Opinion
No. C02-0536 TEH
December 3, 2002
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter came before the Court on November 18, 2002, on Defendant's Motion for Summary Judgment. After careful consideration of the parties written submissions and oral arguments, and good cause appearing, the Court GRANTS Defendant's motion for the reasons set forth below.
FACTUAL BACKGROUND
Plaintiff Regina Zapponi began working for Defendant CSK Auto, Inc. ("CSK") in July of 1999. When she was hired by Defendant, Plaintiff was 18 years old and had never had a full-time job. Defendant is an auto parts retailer with stores throughout the western United States. Plaintiff was hired as a delivery driver for Defendant's Lakeport, California store. Her responsibilities included answering commercial sales calls, obtaining auto parts from the store's shelves, and delivering parts to Defendant's commercial customers.
Rudy Franco became Defendant's District Manager in October of 1999. As District Manager, Franco was responsible for hiring all management-level employees at the Lakeport store and other stores within his district. CSK stores are generally staffed with a store manager, a first-assistant manager, an assistant manager, sales associates, a commercial accounts (CAM) manager, and a delivery driver. Store manager Dave Cimina and first assistant manager Ken Whaley were responsible for the day-to-day operations of the Lakeport store. Tom Rae, Lakeport's CAM manager, reported to Dave Charbonnier, who was the Northern California district sales manager for commercial sales from July to September of 1999. Rae left the Lakeport store on March 1, 2000. Franco hired Mike Sullivan as a manager-in-training on April 17, 2000, and Sullivan assumed the position of CAM manager on May 22, 2000.
Plaintiff's claims stem from a number of incidents that allegedly occurred between the time she was hired to work as a delivery driver at the Lakeport store in July of 1999 to the time of her resignation in June of 2000. Plaintiff contends that she was denied internal promotions for which she was qualified on a discriminatory basis, sexually harassed and otherwise subjected to inappropriate comments, retaliated against after complaining of her co-workers misconduct, and effectively discharged from her position in Defendant's Lakeport store. Plaintiff makes the following allegations to support her causes of action: (1) Dave Charbonnier, with whom Plaintiff developed a friendship, called Plaintiff at home on at least three occasions. During one conversation, Charbonnier invited Plaintiff on a date and asked if she would leave her boyfriend. (2) Dave Skinner, one of Defendant's commercial customers, frequently made inappropriate comments of a sexual nature during Plaintiff's deliveries to his place of work, Dave's Auto Parts. (3) Dave Cimina repeatedly called Plaintiff "bonehead," and he referred to Skinner and Charbonnier as her "boyfriends." (4) Ken Whaley, whom Plaintiff still considers a friend, once made a vulgar, sexually explicit comment to Plaintiff. (5) Mike Sullivan told Plaintiff that he had placed a camera in the women's restroom. (6) After Plaintiff answered a phone call to the commercial sales department, Sullivan said, "Don't ever answer my phones again." He explained that "commercial customers don't like calling and getting a girl answering the phone to look up their parts. It's fine for you to deliver the parts. They like looking at you, but they don't like hearing you. It embarrasses them or it makes them feel bad." (7) Defendant failed to promote Plaintiff into any of the managerial positions that became vacant during the course of her employment.
PROCEDURAL POSTURE
On September 14, 2000, Plaintiff filed a complaint with the California Department of Fair Employment and Housing (DFEH) against CSK, Dave Charbonnier, Dave Cimina, Tom Rae, Mike Sullivan, and Ken Whaley. Plaintiff requested an immediate right-to-sue notice, which DFEH provided on November 8, 2000. On February 2, 2001, Plaintiff filed a civil complaint in state court against CSK, Charbonnier, Cimina, Rae, Sullivan, and Whaley. In her complaint, Plaintiff alleges the following state law causes of action: (1) wrongful termination in violation of public policy; (2) discriminatory employment practices and retaliation under the California Fair Employment and Housing Act (FEHA); (3) quid pro quo sexual harassment under FEHA against CSK and Charbonnier only; (4) intentional infliction of emotional distress; and (5) negligent infliction of emotional distress. Plaintiff dismissed all of the individual defendants while the case was pending in state court. On January 30, 2002, Defendant CSK removed the action to federal court on the basis of diversity jurisdiction.
Cheryl Victorino, a member of Defendant's human resources department whom Plaintiff contacted during her tenure at CSK, was also named in the administrative complaint.
