Rey v. C&H Sugar Company, Inc. et al

Filing 111

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 58 (Illston, Susan) (Filed on 11/28/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DAVID REY,

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United States District Court
For the Northern District of California

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No. CV 10-01970 SI
Plaintiff,
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

v.
C&H SUGAR CO., INC.; AMERICAN SUGAR
REFINING, INC.; and DOES 1-100,
Defendants.
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On October 5, 2012, the Court heard argument on defendants’ motion for summary judgment.

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The Court requested and received supplemental briefing on issues raised in oral arguments. Having

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carefully considered the arguments of counsel and the papers submitted, the motion is GRANTED, for

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the reasons set forth below.

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BACKGROUND

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Plaintiff David Rey was hired by defendant C&H Sugar Co., Inc. (“C&H”) as a Warehouse

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Supervisor in March 2007. He supervised personnel in the loading of trucks with pallets of sugar for

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shipment. C&H fired him a year and a half later in October 2008. Rey filed a complaint in April 2010

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against defendants C&H Sugar Co., Inc., American Sugar Refining, Inc., and Does 1-100 (collectively

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“C&H”), alleging, inter alia, that his termination was the result of age discrimination and was done in

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retaliation for his complaint of age discrimination to HR personnel. The following causes of action

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remain contested by the parties: (1) age discrimination; (2) retaliation; (3) wrongful termination; (4)

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failure to prevent discrimination and retaliation; and (5) intentional infliction of emotional distress.

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1.

Early Performance

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Plaintiff Rey was interviewed twice by C&H before he was hired as a Warehouse Supervisor

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on March 19, 2007. Decl. of David Rey in Supp. of Opp’n to Mot. for Summ. J. (“Rey Decl.”) ¶ 2.

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He had many years of previous experience as a supervisor in large warehouses. Id. At C&H, his main

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responsibility was to supervise a shift of union employees who loaded the trucks with sugar pallets. Id.

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at ¶ 3. This included ensuring employee compliance with company policies, preparing shift reports,

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checking outgoing shipments, checking employee time clocks, and monitoring inventory. Id.
Plaintiff Rey’s immediate supervisor was Warehouse Manager Don White, and White’s

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supervisor was Plant Manager Ray Fairman. Id. at ¶ 4. In September 2007, White gave Rey his first

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United States District Court
For the Northern District of California

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performance evaluation, and the summary appraisal rating was “Needs Improvement: Indicates

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performance that does not meet the established requirements of the position. . . . appropriate for

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employees that are new to a position where there is need for continual learning to get up to speed.” Id.,

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Ex. B at 2 (emphasis in original). This rating is the lowest of three possible ratings. White testified that

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he did not remember if Rey was performing substantially more poorly than the other Warehouse

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Supervisors, but he did remember that Rey showed a lot of empathy for the union workers he

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supervised. Kenneth N. Frucht’s Decl. in Supp. of Pl.’s Supplemental Papers in Supp. of Opp’n to

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Defs.’ Mot. for Summ. J., Ex. B (“White Dep.”) 58, 78.

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Assistant Warehouse Manager Cesar Landa initially trained Rey. Decl. of Cesar Landa in Supp.

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of Mot. for Summ. J. (“Landa Decl.”) ¶ 5. Landa observed that Rey had “difficulties in learning and

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performing his job” and informed White of these problems in October 2007. Id. at ¶¶ 6-10. At White’s

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instruction, Landa began to record these examples of poor performance in a memo that contained twenty

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incidents from October 8, 2007 to December 13, 2007. Id. at ¶ 10. The deficiencies that Landa noted

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included such issues as a failing to complete tasks in a timely fashion, neglecting to maintain coverage

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when employees called in sick, failing to setup materials for the next shift, and leaving shipments

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waiting to be loaded or unloaded. Id. Furthermore, from March 1 to March 15, Landa documented

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Rey’s failure to meet the standard of loading 40 trucks per shift; he loaded 35 trucks on 4 days, fewer

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than 35 trucks on 7 days, and fewer than 30 trucks on 4 days. Id. at ¶ 14.

