was qualified for the position he held, and element (4), requiring some other 21 circumstance suggesting discrimination. Mem. P. & A. at 16–18. Target further argues that, even 22 if Lam can satisfy his prima facie burden as to all four elements, Lam cannot show Target’s 23 proffered reason was pretext for age discrimination. Id. at 17–18. For the reasons explained 24 below, element (4) is dispositive; therefore the court need not address the balance of Target’s 25 arguments. 26 A plaintiff may support an inference of discriminatory motive by showing his 27 duties were transferred to a substantially younger employee or employees with equal or lesser 28 qualifications. Ewing v. Gill Industries, Inc., 3 Cal. App. 4th 601, 609 (1992). This element, 6 1 however, “has been treated with some flexibility,” Nidds v. Schindler Elevator Corp., 113 F.3d 2 912, 917 (9th Cir. 1996), and courts may “require instead that the plaintiff show through 3 circumstantial, statistical, or direct evidence that the discharge occurred under circumstances 4 giving rise to an inference of age discrimination,” Rose v. Wells Fargo & Co., 902 F.2d 1417, 5 1421 (9th Cir. 1990). “Still, there must be evidence supporting a rational inference that 6 intentional discrimination, on grounds prohibited by the statute, was the true cause of the 7 employer’s actions.” Guz, 24 Cal. 4th at 383. 8 Lam makes two arguments to support a sufficient inference of discrimination to 9 survive summary judgment, neither of which establishes a genuine dispute as to this necessary 10 element. First, Lam argues he was subject to additional scrutiny because of his age. Opp’n at 4. 11 But Lam does not point to any evidence to support this claim. The record shows Lam was subject 12 to a consistent series of coaching conversations, critical performance reviews and corrective 13 actions since his move to the MBP team in early 2008 and continuing after his return to the 14 Warehouse team in 2012. See Hughes Decl. ¶¶ 7–12, 14–19, 20–21; id. Ex. B, ECF No. 31-2 15 (performance coaching notes); id. Exs. C–H, ECF Nos. 31-3–31-8 (annual performance reviews); 16 id. Exs. I–J, ECF Nos. 31-9–10 (corrective action notices). Although Lam was forty-two when he 17 was terminated, he was approximately thirty-five years old when he received the first of a series 18 of annual reviews that noted “Needs Improvement” in productivity. Id. Exs. C–D, F–H; SUF 57. 19 FEHA expressly prohibits discrimination on the basis of age, and clarifies that “age” refers to a 20 person over forty. Cal. Gov’t Code § 12940(a); Cal. Gov’t Code § 12926(b); see also Stevenson 21 v. Superior Court, 16 Cal. 4th 880, 928 n.6 (1997) (citing a previous version of section 12941, 22 explaining “FEHA’s age discrimination prohibition applies only to employees ‘over the age of 23 40’”); Hersant v. Dep’t of Soc. Servs., 57 Cal. App. 4th 997, 1003 (1997) (plaintiff must show, at 24 the time of the adverse action, he was forty years of age). Given that almost all of this “additional 25 scrutiny,” assuming it occurred, took place before Lam turned forty in or about 2012, Lam has not 26 provided any evidence that would suggest Target was more critical of his work because of his 27 protected status once he did turn forty. Similarly, Lam points to no evidence that similarly 28 situated, younger employees were treated more favorably. See Joseph v. Target Corp., 2:12-CV7 1 01962-KJM, 2015 WL 351444, at *15 (E.D. Cal. Jan. 23, 2015) (granting summary judgment 2 because plaintiff’s evidence did not support claim that younger employees received less critical 3 treatment). In sum, the record contains insufficient evidence to support any circumstance 4 suggesting discriminatory motive. 5 Second, Lam argues longer-term, older employees were consistently terminated as 6 part of Target’s effort to “clean house.” Opp’n at 5–6. But Lam’s proffered declaration of Sonya 7 Moore, a former supervisor at Lam’s distribution center, does not support Lam’s assertion. See 8 Moore Decl., ECF No. 34-9. In her declaration, Moore describes a recent “change of direction” 9 and an effort to “clean house” at Target that led to the rapid termination of salaried employees. 10 Id. ¶¶ 5–6. As part of this purported change, salaried employees were cited for “nit-picky” 11 violations, many of which did not previously result in adverse action. Id. Moore noticed that 12 “many” terminated employees were long-term employees and “some” of them employees were 13 above the age of forty. Id. at 7–8. 