Defendant Les Schwab Reply Memorandum of Points And Authorities In Support of Motion For Summary Judgment

Reply

Cal. Super. - 3rd Dist.May 9, 2017

F O S T E R E m p l o y m e n t L a w 30 00 La ke sh or e Av en ue O a k l a n d , Ca li fo rn ia 9 4 6 1 0 Oo 0 39 O N nn Bh W N = N N N N N N N N N = m e e e m e s ee e s e s e s KR NN NN nn ph W N = O O N Y R E W I N D = O MICHAEL W. FOSTER (State Bar No. 127691) MICHAEL E. WILBUR (State Bar No. 152361) MARK J. ZEMBSCH (State Bar No. 127901) FOSTER EMPLOYMENT LAW 3000 Lakeshore Avenue Oakland, CA 94610 Telephone: (510) 763-1900 Facsimile: (510) 763-5952 Email: mzembsch@fosteremploymentlaw.com Email: kpitzak@fosteremploymentlaw.com Attorneys for Defendants Pr Superior Court of California F County of Butte L 10/12/2018 L. E | = D soy cig DO By Deputy Electronically FILED LES SCHWAB TIRE CENTERS OF CALIFORNIA, INC. LES SCHWAB TIRE CENTERS OF CENTRAL CALIFORNIA, INC. and ROB ROBERTSON SUPERIOR COURT OF STATE OF CALIFORNIA COUNTY OF BUTTE JAMES BAKER, an individual, Plaintiff, Vs. LES SCHWAB TIRE CENTERS OF CALIFORNIA, INC., a California Corporation; LES SCHWAB TIRE CENTERS OF CENTRAL CALIFORNIA, INC., a California Corporation, ROB ROBERTSON, an Individual; and DOES 1- 20, inclusive, Defendants. er N a r ? N a e N a e ’ N a N a e N a ’ a e ar t a a e ao e N a e a e N a a a o a a a N e o t Case No. 17CV01236 Assigned for All Purposes to the Hon. Michael P. Candela DEFENDANT LES SCHWAB TIRE CENTERS OF CALIFORNIA, INC.’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Hon. Michael P. Candela Date: October 19, 2018 Time: 9:00 a.m. Dept.: 8 Judge: Action Filed: Trial Date: April 20, 2017 November 26, 2018 REPLY MPA IN SUPP. OF LSTC’S MOTION FOR SUMMARY JUDGMENT BAKER v. LES SCHWAB TIRE CENTERS OF CALIFORNIA, INC., Case No. 17CV01236 F O S T E R E m p l o y m e n t L a w 30 00 La ke sh or e Av en ue O a k l a n d , Ca li fo rn ia 9 4 6 1 0 Oo 0 3 O N an pb 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 99 28 L INTRODUCTION AND SUMMARY OF ARGUMENT Defendant Les Schwab Tire Centers of California, Inc. (“LSTC”) has demonstrated that undisputed material facts establish that it is entitled to judgment as a matter of law on all thirteen causes of action brought by Plaintiff James Baker. In response, Baker admits that LSTC is entitled to judgment on four causes of action.! As to the remaining claims, Baker either admits that all of the material facts upon which this motion is based are undisputed or he fails to cite admissible evidence to controvert them (see Part II below). The absence of admissible evidence sufficient to create a genuine issue for trial on Baker’s claims is best illustrated by Baker’s heavy reliance on evidence of the alleged treatment of Baker’s former co-worker, Eric Merlo. But Baker cannot proceed to trial on Ais claims by relying on evidence about Merlo for the same reason that the Court has already held that Baker and Merlo are separate plaintiffs with separate claims who cannot join their claims in a single lawsuit. “[T]he Court finds Mr. Baker and Mr. Merlo have two different stories. There is an absence of the same transaction or occurrence such that the thrust of their allegations do not intersect at all... the Court finds that the joinder of Mr. Baker’s claims with Mr. Merlo’s claims is not proper. The demurrer is sustained without leave to amend.” (Order Sustaining Demurrer at p. 2, emphasis added.)® In his first and fourth causes of action, Baker is claiming that ze was subj ected to harassment based on his disability and that LSTC is liable for failing to prevent that alleged harassment. But the undisputed material facts establish that Baker was not subjected to actionable harassment in the one- year period before he filed his only complaint with the California Department of Fair Employment and Housing (“DFEH”) For that reason, LSTC is entitled to judgment on his claim that he was “harassed” and on his separate claim that LSTC failed to prevent him from being harassed. In his second, third, tenth, and eleventh causes of action, Baker is claiming that his employment was terminated because of his disability, or alternatively, in retaliation for statutorily !'In footnote 1 of his Opposition brief, on page 7, Baker states that he does not oppose LSTC’s motion as to the 5% (failure to accommodate), 6 (failure to engage in the interactive process), 7% (waiting time penalties), and 9% (itemized wage statements) causes of action. 2 See, Defendants’ Request for Judicial Notice, Exh. 1, filed herewith. 2 REPLY MPA IN SUPP. OF LSTC’S MOTION FOR SUMMARY JUDGMENT F O S T E R E m p l o y m e n t L a w 30 00 La ke sh or e Av en ue Oa kl an d, Ca li fo rn ia 94 61 0 Oo 0 9 NN n b 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 protected activity under the California Fair Employment and Housing Act (“FEHA”) or for engaging in “whistleblower activities” in violation of California Labor Code section 1102.5. As to these claims, Baker cannot defeat summary judgment simply by trying to show that his termination was unfair, without “good cause,” or even “wrong.” Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 358; Hersant v. Calif. Dept. of Social Services, (1997) 57 Cal. App.4th 997, 1005. Instead, the issue is whether Baker has come forward with evidence sufficient to allow a rational trier of fact to find that the termination decision was motivated by an intent to discriminate against Baker or fo retaliate against him for statutorily protected activity. See Guz, 24 Cal.4th at 356; Hersant, 57 Cal. App.4th at 1000; Martin v. Lockheed Missiles & Space Co. 29 Cal. App.4th 1718, 1735 (1994). Baker has not met that burden. The undisputed material facts establish that the sole reason for Baker’s termination was that a few days after Baker instigated an altercation with a co-worker, he responded with a profanity- laced statement to Store Manager Rob Robertson when Robertson was trying to defuse tensions between the two employees to have them both continue working at LSTC. Because Baker fails to present sufficient evidence to show that there is a genuine issue for trial with respect to LSTC’s stated reasons for his termination, LSTC is also entitled to judgment on the second, third, tenth, and eleventh causes of action. Baker’s eighth cause of action is a claim that LSTC failed to provide him rest periods. But the undisputed material facts establish that LSTC complied with its obligation to authorize and permit rest periods. Moreover, Baker does not dispute that he submitted payroll records certifying that he took paid breaks. As such, LSTC is also entitled to judgment on Baker’s eighth cause of action, Finally, Baker based his twelfth and thirteenth causes of action on an alleged “battery” by Baker’s manager, Robert Robertson when Robertson was terminating Baker’s employment. But even if a battery occurred, the law is clear that any tort claim against LSTC based on that alleged battery is barred by the exclusive remedy provision of the Workers” Compensation Act. For all of these reasons and those set out in LSTC’s moving papers, LSTC’s motion for summary judgment should be granted. 3 REPLY MPA IN SUPP. OF LSTC’S MOTION FOR SUMMARY JUDGMENT F O S T E R E m p l o y m e n t La w 30 00 La ke sh or e Av en ue O a k l a n d , Ca li fo rn ia 9 4 6 1 0 O o o 3 AN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IL. UNDISPUTED MATERIAL FACTS Baker’s opposition, including his response to LSTC’s Separate Statement of Undisputed Material Facts, either admits that all of the material facts upon which this motion is based are undisputed or completely fails to cite admissible evidence to controvert them: As to the harassment claim: Baker filed his only complaint with the DFEH on August 8, 2016, and his employment ended on November 17, 2015. (UMF 1 and 2, which Baker admits are undisputed.) Baker admits he was not subjected to any harassing conduct between August 8, 2015 (one year before he filed his only DFEH complaint) and November 17, 2015 (his termination date). Instead, according to Baker, the only harassing conduct to which he was subjected based on his disability were comments from co-workers who “hazed” him for a few weeks in 2014 (well outside the limitations period). (UMF 3, which Baker says is “disputed” but as to which he only cites evidence of events that are alleged to have occurred before August 8, 2015.) No manager at Les Schwab ever made any negative comments about Baker’s disabilities. (UMF 4 which Baker claims is disputed solely because of an alleged vague statement Robertson said in 2011, in the process of hiring Baker.) And Baker never complained to any manager about the “hazing” from coworkers in 2014. (UMF 5 which Baker admits is undisputed.) As to the discrimination and retaliation claims: The only adverse action to which Baker was subjected during the one-year period before he filed his DFEH complaint was his termination in November 2015. (UMF 6, which Baker admits is undisputed.) Baker testified that from August 2014. until his termination on November 17, 2015, he did not have any medical restrictions regarding his ability to work; he did not need any accommodation to perform his job; he did not request any accommodation to do his job; he worked full-time; and he performed his job without any restrictions or accommodations. (UMF 20) Baker says he “disputes” this, but the only evidence he submits is his testimony that he left work early on November 13, 2015 to seek medical treatment, but was able to work his next scheduled shift on November 17, 2015 without any need for accommodation. (UMF 20). Baker never complained of discrimination, harassment or retaliation prior to being terminated. (UMF 22, which Baker admits is undisputed.) On November 13, 2015, Baker initiated a serious incident of dangerous horseplay at work 4 REPLY MPA IN SUPP, OF LSTC’S MOTION FOR SUMMARY JUDGMENT = © wt oo - qq = S© < 0 Fo > Elo P= - co 0 L cm a= £E Co ©. ws = MSs He Ho wn le] Fu No Oo 0 9 NN n n Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 by squirting a co-worker in the crotch with brake cleaner. (UMF 7, which Baker admits is undisputed.) When the co-worker went back to work, Baker came back into the co-worker’s area, and the co-worker got splashed again with brake cleaner, and the co-worker responded by throwing a pair of pliers at Baker, which caused a cut on Baker’s leg. (UMF 8-10, which Baker says is “disputed” only because he claims the co-worker had brake cleaner in a cup next to him.) Over the next few days after the horseplay, Robertson talked with both Baker and the co- worker, and both employees assured Robertson that they could