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On October 27, 2007, Landa spoke with Fairman about Rey’s deficient performance. Id. at ¶
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11. Rey opposition briefing provides explanations or refutations for most of these performance

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deficiencies, and defendants make counter-arguments. See Rey Decl. at ¶ 11; Reply at 2-6.

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Warehouse Superintendent Jake Peterson was also responsible for training Rey. Decl. of Jake

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Peterson in Supp. of Mot. for Summ. J. (“Peterson Decl.”) ¶¶ 2-3. Peterson observed that Rey had

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trouble learning on the job. Id. at ¶¶ 3-4. Later on, Peterson observed that Rey’s shift employees did

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not respect him, and Rey would often fail to communicate issues to the next supervisor. Id. at ¶ 6. In

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December, Peterson prepared a memo to Landa outlining a particular mistake Rey had made: after

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Peterson carefully explained how to fulfill the order correctly, Rey loaded it incorrectly. Id. at ¶ 5. Rey

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asserts that Peterson had set up the order incorrectly. Rey Decl. ¶ 11.

United States District Court
For the Northern District of California

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2.

Alleged Discriminatory Actions

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On March 4, 2008, C&H hired Lemmie Adams to replace White as the Warehouse Manager.

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Rey Decl. at ¶ 12. Rey alleges that at a weekly supervisors meeting on March 17, 2008, Adams gestured

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towards him and said, “Hell . . . you’re old. We can all see that.” Id. at ¶ 14. At the time, Rey was

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fifty-four years old. Adams is two years older than Rey. Decl. of Jill Nohl in Supp. of Mot. for Summ.

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Judgement (“Nohl Decl.”) ¶¶ 4-5.

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On March 21, 2008, Adams and Landa met with Rey to discuss his poor performance, and

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specifically his failure to meet the standard of loading 40 trucks per shift. Rey Decl. at ¶ 15; Landa

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Decl. at ¶ 14. As a result, Adams reassigned Rey to work in inventory for two weeks and receive further

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training. Rey Decl. at ¶ 15.

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On March 24, 2008, Rey met with HR Manager Francine Cronin and told her about the “you’re

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old” comment. Id. at ¶ 16. He also told her about his reassignment to inventory and explained that he

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believed he was being singled out based on his age. Id. Cronin undertook an investigation of the

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incidents, and interviewed Adams and eight of the ten other employees who were at the meeting.

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Kenneth N. Frucht’s Decl. in Supp. of Opp’n to Mot. for Summ. J. (“Frucht Decl.”), Ex. B (“Cronin

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Dep.”) 80-91. In her report, Cronin related that none of the witnesses confirmed Adams’s remarks about

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Rey’s age. Id., Ex. E at 2. She also noted that six of the eight warehouse supervisors were over forty

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years old. Id.
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Subsequent Performance Issues
After Adams’s alleged “you’re old” comment, various employees at C&H continued to

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document Rey’s poor performance, and the following examples are undisputed. In April 2008, Landa

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asked Rey to repaint the warehouse sanitation lines, and found that he did a poor job. Rey Decl. at ¶

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23. On May 7, Landa informed Adams that Rey had only loaded 29 trucks on his shift, while another

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superintendent (who had only been working two months) had loaded 39 trucks. On May 22, Landa

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complained that Rey authorized a shift change and a bank day without informing the day shift

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superintendent. Id. at ¶ 27. On May 23, Rey failed to bring in pallets from outside during his shift as

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instructed by Landa, which required a worker to be kept overtime. Id. at ¶ 29. On June 10, Landa sent

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United States District Court
For the Northern District of California

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Rey an email remonstrating him for his messy work station; a drum of molasses had spilled, and Rey

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did not clean it up immediately. Id. at ¶ 33.

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Rey also points to instances where he performed well at work. In December, Rey was included

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on an email that praised the recent shipping improvements. Id., Ex. D. During one week in May, his

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team loaded more than any other shift. Id. at ¶ 42. In July, a supervisor emailed Rey and four others

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praising their work during the holiday week. Id., Ex. R.