LEGAL STANDARD
Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Toscano v. Professional Golfers Ass'n, 258 F.3d 978, 982 (9th Cir. 2001). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable fact-finder to return a verdict for the nonmoving party. Id. The court may not weigh the evidence and must view the evidence in the light most favorable to the nonmoving party. Id. at 255.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Id. at 322-323. However, on an issue for which its opponent will have the burden of proof at trial, the moving party can prevail merely by "pointing out to the District Court . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325. If the moving party meets its initial burden, the opposing party must then "set forth specific facts showing that there is a genuine issue for trial" in order to defeat the motion. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 250.
DISCUSSION
A. Wrongful Termination
Plaintiff asserts that she was wrongfully terminated from her position at CSK in violation of California's public policy against sex discrimination and sexual harassment. Complaint at ¶¶ 58-59. Plaintiff claims that her treatment at the hands of other CSK employees, which she characterizes as a "`campaign of harassment,' created an "overall intolerable workplace and prompted her decision to resign." Plaintiffs Opposition to Motion for Summary Judgment ("Plaintiff's Opposition") at 6, 7.
To establish a prima facie case for wrongful termination, a plaintiff must prove that she was constructively discharged in violation of a fundamental public policy embodied in a statute or constitutional provision. Turner v. Anheuser-Busch. Inc., 7 Cal.4th 1238, 1253, 1256 (1994). In addition, the plaintiff must demonstrate a causal nexus between the defendant's violation of public policy and the termination of her employment. Id. at 1253, 1258. In this case, Defendant contends that Plaintiff fails to show that there is a triable issue of fact as to whether she was constructively discharged from Defendant's Lakeport store.
Plaintiff's argument that she did not resign, but instead was terminated, is feeble at best. Plaintiff concedes in her opposition papers that she made the decision to leave CSK. See id. at 7. During her deposition, Plaintiff admitted on numerous occasions that she resigned.See Zapponi Depo. at 250:27-255:9. Plaintiffs "Voluntary Resignation Statement" is included in the materials Defendant submitted in support of this motion. See id Ex. 15. The document Plaintiff presents to support her argument that she was tired, see Haskell Decl., Ex. 9, lacks an adequate foundation and is not sufficient to establish a genuine issue of material fact.
A constructive discharge occurs when "the employer's conduct effectively forces an employee to resign. Although the employee may say `I quit,' the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will." Id. at 1244-1245. In Turner, the California Supreme Court held that in order to establish a constructive discharge claim, an employee must prove that "the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign." Id. at 1251. The burden imposed by a plaintiff alleging a constructive discharge is significant. See Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000) (observing that the standard for constructive discharge is more stringent than that for hostile work environment). As the California Supreme court has explained, "[A]n employee cannot simply `quit and sue.' The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer." Turner, 7 Cal.4th at 1246.
Plaintiff provides almost no evidence that she resigned only when confronted with "intolerable" working conditions. The citations to the record Plaintiff offers, to the extent the evidence she identifies is admissible, show only that Dave Cimina sometimes referred to Plaintiff as "bonehead." See Cimina Depo. at 63:22-24. Plaintiffs remaining arguments that she was constructively discharged consist c a number of broad allegations for which she fails to supply any factual support. This Court, however, "need not examine the entire file for evidence establishing a genuine issue of material fact, where the evidence is not set forth in the opposing papers with adequate references so that it [can] be conveniently found." Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1031 (9th Cir. 2001). See also Orr v. Bank of America, 285 F.3d 764, 774-775 (9th Cir. 2002) (stating that a district court may exclude evidence in an opposition to a motion for summary judgment if the nonmoving party fails to cite to specific excerpts in the record). Under Turner, "adverse working conditions must be unusually `aggravated' or amount to a `continuous pattern' before the situation will be deemed intolerable. In general, `single, trivial, or isolated acts [of misconduct] are insufficient' to support a constructive discharge claim." Turner, 7 Cal.4th at 1247 (citation omitted).
Defendant, on the other hand, has provided evidence that Plaintiff's working environment was far from unbearable. Defendant points to portions of Plaintiff's deposition in which she testified that she was given two pay raises, that Franco established an employee development plan to prepare her to apply for managerial positions, that Defendant hired Plaintiff's fiance based on her referral, and that she was promoted to the position of Merchandise Pro and allowed to work part-time to accommodate her school schedule. This evidence, coupled with Plaintiff's anemic presentation, suggests that Plaintiff's resignation was not coerced. See id. at 1246.
