Golez v. Kerry Inc

Filing 81

ORDER GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (SI, COURT STAFF) (Filed on 1/27/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BACKGROUND The facts of this case were set out in this Court's December 29 Order. In that order, the Court denied defendant's motion for summary judgment on the issues of unlawful discrimination, failure to prevent discrimination, wrongful termination, failure to engage in an interactive process, and back and front pay; and granted defendant's motion on plaintiff's unlawful retaliation, CFRA, and COBRA v. KERRY, INC. and DOES 1-100, inclusive, Defendants. / REYNALDO GOLEZ, Plaintiff, No. C 07-05984 SI ORDER GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Defendant Kerry, Inc. moved for summary judgment on plaintiff Reynaldo Golez's claims arising from plaintiff's termination from his job as a maintenance mechanic at one of defendant's factories. In its December 29, 2008 Order [Docket No. 76], this Court granted defendant's motion on some claims and denied it on others. The Court also gave plaintiff leave to file a supplemental opposition to defendant's motion with regard to plaintiff's claims for intentional infliction of emotional distress and punitive damages. Now before the Court is defendant's motion for summary judgment on these claims. Pursuant to Civil Local Rule 7-1(b), the Court finds that this matter is appropriate for resolution without oral argument. Having considered the arguments of the parties and the papers submitted, and for good cause shown, the Court rules as follows.

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claims. The Court allowed further briefing on plaintiff's claims for intentional infliction of emotional distress and for punitive damages following defendant's corporate deposition on January 8, 2009.

LEGAL STANDARD Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party, however, has no burden to negate or disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only demonstrate to the Court that there is an absence of evidence to support the non-moving party's case. See id. at 325. The burden then shifts to the non-moving party to "designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In deciding a summary judgment motion, the evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [when she] is ruling on a motion for summary judgment." Id. The evidence presented by the parties must be admissible. Fed. R. Civ. P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Punitive Damages

DISCUSSION

California Civil Code § 3294(b) provides: An employer shall not be liable for [punitive] damages . . . , based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. "Malice" is defined as "conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." Cal. Civ. Code § 3294(c). "Oppression" is defined as "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights." Cal. Civ. Code § 3294(c). If, as in this case, the employer is a corporation, "the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation." See Cal. Civ. Code § 3294(b). "The determination whether employees act in a managerial capacity . . . does not necessarily hinge on their `level' in the corporate hierarchy. Rather, the critical inquiry is the degree of discretion the employees possess in making decisions that will ultimately determine corporate policy." Egan v. Mutual of Omaha Ins. Co., 24 Cal.3d 809, 822-23 (Cal. 1979); see also White v. Ultramar, Inc., 21 Cal.4th 563, 566-67 (Cal. 1999) ("[W]e conclude the Legislature intended the term `managing agent' to include only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy."). Plaintiff's claim for punitive damages cannot survive summary judgment for two reasons. First, defendant contends that none of the employees who were involved in the decision to terminate plaintiff was an officer, director, or managing agent of defendant company. In response, plaintiff fails to cite any evidence establishing that there is a factual dispute on this issue. According to plaintiff, the employees involved in the decision to terminate plaintiff were Margarita Rogers (maintenance utility and human resources benefits clerk at the plant), Remi Bisson (maintenance manager at the plant), and Julie Horras (human resources manager). Plaintiff merely relates the job titles of these individuals; he does not cite 3

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any evidence indicating that they made decisions that determined corporate policy.1 Second, plaintiff claimed in the first round of briefing that summary judgment on punitive damages was premature because the corporate deposition would reveal that the safety concerns cited by defendant were pretextual. In his supplemental briefing, plaintiff does not mention the issue of pretext. Instead, plaintiff argues that punitive damages are warranted because defendant had a discriminatory policy and with advance knowledge authorized and ratified actions that constituted a failure to accommodate, discrimination, wrongful termination, and failure to engage in the interactive process. In support of his "policy" theory, plaintiff cites deposition testimony that defendant had a policy that employees could not come back to work unless they obtained a physician's release without restrictions. See Decl. of Randall M. Widmann in Supp. of Pl. Opp. to Def. Mot. for Summ. J. ("Widmann Decl."), at ex. A (Rogers Depo.), Tr. 24:11-16. Assuming that defendant had a policy that machine mechanics could not return to work unless a doctor determined that no work restrictions were necessary, the mere existence of this policy does not amount to "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights" or "conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." See Cal. Civ. Code § 3294(c).2 Indeed, plaintiff cites no evidence challenging defendant's deposition testimony that plaintiff's supervisors acted solely out of concern for the safety of plaintiff and his co-workers. See, e.g., Decl. of Robert H. Brown in Supp. of Def. Reply in Supp. of Mot. for Summ. J., at ex. B (Horras Depo.), Tr. 42:1-11; id., ex. A (Bisson Depo.), Tr. 60:4-