14 Moore’s account is unhelpful to Lam’s claim for three reasons. First, Lam’s 15 alleged mistreatment preceded the pattern Moore described. Moore noticed a pattern that 16 occurred “during the last few years” of her employment. Id. ¶ 5. Given that Moore was a 17 supervisor with Target from 2007 through 2014, id. ¶ 1, she appears to be describing a pattern 18 that started several years after Lam first received critical reviews in 2008. Second, Moore 19 describes a pattern among salaried rather than hourly employees. To establish discrimination, 20 Lam must show similarly situated employees were not discharged for conduct similar to his. 21 McGrory v. Applied Signal Tech., Inc., 212 Cal. App. 4th 1510, 1535–36 (2013) (citing Lathem v. 22 Dep’t of Children and Youth Servs., 172 F.3d 786, 792 (11th Cir. 1999)) (“No inference of 23 discrimination reasonably arises when an employer has treated differently different kinds of 24 misconduct by employees holding different positions.”). Here, given the likely differences in 25 roles and responsibilities, demographics and employment agreements between salaried and hourly 26 employees, Moore’s account, completely unsupported by any statistical information, does not 27 provide evidence of similarly situated employees. Id. (noting plaintiff, a manager, was differently 28 situated than his subordinates). In any event, Lam provides no evidence that his conduct was 8 1 comparable to that of salaried employees; Moore does not explain or give any examples of the 2 “nit-picky” violations, and the court is not able to compare Lam’s conduct to the supervisors’ 3 conduct that led to adverse action. Finally, Moore’s “pattern” provides no evidence that older 4 employees were more likely than younger employees to be terminated. Instead, she only asserts 5 “some” terminated employees were older than forty. Id. at 7–8. Because nearly half of the 6 Warehouse team was older than forty, SUF No. 57, Moore’s statement is unremarkable and 7 unhelpful to Lam. Moore’s generalized observations fall far short of the “stark pattern” needed to 8 establish a prima facie case of discrimination. Palmer v. United States, 794 F.2d 534, 539 (9th 9 Cir. 1986) (citing Gay v. Waiters’ and Dairy Lunchmen’s Union, 694 F.2d 531, 552 (9th Cir. 10 1982)); cf. Schechner v. KPIX-TV, 686 F.3d 1018, 1022 (9th Cir. 2012) (expert statistician’s 11 conclusion, based on analysis of entire pool of employees, that “those individuals laid off, as a 12 group, are older than the group of those not laid off, and the disparity between the two groups is 13 statistically significant” established prima facie burden). 14 15 16 Lam has not presented a prima facie case of age discrimination. The court GRANTS Target’s motion on this claim. B. 17 Wrongful Termination under FEHA (Claim 2) Lam’s argument regarding his second claim relies on the same evidence of 18 discrimination as his first. See Opp’n at 7 (citing SDF 6 (citing Moore Decl.)). Because that 19 evidence does not establish a necessary element of a prima facie case of discrimination, this claim 20 also cannot survive summary judgment. See, e.g., Shoemaker v. Myers, 52 Cal. 3d 1, 24 (1990) 21 (dismissing claim of wrongful termination as duplicative of others brought by plaintiff). The 22 court GRANTS Target’s motion on this claim. 23 24 C. Breach of Implied Covenant of Good Faith and Fair Dealing (Claim 3) Under California law, in the absence of any agreement to the contrary, 25 employment may be terminated at any time, with or without cause. Guz, 24 Cal. 4th at 335; Cal. 26 Lab. Code § 2922. “While the statutory presumption of at-will employment is strong . . . . [and] 27 prevails where the employer and employee have reached no other understanding . . . it does not 28 overcome [the parties’] fundamental [] freedom of contract to depart from at-will employment.” 9 1 Guz, 24 Cal. 4th at 336 (internal quotation omitted). Such an agreement may be implied by the 2 parties’ conduct based on the “totality of the circumstances” including the following factors: “the 3 personnel policies or practices of the employer, the employee’s longevity of service, actions or 4 communications by the employer reflecting assurances of continued employment, and the 5 practices of the industry in which the employee is engaged.” Id. at 336–37 (quoting Foley v. 6 Interactive Data Corp., 47 Cal. 3d 654, 680 (1988)). “Courts seek to enforce the actual 7 understanding of the parties to an employment agreement,” and “where the undisputed facts 8 negate the existence . . . of the contract claimed, summary judgment is proper.” Id. at 337 9 (internal quotations omitted). 