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On June 3, 2008, Adams gave Rey a written performance review. Id. at ¶ 31. Each category was

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marked “marginal” or “unsatisfactory,” and all goals were marked “Not Achieved.” Id. On July 22,

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Adams placed Rey on a Performance Improvement Plan. Id. at ¶ 34. The plan outlined six specific

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areas for improvement, including performing regular inventory counts, physical maintenance of his

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warehouse area, time clock management of his shift employees, meeting productivity standards, and

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communicating shift issues. Landa Decl., Ex. H.

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On September 3, 2008, Inventory Clerk Louie Bortolussi did a random audit of Rey’s station,

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and found that of the fourteen locations with inventory, only one location had the correct count of

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inventory. Landa Decl. at ¶ 22, Ex. 1. In October 2008, Landa also documented two specific instances

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when Rey failed to correct his employee’s time-punch errors. Id. at ¶ 24; Landa Decl., Ex. K. Rey was

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terminated on October 31, 2008. Rey Decl. at ¶ 43. He was replaced by Stacy Wise, who was in his

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thirties at the time. Id. at ¶ 15.

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LEGAL STANDARD

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Summary adjudication is proper when “the pleadings, depositions, answers to interrogatories,

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and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any

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material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

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56(c).
In a motion for summary judgment, “[if] the moving party for summary judgment meets its

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initial burden of identifying for the court those portions of the materials on file that it believes

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demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so

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that “the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific

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United States District Court
For the Northern District of California

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facts showing that there is a genuine issue for trial.’” See T.W. Elec. Service, Inc. v. Pacific Elec.

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Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317

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(1986)).

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In judging evidence at the summary judgment stage, the Court does not make credibility

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determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the

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nonmoving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v.

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Zenith Radio Corp., 475 U.S. 574 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).

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The evidence presented by the parties must be admissible. Fed. R. Civ. P. 56(e). Conclusory,

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speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and

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defeat summary judgment. See Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49 (2d

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Cir. 1985); Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

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DISCUSSION
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Age Discrimination

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In employment discrimination cases, the Court applies the three-step analysis framework set

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forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the

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plaintiff must make a prima facie showing of discrimination. McDonnell Douglas Corp., 411 U.S. at

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802. The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the

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adverse employment decision. Id. Finally, the burden shifts back to the plaintiff to show that the
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employer’s proffered explanation is merely a pretext for a discriminatory motive. Id. at 804.

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A.

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A plaintiff can make out a prima facie case of age discrimination by showing that: “(1) he is a

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member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse

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employment action; and (4) similarly situated individuals outside his protected class were treated more

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favorably, or other circumstances surrounding the adverse employment action give rise to an inference

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of discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 604 (9th Cir. 2004). The Ninth

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Circuit has repeatedly emphasized that a plaintiff’s burden in establishing a prima facie case of

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For the Northern District of California

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discrimination is “minimal.” Coghlan v. American Seafoods Co. LLC., 413 F.3d 1090, 1094 (9th Cir.

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2005). If the plaintiff is over forty years of age, he is part of the protected class. See 29 U.S.C. §

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623(a); O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996).

Prima Facie Case

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Plaintiff Rey is a member of a protected class because he was fifty-five years old when he was

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fired from C&H. He was qualified for his position based on many years of experience. Rey

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experienced an adverse employment action when he was fired from his job. The circumstances giving

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rise to an inference of age discrimination are that his supervisor said “Hell, you’re old” and that he was

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replaced by a younger employee. See Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1148-49 (9th

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Cir. 1997) (manager’s comment that co-worker was a “dumb Mexican” could be evidence of

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discrimination against plaintiff and satisfied prima facie case). Thus, the Court finds that Rey has met

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his burden in establishing a prima facie case for age discrimination.

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B.

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C&H offers numerous examples of Rey’s poor performance to show that it had a legitimate

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reason for terminating Rey. His first performance evaluation by White was an overall assessment of

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“Needs Improvement.” Landa and Peterson both documented instances of poor performance before

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Adams was even hired by C&H. After Adams was hired, Landa continued to document examples of

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Rey’s poor performance. Adams gave Rey a performance evaluation in which all categories were

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“marginal” or “unsatisfactory.” After continued documentation of poor performance, Adams placed

Legitimate Reason for Termination

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Rey on a Performance Improvement Plan. Subsequently, Bortolussi found Rey had incorrect inventory

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counts during a random audit, and Landa documented two specific examples of Rey’s employees’ time-

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punch errors. Notably, inventory count and employee time-punch errors were two of the six areas for

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improvement on the PIP. Thus, the Court finds that defendants have met their burden to articulate a

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legitimate, non-discriminatory reason for the adverse employment action.