In sum, Defendant has met its burden of showing that Plaintiff lacks sufficient evidence to prove that she was constructively discharged from her position at CSK. Because Plaintiff has failed to "set forth specific facts showing that there is a genuine issue for trial" on this cause of action, summary judgment is appropriate for her claim of wrongful discharge in violation of public policy.
Because the Court concludes that Plaintiff has failed to identify facts demonstrating that Defendant's actions created an intolerable working environment, the Court need not address the objective reasonableness of Plaintiff's decision to resign or Defendant's knowledge of her working conditions. See id. at 1248-1251.
B. Discrimination and Retaliation
1. Retaliation
Plaintiff asserts that Defendant retaliated against her in violation of FEHA after she complained about the alleged incidents of discrimination and harassment. To establish a claim for retaliation, a plaintiff must show (1) that she was engaged in a protected activity, (2) that the defendant subjected the plaintiff to an adverse employment action, and (3) that there is a causal link between the protected activity and the adverse employment action. Akers v. County of San Diego, 95 Cal.App.4th 1441, 1453 (2002). Defendant contends both that Plaintiff failed to exhaust her administrative remedies and that she cannot satisfy any of the elements of a retaliation claim. The Court will address these arguments in turn.
In her Complaint, Plaintiff alleges that Defendant retaliated against her by "discharging her after she voiced her concern about the harassing and discriminating treatment she was receiving." Complaint at ¶ 66. In her Opposition, Plaintiff argues that Defendant retaliated against her by choosing not to promote her. Plaintiffs Opposition at 9, 10, 11.
As is true of all claims under FEHA, a plaintiff who pursues a retaliation cause of action must first exhaust her administrative remedies before proceeding with a civil action. Okoli v. Lockheed Technical Operations Co., 36 Cal.App.4th 1607, 1613 (1995), citing Martin v. Lockheed Missiles Space Co., 29 Cal.App.4th 1718, 1724 (1994) (explaining that an employee must exhaust the administrative remedy provided by FEHA by filing a complaint with DFEH and obtaining a notice of right to sue before bringing a civil cause of action). Exhaustion occurs when the plaintiff "specif[ies] that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts." Id. Because it is undisputed that Plaintiff did not file an administrative complaint for retaliation, the Court may only consider her retaliation claim if it is "like or reasonably related to" the allegations in her DFEH charge. See, e.g., Albano v. Schering-Plough Corp., 912 F.2d 384, 386 (9th Cir. 1990).
In her administrative complaint, Plaintiff indicates that she was harassed, forced to quit, denied promotion, denied equal pay, and discriminated against on the basis of sex. McAdam Decl., Ex. D. She details the nature of the alleged wrongdoing as follows: "I was sexually harassed, denied salary increases males received, sexually solicited, denied promotional opportunities and forced to quit. The employer failed to conduct an appropriate investigation or to take prompt effective remedial action, after being notified of the events." Id.
Under the standard for exhaustion articulated above, the Court concludes that it has jurisdiction over Plaintiff's retaliation claim despite her failure to specifically list it among the allegations in her administrative complaint. Plaintiff alleges that Defendant failed to promote her because she complained to CSK management about the conduct detailed in her DFEH charge. Given the relationship between the retaliation claim and the other allegations, it is reasonable to assume that an investigation into the harassment and discrimination claims would alert Defendant to Plaintiff's allegation that she was denied a promotion in retaliation for speaking out about Defendant's unlawful conduct. See Baker v. Children's Hospital Medical Center, 209 Cal.App.3d 1057, 1065 (1989); cf. Okoli, 36 Cal.App.4th at 1617. This is especially true in light of the fact that in her DFEH complaint, Plaintiff twice alleges that she was denied a promotion, which is the action she claims Defendant took in retaliation against her. Okoli, the case on which Defendant primarily relies, can also be distinguished based on the fact that the alleged retaliation in this case occurred before the filing of Plaintiff's administrative complaint. Cf. Okoli, 36 Cal.App.4th at 1617 (alleged retaliatory acts took place after the plaintiff filed an administrative charge). The Court accordingly rejects Defendant's argument that summary judgment should be granted on Plaintiff's retaliation claim for a failure to exhaust her administrative remedies.