Plaintiff contends that Horras reported to Chester Brock, defendant's director of human resources. Assuming for the sake of argument that Brock is an officer, director or managing agent within the meaning of § 3294(b), plaintiff does not cite any evidence suggesting that Brock had advance knowledge of Horras' acts and ratified or authorized them. Moreover, the deposition testimony plaintiff cites in support of his contention that Horras reported to Brock does not even mention Brock. See Widmann Decl., at ex. C, Tr. 17:20-19:13. None of the authorities cited by plaintiff hold otherwise. Indeed, they demonstrate that the facts presented by this case cannot reach the extreme indifference threshold required for punitive damages. Cf. Wysinger v. Auto. Club of S. Cal., 157 Cal. App. 4th 413, 428 (Cal. Ct. App. 2007) (extreme indifference found where supervisor said, "It doesn't matter what you did for this company in the last 30 . . . years. None of that matters. And you can die at your desk. We'll replace you tomorrow. Nobody cares."). 4
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7. Accordingly, defendant's motion for summary judgment on plaintiff's claim for punitive damages is GRANTED.

2.

Intentional Infliction of Emotional Distress The elements of intentional infliction of emotional distress are: (1) extreme and outrageous

conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Cervantez v. J. C. Penney Co., 24 Cal. 3d 579, 593 (Cal. 1979) (citations omitted). "For [c]onduct to be outrageous [it] must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." Id. (citations omitted). Again, plaintiff claimed in the earlier round of briefing that summary judgment on this issue was premature because the corporate deposition would reveal that safety concerns cited by defendant were pretextual. Plaintiff cites no evidence suggesting defendant's acts were outrageous or contradicting defendant's deposition testimony that plaintiff's supervisors were concerned about his safety and that of other employees. He instead relies on cases that are inapposite because they involve far more extreme acts than those at issue here. See, e.g., Huber v. Standard Ins. Co., 841 F.2d 980, 981 (9th Cir. 1988) (evidence tended to show that the way in which the plaintiff was wrongfully terminated would humiliate and degrade him, and that the employer abused its power to humiliate the plaintiff); Robinson v. Hewlett-Packard Corp., 183 Cal. App.3d 1108, 1130 (Cal. Ct. App. 1986) (plaintiff cited evidence that supervisor had intentionally insulted plaintiff "and his race."). Accordingly, defendant's motion for summary judgment on this issue is GRANTED.

3.

Reconsideration of this Court's Prior Order Concerning Front and Back Pay Defendant requests that the Court reconsider its prior order denying defendant's motion for

summary judgment on the issues of front and back pay. The Court denied defendant's claim because defendant cited no authority establishing that the Title VII rule concerning back pay applies in the 5

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FEHA context. See Dec. 29 Order, at *10. At oral argument, the Court gave defense counsel an opportunity to cite authorities in support of his motion, but counsel responded that he had not found any. Now defendant asks the Court to consider several cases, all of which could have been identified by defendant in the earlier round of briefing. The Court will not do so as defendant has not made the showing necessary for a motion for reconsideration. See Local Rule 7-9(b). In any event, none of the authorities cited by defendant establishes that the rule on the tolling of backpay liability from Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 228-29 (1982) applies to the FEHA. Accordingly, defendant's motion for reconsideration of this issue is DENIED.

CONCLUSION Defendant's motion for summary judgment on plaintiff's claims for punitive damages and intentional infliction of emotional distress is GRANTED.

IT IS SO ORDERED.

Dated: 1/27/09

SUSAN ILLSTON United States District Judge

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