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C.

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If the employer sustains its burden, the presumption of discrimination disappears, and the

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plaintiff must show that the proffered reasons are pretexts for discrimination. Guz v. Bechtel Nat. Inc.,

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For the Northern District of California

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24 Cal. 4th 317, 356 (2000). “Although a plaintiff may rely on circumstantial evidence to show pretext,

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such evidence must be both specific and substantial.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d

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1054, 1062 (9th Cir. 2002). A plaintiff’s subjective personal judgments of his competence alone do not

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raise a genuine issue of material fact. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1285 (9th Cir.

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2000). Additionally, a previous supervisor’s good review is not enough to show pretext. See e.g., Rojas

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v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002) (“Different supervisors may impose different standards

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of behavior, and a new supervisor may decide to enforce policies that a previous supervisor did not

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consider important.”).

Pretext

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To show pretext, Rey broadly asserts that the accusations of his poor performance were

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fabricated as a result of the discrimination against him. Opp’n at 16-17. As evidence of fabrication, he

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cites to examples indicating his good performance, such as emails from different supervisors to Rey and

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others praising their work, and his excellent week in May. He also cites to White’s opinion that he was

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performing no worse than the other Warehouse Supervisors when White left C&H. Plaintiff suggests

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that Landa’s memo detailing Rey’s poor performance was fabricated because Landa could not produce

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the original digital version for forensic analysis to show its when it was created. However, as Landa

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explained and emails from HR personnel corroborate, Landa’s work computer was stolen and he lost

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the files on that computer. Supplemental Decl. of Matthew A. Goodin, Ex. A. Plaintiff has no evidence

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that Landa’s memo was fabricated. The fact that one manager early on did not think that Rey was a poor

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performer, or that Rey was included in general emails praising the supervisors for specific instances of
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good performance, does not mean that C&H fabricated its reasons for firing Rey.

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Rey offers excuses for many of the examples of his poor performance. However, Rey does not

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dispute the following of instances of his poor performance: his first appraisal rating was “Needs

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Improvement,” his failures to meet to 40 truck quota, his incorrect painting of the sanitation lines, his

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authorizations of personnel changes without following proper protocol, his failure to bring pallets inside

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as instructed, his failure to clean his workstation immediately, his poor second performance review, his

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failed inventory audit, and his failure to correct employee time-punch errors. Thus, despite his evidence

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of good performance and his contestations of the cited examples of poor performance, the ample

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undisputed examples of his poor performance show that C&H’s reasons are not pretextual.

United States District Court
For the Northern District of California

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Furthermore, the context suggests that the accusations of poor performance were not false or

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pretextual. Plaintiff Rey’s poor performance was noted by multiple people besides Adams, including

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Landa, Peterson, and Bortolussi. None of these persons have been accused of age discrimination or

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retaliation. Moreover, his poor performance was documented before Adams was hired. Additionally,

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Adams is two years older than Rey, and six of the eight Warehouse Supervisors are over forty. An HR

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investigation by C&H found no evidence of age discrimination, and Rey can offer no other evidence

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besides the single remark by Adams. Rey’s bare allegations of fabrication or prior good performance

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are not enough to show pretext.

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Accordingly, defendants’ motion for summary judgment is granted as to this claim.

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2.

Retaliation

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In retaliation cases, the Court applies the same McDonnell Douglas three-step analysis, shifting

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the burden between the plaintiff and defendant. Villiarimo, 281 F.3d at 1064. To make out a prima

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facie case of retaliation, the plaintiff must show: “(1) involvement in protected activity opposing an

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unlawful employment practice, (2) an adverse employment action, and (3) a causal link between the

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protected activity and the adverse action.” Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006).