10 Lam does not dispute he was hired as an at-will employee. See SDF 1. Indeed, 11 the Team Member Handbook Lam received when he was hired clearly defined Lam’s 12 employment as “at-will” and explained that Target “[does] not guarantee employment for any 13 particular length of time or limit how that employment may end.” Handbook at 9. Instead, Lam 14 disputes whether his employment continued to be “at-will” after an initial ninety-day 15 probationary period and argues Target provided information that created an implied contract 16 between Target and its employees. SDF 1; Opp’n at 5. 17 The evidence does not support the existence of an implied contract that overrides 18 Lam’s at-will agreement. Lam first points to the Handbook itself, which generally discusses 19 “careers” available after a probationary period, as well as language from the Handbook, which 20 states “[w]e hope you’ll be at Target a long time.” See Handbook. Target’s aspirational language 21 is not enough to alter the nature of employment. See, e.g., Goldstein v. Lackard, A116945, 2008 22 WL 4495707, at *7 (Cal. Ct. App. Oct. 8, 2008) (unpublished) (“[The employer’s] optimistic 23 attitude regarding [the employee’s] future with the firm is not inconsistent with at-will 24 employment . . . . [E]mployers generally hire people they hope to retain for a substantial period of 25 time. In no way does this hope or expectation affect the presumption that the employment 26 relationship is at will.”)2. In any event, the Handbook specifically states no portion should be 27 28 2 Federal courts may consider such unpublished opinions but are not bound by them. See Nunez v. City of San Diego, 114 F.3d 935, 942 n.4 (9th Cir. 1997). 10 1 construed as altering the at-will relationship. Handbook at 9 (“[T]eam members should not[] 2 interpret any verbal or written statement, policies, practices, or procedures, including this 3 handbook, as altering their at-will status.”). Additionally, the Handbook clearly explains that 4 employment continues to be at-will after the ninety-day probationary period. Id. at 23 (“Both 5 during and after this 90 calendar day period, Target may terminate your employment at any time 6 for no reason or for any reason not prohibited by law.”). The Handbook thus repeatedly rebuffs 7 Lam’s argument. 8 Lam next cites depositions from supervisors Greg Storz and Jennifer Hunter in 9 which they explain they are not aware of Target employees being terminated without cause. 10 Storz Dep. at 59:9–24, ECF No. 34-7; Hunter Dep. at 78:4–79:12, ECF No. 34-8. But this 11 deposition testimony is consistent with Target’s interpretation of the nature of the employment 12 relationship; an at-will employee can be removed with or without cause, and an employee’s 13 removal for cause does not undermine the assertion that he was an at-will employee. Guz, 24 14 Cal.4th at 345 (holding that company president’s testimony that he understood that the defendant 15 terminated people only for “good reason” was insufficient as a matter of law to permit a finding 16 that the company had contracted away its right to discharge at-will); Doubt v. NCR Corp., 17 No. C 09-5917 SBA, 2014 WL 3897590, at *12 (N.D. Cal. Aug. 7, 2014) (explaining that an 18 “unwritten policy or practice of terminating [] employees only for cause” does not create an 19 implied contract to only terminate for cause). 20 Finally, although Lam does not point to this factor, Foley also directs courts to 21 examine the employee’s longevity of service. Foley, 47 Cal. 3d at 680 (citing Pugh v. See’s 22 Candies, Inc., 116 Cal. App. 3d 311, 327 (1981)). While Lam’s nineteen-year employment 23 relationship with Target is a factor that cuts in his favor, this factor standing alone does not 24 support finding an implied contract. Guz, 24 Cal. 4th at 341–42 (“[A]n employee's mere passage 25 of time in the employer's service, even where marked with tangible indicia that the employer 26 approves the employee’s work, cannot alone form an implied-in-fact contract that the employee is 27 no longer at will.”). Based on the “totality of circumstances” of the record before the court, no 28 reasonable juror could find the parties had an “actual understanding” altering Lam’s at-will status. 11 1 Id. at 337. Because the court finds no implied contract between Lam and Target, Lam cannot 2 survive summary judgment on a claim that relies on its existence. 3 The court GRANTS Target’s motion on this claim. 