Assuming arguendo that Plaintiff's complaints to various CSK officials (i.e., her managers in the Lakeport store) establish that Plaintiff engaged in a protected activity, and that Defendant's decision not to promote Plaintiff constitutes an adverse employment action, the Court rules that Plaintiff has failed to set forth sufficient evidence that there was a casual connection between these two elements.
CSK District Manager Rudy Franco testified that he is responsible for hiring individuals into all management positions at stores within his jurisdiction. Franco Decl. at ¶ 3. He specified that as to Plaintiff, he "was the sole person responsible for the decision about whether she would be promoted to a management position at the Lakeport store." Id. Franco's testimony is not inconsistent with Plaintiff's assertions that she received day-to-day instruction from other employees. Moreover, the fact that Ken Whaley provided Plaintiff with the computer codes used by the CAM manager does not raise a triable issue. As Whaley himself explained, Plaintiff was simply "holding the position" until a permanent replacement could be found. Whaley Depo. at 30:12-17. Finally, the subjective beliefs of Plaintiff's co-workers regarding her qualifications for a management position are irrelevant to the causation analysis.
In her opposition papers, Plaintiff argues that "[w]hatever the CSK polic's was on control of advancement, the evidence will show that it was not implemented daily in such a fashion." Plaintiffs Opposition at 11. Plaintiff has apparently failed to realize that this is the forum in which she must present sufficient evidence for this Court to conclude that her lawsuit may move forward to trial. Plaintiff has not set forth any evidence to contradict Franco's testimony and therefore falls short of meeting her burden on this issue.
Franco, whom the evidence demonstrates is the only CSK employee who could have refused to promote Plaintiff in retaliation for her complaints, further testified that
"[a]t no time during plaintiff's employment did I have knowledge about any complaints by plaintiff of harassment or discrimination. I did not know she had any concerns about Dave Skinner of Dave's Auto Parts, Dave Charbonnier, Dave Cimina, Ken Whaley or any of her co-workers. I did not receive any negative feedback about plaintiff from these individuals or any other manager at the store. Rather. I made my decisions concerning plaintiff on the basis of the review panel's recommendations and my evaluation of plaintiffs work experience and qualifications, relative to others."
Franco Decl. at ¶ 13. Defendant has thus set forth evidence that the decision not to promote Plaintiff was not motivated by a desire to retaliate against her for complaining about the treatment she allegedly received in the workplace. Because Plaintiff has failed to present contrary evidence sufficient to establish a genuine issue of material fact, summary judgment is appropriate for her retaliation claim.
Plaintiff does point to one piece of evidence that might conceivably create a triable issue of fact on the causation element of her retaliation cause of action. Jeremy Alvord, Plaintiff's fiance and a CSK employee at another location, states that Plaintiff complained to him about the sexually explicit comment Ken Whaley made to her. When asked in his deposition if he ever confronted Whaley about the remark, Alvord testified that "I was told to stay out of it by [Rudy Franco]. After [Plaintiff] mentioned it, he found out, and told me to stay out of it." Alvord Depo. at 32:17-33:4. This suggests that Franco did in fact have knowledge of at least one of the episodes about which Plaintiff now complains. As Defendant argues, however, it is not clear when Franco had this conversation with Alvord (i.e., if they talked while Plaintiff was still working at CSK). Therefore, Alvord's testimony does not necessarily contradict Franco's statement that he was unaware of any of Plaintiff's complaints when he made personnel decisions affecting her.
2. Discrimination
While it is not entirely clear, Plaintiff seems to allege that Defendant engaged in sex discrimination by failing to promote her to a managerial position. To establish a prima facie case of employment discrimination, a plaintiff must show that (1) she is a member of a protected class, (2) she was qualified for the position sought, (3) she was subject to an adverse employment action, and (4) similarly situated persons outside of the plaintiffs protected class were treated more favorably. Chuang v. University of California Davis, 225 F.3d 1115, 1123 (9th Cir. 2000), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The burden of production then shifts to the defendant to assert a legitimate, nondiscriminatory reason for the challenged action. Id. at 1123-1124. If the defendant is successful, the plaintiff must then show that the articulated rationale is pretextual. The plaintiff can do so "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. at 1124 (citation omitted).
