Tenerelli v. Rite Aid Corporation

Filing 21

ORDER signed by District Judge John A. Mendez on 4/18/19 GRANTING 16 Motion for Summary Judgment. CASE CLOSED. (Coll, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PETER TENERELLI, an individual,

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No.

2:17-CV-01011-JAM-EFB

Plaintiff,

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v.

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RITE AID CORPORATION; and DOES 1
through 100, inclusive,

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

Defendants.

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This case arises from Rite Aid’s termination of Peter

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Tenerelli, a Pharmacy District Manager who had worked for Rite

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Aid for 34 years.

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“Plaintiff”) alleges he was unlawfully fired because of his age

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and his reporting of drug inventory discrepancies.

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Aid Corporation (together with Rite Aid Hdqtrs. Corp., “Rite Aid”

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or “Defendant”) maintains it fired Tenerelli for making threats

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of violence in the workplace.

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judgment on all claims.

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the motion.

Defendant Rite

Defendant moves for summary

Mot., ECF No. 16-1.

Tenerelli opposes

Opp’n, ECF No. 17.

For the reasons set forth below, this Court GRANTS

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Plaintiff Peter Tenerelli (“Tenerelli” or

Defendant’s motion.1

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for April 2, 2019.
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I.

FACTS AND PROCEDURAL BACKGROUND

Defendant Rite Aid Corporation is a retail drug store chain

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incorporated in Delaware and with its principal place of business

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in Pennsylvania.

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Notice of Removal, ECF No. 1, at 4-5.

Plaintiff Peter Tenerelli worked for Rite Aid for over 34

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years.

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working for Rite Aid in June 1982 as a pharmacist in Washington

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state.

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2016, Tenerelli worked as a Pharmacy District Manager in Rite

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Undisputed Facts (UF), ECF No. 17-1, ¶ 1.

Id. ¶ 2.

He began

At the time of his termination on December 8,

Aid’s Ranch Cordova, California District Office.

Id. ¶ 4.

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During the week of November 27, 2016, Tenerelli made a

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comment to his coworker, Christopher Morris, about the use of a

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gun at work.

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shared Tenerelli’s comment from the prior week with Human

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Resource District Manager Kristy Foster-Potts, and the next day

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reported the comment to his supervisor, West Coast Divisional

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Asset Protection Director Michelle Jones.

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December 6, 2016, Morris provided a written statement to Jones

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detailing his recollection of Tenerelli’s comment: “Pete entered

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the office that I was in and closed the door . . . He began the

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conversation by stating, ‘I’m only telling you this because I

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like you.

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of a metal slide going back (as he was motioning to load an

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assault rifle), that’s your cue to get out of the that backdoor

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over there within 5-10 seconds!’

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starting at the office over there’, as he pointed to the Regional

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Admin’s office.

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way down that back wall.’ ”

UF ¶¶ 24, 35, 43.

On December 5, 2016, Morris

Id. ¶¶ 27-28.

On

If you are ever in this office and you hear the sound

He then went on to say, ‘I’m

He then said, ‘After that, I’ll be working my
Id. ¶¶ 31-32.
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That same day, on December 6, 2016, Jones and Pharmacy

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Regional Vice President Steve Barney interviewed Tenerelli at a

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Starbucks next to the Rancho Cordova District Office, during

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which Tenerelli gave his side of the story.

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interview, Tenerelli admitted to Jones and Barney that he made a

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comment to Morris about shooting himself, but not any coworkers.

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Id. ¶ 35.

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provides “Peter stated to us that he did have a conversation in

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the office ‘that if you ever heard a clicking sound, (mimicked

UF ¶¶ 33-34.

In the

Jones’ statement from her interview with Tenerelli

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the sound of a gun), don’t bother calling 911.

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to the cruel cruel world.’ ”

I have given in

Id. ¶ 37.

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That night, as requested, Tenerelli provided a written

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statement to Jones and Barney which included: “I jokingly stated

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that if he [Morris] heard a click or bang in my office not to

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call 911 and do not resuscitate me stating ‘good bye cruel

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world’.”

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explained his comment: “I stated this completely in levity in

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response to my being overworked . . . Never at any time would I

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harm myself or others.

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was just poking fun at myself.”

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No. 16-5, at 15.