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For the first element, a plaintiff need only show that “the opposition is based on a reasonable

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belief that the employer has engaged in an unlawful employment practice.” Id. (quoting Moyo v. Gomez,

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40 F.3d 982, 984 (9th Cir.1994) (emphasis in original)). The law is clear that complaining about another
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employee’s discriminatory practices is a protected activity. See O’Day v. McDonnell Douglas

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Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996). Here, Rey argues that he engaged in a protected

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activity in March 2008 when he complained to HR about his belief that Adams was discriminating

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against him because of his age. He told HR about Adams’s comment, “Hell . . . you’re old,” and the

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fact that Adams had moved him to an inventory position only four days later. Because Rey’s belief was

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reasonable based on those facts, the first element is met. Plaintiff Rey also establishes the second

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element for a prima facie case of retaliation. When he was fired by C&H in October 2008, he suffered

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an adverse employment action.
In order to show a causal link between the protected activity and the adverse action, the plaintiff

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For the Northern District of California

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need only that establish knowledge by the employer and temporal proximity to make a prima facie case.

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See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003); Loggins v.

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Kaiser Permanente Int’l, 151 Cal. App. 4th 1102, 1112 (2007). Then the burden shifts to the defendant

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to provide a legitimate, non-retaliatory reason for the adverse employment action. See McDonnell

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Douglas Corp., 411 U.S. at 802; Loggins 151 Cal. App. 4th at 1112. If the employer meets its burden,

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then the burden returns to the plaintiff to establish that the reason was pretextual. Id.

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Plaintiff Rey argues that he has established a prima facie case because Adams knew about the

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his complaint to HR and there is temporal proximity. He asserts that because Cronin conducted an

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investigation and asked Adams about his comment, Adams knew about the complaint. He also asserts

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a temporal proximity because he was fired seven months after the protected activity.

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Even assuming that Rey can make a prima facie case of causation, C&H has provided a

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legitimate reason for firing Rey because of the many documented and undisputed instances of poor

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performance, some of which were documented before he complained to HR – indeed, before Adams was

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even hired as Warehouse Manager. Thus, Rey cannot establish that retaliation was the cause of C&H

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firing him.

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Accordingly, defendants’ motion for summary judgment is granted as to this claim.

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3.

Wrongful Termination
Rey argues that he has been wrongfully terminated because of age discrimination and unlawful
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retaliation. However, Rey’s wrongful termination claim fails because he cannot establish either a

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retaliation or a discrimination claim. Accordingly, defendants’ motion for summary judgment is granted

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as to this claim.

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4.

Failure to Prevent Discrimination and Retaliation

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Similarly, Rey’s claim that C&H has failed to prevent discrimination and retaliation is based on

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the same age discrimination and retaliation claims alleged in his first two causes of action, and fails for

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the same reason. Accordingly, defendants’ motion for summary judgment is granted as to this claim.

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For the Northern District of California

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5.

Intentional Infliction of Emotional Distress

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The elements of the tort of intentional infliction of emotional distress are: (1) extreme and

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outrageous conduct by the defendant with the intention of causing, or reckless disregard of the

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possibility of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional

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distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous

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conduct. See Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1001 (1993). To meet the first

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element, a defendant’s conduct must be “so outrageous in character, and so extreme in degree, to go

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beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

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civilized community.” Villiarimo, 281 F.3d at 1068.

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Here, the Court finds that defendants’ actions, although they might be considered offensive, are

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not sufficient to allow recovery for intentional infliction of emotional distress. See King v. AC & R

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Advertising, 65 F.3d 764, 770 (9th Cir. 1995) (finding defendant’s age-related comments, while

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“offensive and perhaps discriminatory, were ‘not so egregiously outside the realm of civilized conduct

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to give rise to actionable infliction of emotional distress’”) (citation omitted); see also Janken v. GM

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Hughes Electronics, 46 Cal. App. 4th 55, 80 (1996) (holding that the remedy for an unlawfully

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motivated personnel decision is an employment discrimination action, not an emotional distress suit).

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Because defendants’ actions cannot reasonably be regarded as so extreme and outrageous as to permit

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recovery, defendants’ motion for summary judgment is granted as to this claim.

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CONCLUSION
For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendants’
motion for summary judgment. (Docket No. 58).

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IT IS SO ORDERED.

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Dated: November 28, 2012
SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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