Plaintiff asserts that she was denied a promotion to CAM manager or assistant manager of the Lakeport store based on her sex. Plaintiff fails, however, to present evidence that she was qualified for a managerial position or that the men who were hired were done so for pretextual reasons. Plaintiffs citations to the record indicate only that some of her co-workers, including Ken Whaley and Tom Rae, expressed confidence in Plaintiff's ability to handle a manager's responsibilities.
Defendant, on the other hand, has provided a great deal of proof that its personnel decisions were not unlawfully motivated. After Plaintiff expressed interest in advancement into a managerial position, she was interviewed by human resources personnel via telephone on March 15, 2000. Franco Decl. at ¶ 9. Wailun Tom and Cheryl Victorino, two members of the assessment panel, advised Rudy Franco that Plaintiff did not have the requisite experience for a management position. They noted that while she was potentially a promising candidate, Plaintiff had not completed the necessary training and not passed the required tests. Id. On April 9, 2000, Franco met with Plaintiff and assisted her in creating a Management Candidacy Development Plan, which was intended to prepare Plaintiff for a management position. Id. Plaintiff was eventually promoted from delivery driver to Merchandise Pro, and as such was responsible for setting up displays and promotional materials in the Lakeport store. Id. at ¶ 12.
Defendant hired a CAM manager and three assistant store managers during Plaintiff's tenure at CSK. Mike Sullivan, hired as a manager-in-training and ultimately promoted to CAM manager, had experience in the auto parts industry, including work as a mechanic. Id. at ¶ 10. Justin Heath, Jake Tillman, and Stewart Buchta were hired as assistant store managers. Heath had worked for a number of years in law enforcement, Tillman had seven years of experience in the auto parts and repair business, and Buchta was 40 years old and had held many full-time jobs (including work as a manager in a formal wear store and a job repairing motors). Id. Defendant concludes that each of these men "had more work experience and greater auto parts knowledge than Plaintiff." Defendant's Motion for Summary Judgment ("Defendant's Motion") at 12 n. 6.
Plaintiff argues that Defendant's focus on Buchta's age suggests that Defendant also engaged in age discrimination. See Plaintiff's Opposition at 11. She offers no evidence for this assertion, however.
The Ninth Circuit has "set a high standard for the granting of summary judgment in employment discrimination cases." Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). To that end, "very little evidence" is needed to raise a factual dispute over whether an employer acted with discriminatory intent, or whether the employer had a legitimate nondiscriminatory motive for its actions. Id. at 1410-11. Plaintiff has failed to establish a triable issue of fact under this permissive standard. Defendant has set forth evidence that it did not act in a discriminatory fashion, and Plaintiff has not persuaded the Court that "a discriminatory reason more likely motivated [Defendant]" or that "[Defendant's] proffered explanation is unworthy of credence." Chuang, 225 F.3d at 1124. Summary judgment is therefore appropriate for Plaintiff's sex discrimination cause of action.
C. Sexual Harassment
1. Quid Pro Quo
Plaintiff alleges that Dave Charbonnier's conduct towards her amounted to quid pro quo sexual harassment. Complaint at ¶¶ 69-70. This cause of action "involves the behavior most commonly regarded as sexual harassment," such as sexual propositions or other verbal, visual, or physical conduct of a sexual nature. Mogilefsky v. Superior Court, 20 Cal.App.4th 1409, 1414 (1993). A plaintiff must establish that a term or condition of employment was expressly or impliedly conditioned upon her acceptance of another's unwelcome sexual advances. Id. Plaintiff claims that Charbonnier made unwelcome sexual advances, and that he implicitly conditioned her promotion opportunities on her acceptance of these requests.
Plaintiff's evidence falls far short of that required to survive a motion for summary judgment. Plaintiffs allegations center around three telephone calls she received from Charbonnier. During one conversation, Charbonnier invited her to have dinner with him and asked if she was going to leave her boyfriend. Charbonnier's comments during the other conversations were not even remotely sexual in nature. Plaintiff also claims that her boyfriend's angry reaction to Charbonnier calling her at home late at night made her feel uncomfortable about speaking with him. Plaintiff provides no legal authority to support her argument that these telephone calls somehow constitute actionable sexual advances. Even more glaring is Plaintiff's lack of evidence that Charbonnier conditioned her opportunities for advancement at work on her acceptance of his allegedly sexual requests.