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related to violent and threatening behavior in the workplace and

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understood that engaging in violent and threatening behavior in

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the workplace was a serious matter that would not be tolerated.

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UF ¶¶ 16-20.

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Id. ¶ 43.

In the written statement, Tenerelli further

These comments were never specific and I
Tenerelli Written Statement, ECF

Tenerelli was aware that Rite Aid had policies

Roger Ceballos, Rite Aid’s Senior Director of Human

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Resources, reviewed and relied on Morris’ and Tenerelli’s written

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statements, along with Jones’ statement from her interview of
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Tenerelli in making the decision to terminate Tenerelli’s

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employment.

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Tenerelli because his admitted comments violated Rite Aid’s

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workplace violence policy and standards of conduct.

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Ceballos had no knowledge of any discrimination against

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Tenerelli, nor had Tenerelli reported any such discrimination to

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Ceballos.

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Tenerelli had raised any issues with anyone else at Rite Aid

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about the accuracy of drug inventory reporting, including on DEA

UF ¶ 47.

Ceballos made the decision to terminate

Id. ¶¶ 52-53.

Id. ¶ 49.

Similarly, Ceballos was not aware

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Form 106s, nor had Tenerelli raised such concerns to Ceballos.

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Id. ¶¶ 57-58.

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terminated effective December 8, 2016.

Tenerelli, who was an at will employee, was
UF ¶¶ 1, 5.

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On April 6, 2017, Tenerelli filed a Complaint against Rite

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Aid in the Superior Court of the State of California, County of

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Sacramento (Case No. 34-2017-00210709), bringing six causes of

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action: (1) Wrongful Termination in Violation of a Public Policy;

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(2) Violation of the California Whistleblower Protection Act and

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California Government Code § 1102.5(c); (3) Discrimination based

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on Age in Violation of California Government Code § 12940(a);

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(4) Breach of Implied Covenant of Good Faith and Fair Dealing;

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(5) Breach of Employment Contract; (6) and Intentional Infliction

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of Emotional Distress.

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Rite Aid removed the case to federal court on the basis of

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diversity jurisdiction.

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EFC No. 1 at 16-29.

On May 15, 2017,

Notice of Removal at 3.

On March 5, 2019, Rite Aid moved for summary judgment on all

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six causes of action.

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motion.

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Mot., ECF No. 16-1.

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Opp’n, ECF No. 17.

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Tenerelli opposed the

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II.

OPINION

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A.

Age Discrimination

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To defeat a claim of age discrimination on a motion for

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summary judgment, an employer must show that (1) the plaintiff

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could not establish one of the elements of his FEHA claim or

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(2) there was a legitimate, nondiscriminatory reason for its

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decision to terminate the plaintiff’s employment.

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Montblanc N. Am., LLC, 704 F.3d 1235, 1242 (9th Cir. 2013)

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(citing Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc.,

Lawler v.

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642 F.3d 728, 745 (9th Cir. 2011)).

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burden, the discharged employee must then raise a triable issue

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of material fact as to whether the employer’s proffered reason

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for the termination was mere pretext for unlawful discrimination.

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Lucent Techs., 642 F.3d at 746.

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If the employer meets its

Prima Facie Case

Tenerelli carries the initial burden of establishing a prima

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facie case of age discrimination.

See McDonnell Douglas Corp. v.

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Green, 411 U.S. 792, 802 (1973).

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discrimination case under FEHA, Tenerelli must establish that:

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(1) he was a member of a protected class (i.e., 40 years of age

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or older); (2) he was performing competently in the position he

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held; (3) he suffered an adverse employment action, such as

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termination; and (4) some other circumstance suggests a

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discriminatory motive.

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Inc., 853 F.3d 1035, 1043 (9th Cir. 2017).

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Tenerelli has satisfied the first, second, and third elements.

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Mot. at 12.

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of age discrimination.

To state a prima facie age

Santillan v. USA Waste of California,
It is undisputed that

The parties also agree there is no direct evidence
Opp’n at 4.
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Tenerelli has failed to put forward circumstances suggesting

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a discriminatory motive in his termination.

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Aid’s Senior Director of Human Resources, made the decision to

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terminate Tenerelli based on his admitted comment about shooting

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a gun in the office.

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reported any age discrimination to Ceballos.