4 D. Breach of Implied Covenant of Continued Employment (Claim 4) 5 Lam’s argument regarding his fourth claim relies on the same evidence as his third 6 to support a genuine dispute as to the existence of an implied employment contract. See Opp’n at 7 8. Because “[t]here cannot be a valid express contract and an implied contract, each embracing 8 the same subject but requiring different results . . . [t]he at-will agreement preclude[s] the 9 existence of an implied contract requiring good cause for termination.” Starzynski v. Capital Pub. 10 Radio, Inc., 88 Cal. App. 4th 33, 38 (2001) (internal quotation marks omitted) (quoting Camp v. 11 Jeffer, Mangels, Butler & Marmaro, 35 Cal. App. 4th 620, 630 (1995)); see also Guz, 24 Cal.4th 12 at 340 n.10 (“[M]ost cases applying California law . . . have held that an at-will provision in an 13 express written agreement, signed by the employee, cannot be overcome by proof of an implied 14 contrary understanding”). Because the court concludes above no reasonable juror could find such 15 an agreement existed, this claim cannot survive either. 16 17 18 The court GRANTS Target’s motion on this claim. E. Intentional Infliction of Emotional District (IIED) (Claim 5) “The elements of a prima facie case of intentional infliction of mental distress are 19 (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the 20 probability of causing emotional distress, (3) severe emotional suffering and (4) actual and 21 proximate causation of the emotional distress.” Bogard v. Emp’rs Cas. Co., 164 Cal. App. 3d 22 602, 616 (1985); Agarwal v. Johnson, 25 Cal. 3d 932, 946 (1979). Target argues Lam has 23 sufficiently shown neither Target’s outrageous conduct nor Lam’s severe emotional suffering. 24 Mem. P. & A. at 21–22. 25 As to the first element of the prima facie case, outrageous conduct is conduct that 26 is “so extreme as to exceed all bounds of that usually tolerated in a civilized community” and “so 27 extreme and outrageous ‘as to go beyond all possible bonds [sic] of decency, and to be regarded 28 as atrocious, and utterly intolerable in a civilized community.’” Bogard, 164 Cal. App. 3d at 616 12 1 (quoting Cervantez v. J.C. Penney Co., 24 Cal. 3d 579, 593 (1979); Alcorn v. Anbro Eng’g, Inc., 2 2 Cal. 3d 493, 499 n.5 (1970)). “Behavior may be considered outrageous if a defendant [] abuses 3 a relation or position which gives him power to damage the plaintiff’s interest; [] knows the 4 plaintiff is susceptible to injuries through mental distress; or [] acts intentionally or unreasonably 5 with the recognition that the acts are likely to result in illness through mental distress.” Newby v. 6 Alto Riviera Apartments, 60 Cal. App. 3d 288, 297 (1976). For this first element, Lam does not 7 point to any action or comment made by Target or its employees other than its termination 8 decision. See Opp’n at 8. Lam argues Target’s outrageous conduct includes “wrongful 9 termination based on age” and “[c]onspiring to circumvent Plaintiff’s right to be free from age 10 discrimination.” Id. As an initial matter, both of these arguments can be rejected on the grounds 11 that both rely on age discrimination by Target, for which Lam has not shown a genuine dispute 12 exists for the reasons discussed above. Even assuming that the termination was based on his age, 13 Lam points to no authority supporting the proposition that termination can by itself be 14 “outrageous” without some additional action or comments by the employer, which Lam has not 15 provided; the court finds none on its own. In addition, Lam provides no evidence supporting his 16 assertion that Target somehow conspired against Lam. The dearth of evidence cannot raise a 17 genuine dispute of material facts as to the first element of Lam’s prima facie case. 18 As to the third element, severe emotional suffering means “emotional distress of 19 such substantial quantity or enduring quality that no reasonable man in a civilized society should 20 be expected to endure it.” Bogard, 164 Cal. App. 3d at 617 (quoting Fletcher v. W. Natl. Life Ins. 21 Co., 10 Cal. App. 3d 376, 397 (1970)). For this element, Lam asserts he “has been diagnosed as 22 suffering from extreme emotional distress.” SDF 6. Lam provides no evidence of his diagnosis, 23 although he does cite a worker’s compensation agreement. Cody Decl. Ex. G, ECF No. 34-10. 