Even more glaring is Plaintiff's lack of evidence that Charbonnier conditioned her opportunities for advancement at work on her acceptance of his allegedly sexual requests. Plaintiff argues that a genuine issue of material fact exists as to whether Charbonnier had any role in Defendant's failure to promote Plaintiff, and she contends that Charbonnier's management position and supposed sexual advances give rise to the inference that Plaintiffs employment prospects somehow suffered as a result of her rejecting Charbonnier's invitation. Plaintiff, however, presents no evidence that Charbonnier, who transferred to another position in September of 1999 and had no further involvement with the Lakeport store, was in any way linked to any adverse employment action. In fact, Charbonnier testified that he was never asked if he thought Plaintiff should be promoted. Charbonnier Depo. at 91:1-4. Plaintiffs counsel's suggestion at oral argument that Charbonnier at some point made promotion recommendations to Franco is similarly lacking an evidentiary foundation.
As has been explained, District Manager Rudy Franco was solely responsible for all promotion decisions in the Lakeport store. See Franco Decl. at ¶ 3. Plaintiff has not offered contradictory evidence on this point.
Because Plaintiff's claim of quid pro quo sexual harassment lacks factual and legal support, the Court concludes that Defendant is entitled to judgment as a matter of law on this issue.
2. Hostile Work Environment
Plaintiff does not assert a hostile work environment cause of action in her civil complaint. Instead, her complaint alleges only that she was the victim of quid pro quo sexual harassment. See Complaint at ¶¶ 68-72. Plaintiff has not requested leave to amend her complaint to include an additional sexual harassment claim. In her Opposition, however, Plaintiff suggests for the first time that she is also pursuing a hostile work environment cause of action, and she does so by dedicating all of one sentence to this new allegation. In the section of her brief discussing her quid pro quo cause of action, Plaintiff states, "Additionally, Plaintiff has alleged the harassing conditions at CSK were so prevalent as to constitute a hostile work environment." Plaintiffs' Opposition at 12. No citations to the record are given, and no supporting legal authority is provided. During the hearing on this motion, Plaintiff's counsel argued briefly in a general and conclusory manner that Plaintiff's co-workers' behavior over the course of her 11-month period of employment constituted actionable sexual harassment. Given this procedural posture, it is clear that there is not a hostile work environment cause of action properly before the Court at this time. Accordingly, the Court need not reach the merits of Defendant's summary judgment motion with respect to this aspect of Plaintiff's sexual harassment claim.
D. Intentional Infliction of Emotional Distress
Plaintiff alleges that Defendant's actions have caused her severe emotional distress resulting in "headaches, indigestion, and other physical manifestation[s]." Complaint at ¶ 78. To establish a prima facie claim for intentional infliction of emotional distress, a plaintiff must prove the following elements: (1) extreme and outrageous conduct by the defendant; (2) intention to cause, or reckless disregard for the probability of causing, emotional distress; (3) severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Potter v. Firestone Tire and Rubber Co., 6 Cal.4th 965, 1001 (1993), citing Christensen v. Superior Court, 54 Cal.3d 868 (1991).
Defendant argues that Plaintiff's evidence fails to establish either that Defendant engaged in "extreme and outrageous conduct" or that Plaintiff suffered "severe or extreme emotional distress." The Court finds that the evidence presented does not demonstrate that Defendant's conduct was "extreme or outrageous." To meet this element of an intentional infliction of emotional distress cause of action, a defendant's conduct must be "so outrageous in character, and so extreme in degree, to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1068 (9th Cir. 2002) (citation omitted). While there is no bright-line rule defining actionable outrageousness, there is "virtually unanimous agreement" that a plaintiff may not recover for "mere insult, indignity, annoyance, or even threats, where the case is lacking in other circumstances of aggravation." Yurick v. Superior Court, 209 Cal.App.3d 1116, 1128 (1989), citing Prosser Keeton on Torts, § 12 at 59-60
(5th ed. 1984). Because liability "cannot be extended to every trivial indignity," a defendant cannot typically be held legally responsible for "mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances." Id. In sum, a plaintiffs "hurt feelings" are insufficient to justify recovery for intentional infliction of emotional distress. Id.