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there any evidence – only pure speculation by Tenerelli – that

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Ceballos had knowledge of age-related comments directed towards

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Tenerelli.

UF ¶¶ 42-44, 47-49.

Id. ¶¶ 53, 78-83.

Roger Ceballos, Rite

Tenerelli never
Id. ¶ 52.

Nor is

“[S]tray remarks that are

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unconnected to employment decisionmaking” do not support a FEHA

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discrimination claim.

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4th 203, 231 (Cal. 2013).

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2.

Harris v. City of Santa Monica, 56 Cal.

Legitimate, Nondiscriminatory Reason

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Tenerelli’s claim of age discrimination also fails because

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Rite Aid has articulated a legitimate, nondiscriminatory reason

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for the termination.

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Tenerelli admitted, in a written statement provided to Rite Aid,

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to commenting about shooting a gun at work which, even if made in

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jest and directed at himself, was a violation of Rite Aid’s

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workplace violence policy and standards of conduct.

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49.

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comment, along with statements from Christopher Morris and

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Michelle Jones regarding the comment, served as the basis for

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Tenerelli’s termination.

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McDonnell Douglas, 411 U.S. at 802.

UF ¶¶ 42-44,

It is undisputed that Tenerelli’s admission to making this

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UF ¶¶ 32, 35-37, 47-49.

Pretext

Where an employer provides a legitimate, nondiscriminatory

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reason for the adverse employment action, the burden shifts back

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to the employee to show that the employer’s proffered reason was
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simply a pretext for discrimination.

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at 804.

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terminating him was pretextual.

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Rite Aid’s reason for terminating Tenerelli was his admitted

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statement regarding shooting a gun at work.

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47-49.

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in a bubble and in fact may have had significant information that

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would influence his decision to terminate” is pure speculation,

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and comes nowhere close to the “specific” and “substantial”

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circumstantial evidence needed to create a genuine issue of

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material fact as to pretext.

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Union, 439 F.3d 1018, 1029 (9th Cir. 2006).

Tenerelli fails to establish Rite Aid’s reason for
Indeed, it is undisputed that

UF ¶¶ 35-37, 42-44,

Tenerelli’s argument that “Mr. Ceballos was not working

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McDonnell Douglas, 411 U.S.

4.

Cornwell v. Electra Cent. Credit

Conclusion

Thus, this Court grants summary judgment to Rite Aid on

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Tenerelli’s third cause of action for age discrimination under

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FEHA.

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also brought under the ADEA, summary judgment is likewise

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warranted.

Moreover, to the extent this age discrimination claim is

Shelley v. Geren, 666 F.3d 599, 607 (9th Cir. 2012).

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B.

Retaliation

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To establish a prima facie case of retaliation a plaintiff

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must demonstrate (1) he engaged in a protected activity, (2) his

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employer subjected him to an adverse employment action, and

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(3) there is a causal link between the two.

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Orange, 157 Cal. App. 4th 121, 138 (Cal. Ct. App. 2007).

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Mokler v. Cty. of

Tenerelli alleges he reported, to people he believed to be

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members of upper management, that, based on certain drug

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inventory discrepancies, he thought the DEA Form 106s he was

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filling out and signing had the potential to be inaccurate.
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UF ¶¶ 85, 88.

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protected activity under California Labor Code § 1102.5 (see UF

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¶¶ 84-97), the undisputed facts show no causal link between this

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activity and Tenerelli’s termination.

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Tenerelli’s termination, Roger Ceballos, was not aware of any

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concerns Tenerelli raised about allegedly inaccurate DEA Form

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106s or any other similar reports.

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contention that “Mr. Ceballos is not isolated from others” (Opp’n

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at 7) is insufficient to create a genuine issue of material fact

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Setting aside whether that reporting constitutes a

The decisionmaker on

UF ¶¶ 50, 57-58.

Tenerelli’s

as to a causal link.
Thus, this Court grants summary judgment to Rite Aid on

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Tenerelli’s second cause of action for retaliation under

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California Labor Code § 1102.5.

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retaliation claim is brought under the California Whistleblower

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Protection Act (California Government Code § 8547.8), summary

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judgment is warranted because Tenerelli was not a state employee.

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McKinney v. Apollo Grp., Inc., Case No. 07-cv-2373-WQH-CAB, 2010

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WL 11442914, at *13 (S.D. Cal. Jan. 28, 2010).