24 While the agreement lists various “matters” the parties agreed to settle, such as “earnings,” 25 “temporary disability” and “future medical treatment,” the agreement does not otherwise show 26 that Lam received any diagnosis. Id. Lam points separately to an excerpt from his deposition at 27 which he explained he had not told his family he lost his job and that “it’s really messing me up.” 28 SDF 6; Lam Dep. at 366:12–13, ECF No. 44-2. This sparse excerpt does not support Lam’s 13 1 assertion that he received some type of diagnosis. Diagnosis aside, Lam further explained that 2 “messed up” referenced his inability to find another job. Lam Dep. at 365:25–366:1–3 (“I was 3 messed up. I couldn’t get back into the job. All I know how to do was Target warehouse. I 4 couldn’t find another job.”). Mere unemployment is not that type of “emotional distress of such 5 substantial quantity or enduring quality that no reasonable man in a civilized society should be 6 expected to endure it.” Bogard, 164 Cal. App. 3d at 617. Lam’s unemployment, standing alone, 7 is not sufficient to establish a genuine dispute as to this element here. 8 9 10 11 Lam has not shown there is a genuine factual dispute regarding two necessary elements for his IIED claim. The court GRANTS Target’s motion on this claim. F. Negligent Infliction of Emotional Distress (NIED) (Claim 6) The negligent causing of emotional distress “is not an independent tort but the tort 12 of negligence,” and the “traditional elements of duty, breach of duty, causation, and damages 13 apply.” Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal. 3d 583, 588 (1989). 14 Although California law distinguishes between a “bystander” theory and a “direct victim” theory 15 of negligent infliction of emotional distress, both similarly require “serious emotional distress.” 16 Burgess v. Super. Ct., 2 Cal. 4th 1064, 1073 n.6 (1992). Because California law does not require 17 physical injury, the “serious emotional distress” requirement helps “guard against the litigation of 18 trivial or fraudulent claims.” Id.; Molien v. Kaiser Found. Hosps., 27 Cal. 3d 916, 928–30 19 (1980). “[S]erious mental distress may be found where a reasonable man, normally constituted, 20 would be unable to adequately cope with the mental stress engendered by the circumstances of 21 the case.” Molien, 27 Cal. 3d at 928 (quoting Rodrigues v. State, 52 Haw. 156, 172 (1970)); see 22 also Judicial Council of California Civil Jury Instruction 1620 (“Serious emotional distress exists 23 if an ordinary, reasonable person would be unable to cope with it.”). 24 Here, Lam copies his allegations and argument from his discussion of his IIED 25 claim to that of his NIED claim. Compare Compl. ¶ 66 and Opp’n at 8 with Compl. ¶ 73 and 26 Opp’n at 9. Lam’s argument fails for two reasons. First, Lam’s claims of negligence are based 27 on the same allegations of intentional conduct that underlie his IIED claim. See Compl. ¶ 73 28 (alleging Target’s “[w]rongful termination based on age” and “[c]onspiring to circumvent 14 1 [Lam’s] right to be free from age discrimination”). But intentional conduct cannot support a 2 claim for negligence. Semore v. Pool, 217 Cal. App. 3d 1087, 1105 (1990) (affirming dismissal 3 of NIED claim where “any actions by the employer were intentional, not negligent”). Second, 4 Lam has provided no additional basis to find a disputed fact as to his “serious emotional distress.” 5 Burgess, 2 Cal. 4th at 1073 n.6. As with his IIED claim, Lam has provided no evidence 6 supporting his alleged “diagnosis” and Lam’s deposition testimony is wholly inadequate to 7 support this necessary finding. For both of these reasons, Lam has not supported his NIED claim 8 so as to survive summary judgment. 9 The court GRANTS Target’s motion on this claim. 10 G. 11 Punitive Damages Because the court grants summary judgment on each of Lam’s claims upon which 12 his prayer for punitive damages relies, the court need not separately address his request for this 13 relief. Oliver v. Microsoft Corp., 966 F. Supp. 2d 889, 899 n.4 (N.D. Cal. 2013) (after granting 14 defendants’ motion for summary judgment on former employee’s claims, declining to address 15 defendant’s motion regarding punitive damages). 16 V. 17 CONCLUSION As explained above, Lam has not provided sufficient evidence to raise a genuine 18 dispute of material fact as to necessary elements of each his claims. Accordingly, the court 19 GRANTS Target’s motion on all claims. 20 This order resolves ECF No. 27. 21 IT IS SO ORDERED. 22 DATED: September 19, 2017. 23 24 UNITED STATES DISTRICT JUDGE 25 26 27 28 15

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?