Plaintiff has not presented sufficient factual support to meet this significant burden. The comments her co-workers made to her, while certainly tasteless and insensitive, do not qualify as "extreme and outrageous" under the definition set forth above. Mike Sullivan's remarks, even to the extent that they might be considered discriminatory, are not sufficient to allow recovery for intentional infliction of emotional distress. See King v. ACR Advertising, 65 F.3d 764, 770 (9th Cir. 1995) (citation omitted) (concluding that the defendant's age-related comments, while "offensive and perhaps discriminatory, were `not so egregiously outside the realm of civilized conduct to give rise to actionable infliction of emotional distress'"). Plaintiff's allegation that she was improperly denied a promotion similarly does not state a claim for emotional distress. See Janken v. GM Hughes Electronics, 46 Cal.App.4th 55, 80 (1996) (stating that the remedy for an unlawfully motivated personnel decision is an employment discrimination action, not an emotional distress suit). Because Defendant's actions cannot, as a matter of law, "reasonably be regarded as so extreme and outrageous as to permit recovery," summary judgment is appropriate for Plaintiff's intentional infliction of emotional distress claim. Schneider v. TRW Inc., 938 F.2d 986, 992 (9th Cir. 1991).
Plaintiff's failure to set forth evidence that she suffered "severe or extreme emotional distress" provides a second, independent reason for granting summary judgment on this cause of action. To satisfy this element of her claim, Plaintiff must show that she experienced "emotional distress of such substantial quantity or enduring quality that no reasonable [person] in a civilized society should be expected to endure it." IA. (citation omitted). See also Cain v. Burroughs Corp., 560 F. Supp. 849, 853 (C.D.Cal. 1983) (finding that embarrassment, humiliation, and lack of confidence are not sufficient for a claim of intentional infliction of emotional distress under California law). Dave Cimina's testimony that Plaintiff was "a little misty" after returning from a delivery at Dave Skinner's shop, Cimina Depo. at 59:27-60:3, coupled with Jeremy Alvord's testimony that Plaintiff was "down on herself about the job," experienced weight gain, wanted to sleep late, and was uncomfortable around men, Alvord Depo. at 77:2-14, does not establish that Plaintiff suffered the requisite level of mental anguish. What is most telling, though, is Plaintiff's complete inability to identify a more than trivial level of emotional distress that she purportedly suffered as a result of her co-workers' conduct. See Zapponi Depo. at 319:15-321:17.
Because there is not a genuine issue of material fact as to whether Defendant engaged in "extreme and outrageous" conduct or whether Plaintiff suffered "severe or extreme emotional distress," Potter, 6 Cal.4th at 1001, summary judgment is appropriate for her fourth cause of action for intentional infliction of emotional distress. E. Negligent Infliction of Emotional Distress
In light of the Court's conclusion that Plaintiff cannot, as a matter of law, satisfy the elements of her intentional infliction of emotional distress claim, the Court need not address Defendant's argument that this cause of action is preempted by the Workers' Compensation Act.
Plaintiff bases her cause of action for negligent infliction of emotional distress on Defendant's purported failure to conduct a reasonable investigation into her allegations of sexual harassment and employment discrimination. Complaint at ¶ 81. The California Supreme Court has explained that there is no independent cause of action for negligent infliction of emotional distress. Potter, 6 Cal.4th at 984. Instead, the tort is simply one of negligence:
"[U]nless the defendant has assumed a duty to [the] plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests."Id. at 984-985.
This brief recitation of the relevant legal standard makes clear that Plaintiff has failed to present evidence establishing the existence of a genuine issue of material fact with respect to her negligent infliction of emotional distress cause of action. The relevant section of Plaintiff's Opposition does not even mention Defendant's alleged failure to investigate her complaints, let alone explain how Defendant's actions satisfy the elements of a basic negligence cause of action. While Plaintiff makes several references throughout her brief to Defendant's failure to act upon her allegations against Charbonnier and Skinner, they are conclusory and without adequate citations to the record. Plaintiff has simply followed a pattern of trying to fit a given set of facts into as many causes of action as she can conceive. Plaintiff has provided no additional facts to prop up this claim, which cannot stand on its own. Summary judgment is therefore appropriate on Plaintiff's fifth cause of action for negligent infliction of emotional distress.
CONCLUSION
For the foregoing reasons, the Court concludes that Plaintiff has failed to set forth sufficient evidence demonstrating that there are genuine disputes of material fact that warrant allowing this case to proceed to trial. Accordingly, and good cause appearing, Defendant's Motion for Summary Judgment is GRANTED in its entirety. The Clerk shall close the file.
Defendant raises numerous objections to the evidence Plaintiff submitted in opposition to the motion for summary judgment. Given the Court's disposition of this matter, the Court need not reach the merits of these evidentiary objections.