Moreover, to the extent the

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C.

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A claim for wrongful termination in violation of public

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policy is a derivative claim which “requires a showing that there

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has been a violation of a fundamental public policy embodied in

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statute.”

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(9th Cir. 2017).

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retaliation claims fail as a matter of law, his derivative claim

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of wrongful termination necessarily fails as well.

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Wrongful Termination in Violation of Public Policy

Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 1150
Because Tenerelli’s age discrimination and

Thus, this Court grants summary judgment to Rite Aid on
Tenerelli’s first cause of action.
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D.

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Breach of Employment Contract and Breach of Implied
Covenant of Good Faith and Fair Dealing

“[T]here is a statutory presumption that employment is

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terminable at will . . .”

Eisenberg v. Alameda Newspapers, Inc.,

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74 Cal. App. 4th 1359, 1386 (Cal. Ct. App. 1999); Cal. Labor Code

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§ 2922.

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of employment with Rite Aid that he “had a reasonable belief that

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he would only be terminated for good cause.”

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Contrary to Tenerelli’s unsupported assertion, it is undisputed

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that he was an at-will employee and he never received anything

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in writing from Rite Aid changing that status.

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Thus, because Tenerelli was an at-will employee, his breach of

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contract claim fails as a matter of law.

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Inc., 24 Cal. 4th 317, 339-344 (Cal. 2000) (agreeing that “an

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employee’s mere passage of time in the employer’s service, even

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where marked with tangible indicia that the employer approves the

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employee’s work, cannot alone form an implied-in-fact contract

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that the employee is no longer at will.”) (emphasis in original).

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Moreover, a terminated at-will employee cannot assert a

Tenerelli argues “it can be inferred” from his 34 years

Opp’n at 8.

UF ¶¶ 5, 15.

Guz v. Bechtel Nat.

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claim for breach of the implied covenant of good faith and fair

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dealing.

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798, 819-820 (Cal. 1999) (affirming dismissal of implied covenant

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claim by at-will employee because “[w]here there is no underlying

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contract there can be no duty of good faith arising from the

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implied covenant”).

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Tenerelli’s breach of implied covenant claim fails.

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Horn v. Cushman & Wakefield W., Inc., 72 Cal. App. 4th

As with his breach of contract claim,

Thus, this Court grants summary judgment to Rite Aid on
Tenerelli’s fourth and fifth causes of action.
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E.

Intentional Infliction of Emotional Distress

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California recognizes a cause of action for intentional

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infliction of emotional distress (IIED) when: (1) there is

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extreme and outrageous conduct by the defendant with the

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intention of causing, or reckless disregard of the probability of

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causing, emotional distress; (2) the plaintiff suffers severe or

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extreme emotional distress; and (3) the defendant’s outrageous

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conduct is the actual and proximate causation of the emotional

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distress.

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Lawler, 704 F.3d at 1245.

Tenerelli’s IIED claim fails as a matter of law.

Tenerelli

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contends the “combination of the age harassment, the excessive

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workload, and the stress of trying to protect the company from

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their own policies built a level of stress that needed to be

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released” and that his “very mellow release in light of the

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stressors was to make a single comment” which “lead to the

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outrageous act of termination.”

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of employment alone is not sufficient to satisfy the standard for

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extreme and outrageous conduct.

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46 Cal. App. 4th 55, 80 (Cal. Ct. App. 1996) (“A simple pleading

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of personnel management activity is insufficient to support a

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claim of intentional infliction of emotional distress, even if

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improper motivation is alleged.”); see also Lawler, 704 F.3d at

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1245-1246.

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assignment of an excessive workload or termination would fall

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within the scope of workers’ compensation, not IIED.

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Regents of Univ. of California, 44 Cal. 4th 876, 902 (Cal. 2008).

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Thus, this Court grants summary judgment to Rite Aid on

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Opp’n at 9.

But a termination

Janken v. GM Hughes Elecs.,

Moreover, distress from personnel decisions like the

Tenerelli’s sixth cause of action.
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Miklosy v.

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III.

ORDER

For the reasons set forth above, Defendant’s Motion for
Summary Judgment is GRANTED in its entirety.

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IT IS SO ORDERED.
Dated:

April 18, 2019

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ECF No. 16.