work together. (UMF 12-14, which Baker admits are undisputed.) Both employees were retained, and in the first few minutes of their first scheduled shift together after the brake clean incident, Baker cursed at Robertson and referred to his co-worker, saying either: “I’m not working with this fucking guy!” or “I'm not fucking hugging this guy.” (UMF 16, which Baker does not controvert but which he merely argues that Robertson should not have considered his outburst to be profane and unprofessional because Baker says Robertson used profanity at work.) Robertson was upset by Baker’s profane and unprofessional response and he concluded on the spot that Baker was not going to be conciliatory; Robertson was frustrated that he had just spent time in an effort to keep both employees working together, and Baker undermined that just a few minutes after Robertson reached that resolution; so, as a result, Robertson considered Baker’s conduct of instigating the altercation with his co-worker, his profane and unprofessional response, and unwillingness to be conciliatory to be sufficient grounds for discharge. (UMF 17-19, which Baker claims are “disputed” but Baker submits no admissible to controvert, as Baker does not and cannot controvert the undisputed evidence of what Robertson was thinking at the time.) III. ARGUMENT A. LSTC Is Entitled To Judgment As A Matter Of Law On Baker’s First Cause Of Action. 1. Baker cannot base his harassment claim on conduct before August 8,2015 Because of the statutory requirement that a plaintiff exhaust administrative remedies by filing an administrative complaint with the DFEH within one year of the alleged unlawful act, a plaintiff suing for violations of FEHA ordinarily cannot recover for acts occurring more than one year before the filing of the DFEH complaint. Jumaane v. City of Los Angeles (2015) 241 Cal. App. 4th 1390, 1400. Baker did 3 REPLY MPA IN SUPP, OF LSTC’S MOTION FOR SUMMARY JUDGMENT F O S T E R E m p l o y m e n t L a w 30 00 La ke sh or e Av en ue Oa kl an d, Ca li fo rn ia 94 61 0 No OO 0 9 O N wn Ah Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not file his DFEH complaint until August 8, 2016. Therefore, he cannot defeat summary judgment on his harassment claim by submitting evidence of alleged harassing conduct before August 8, 2015.3 2 Baker was not subjected to actionable harassment To defeat summary judgment on his harassment claim, Baker would have to show not only that he was subjected to harassing conduct because he is a member of a - group (e.g. because he has a disability), but also that the conduct was so severe or pervasive that it created a hostile work environment. As the California Supreme Court explained in Lyle, this high standard exists because FEHA is “not a civility code, and is not designed to rid the workplace of vulgarity” and “merely offensive comments in the workplace are not actionable.” 38 Cal.4th at 295, Moreover, Baker’s termination cannot be considered an act of harassment. Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65 (personnel management actions such as hiring and firing do not come within the meaning of harassment under FEHA). Baker - argues that his situation where for a few weeks co-workers “hazed” him; no manager ever said anything offensive to him; he never complained to anyone about the hazing; and, management stressed safety and avoiding workplace infmies is “similar to the facts” of Caldera v. Dep't of Corrections (2018) 25 Cal App 5"31. That assertion is absurd, as the plaintiff in Caldera was harassed by his direct supervisor for years, and the supervisor’s conduct was egregious, including broadcasting his offensive comments throughout the entire prison via the radio system, 3 Because Baker has not presented evidence of conduct within the applicable one-year period that was sufficiently severe or pervasive to constitute actionable harassment, LSTC is entitled to 3 California law is clear that plaintiff has the burden to establish the “continuing violation” exception. Jumaane, supra, at 1400, Plaintiffs reliance on Nazir to attempt to establish a “continuing violation” is misplaced, as the plaintiff in Nazir submitted “thorough” allegations that he was continuously subjected to 14 years of harassment and discrimination from his manager, and plaintiff’s formal complaints to his employer did not resolve the harassment. Baker, of course, has no specific allegations of a history of actionable conduct by Robettson, and he admitted he never complained about any alleged conduct until after he was terminated. Further, all of the conduct about which Baker complains occurred outside the limitations period - none of it continued into the limitations period. 4 See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608; Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 295; Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81. 3 Plaintiff’s sworn testimony further establishes that he shares no similarities to the plaintiffs in Nazir and Caldera, as Baker testified that Robertson was supportive of Baker while he was treated for depression in 2013; Robertson was very sensitive and supportive of Baker’s depression; and, Robertson never made any negative comments about Baker’s depression. (Depo of Plaintiff, Vol. 1 at 73:22-74:4, 75:7-77:4, 102:3-6, 197:18-21.) 6 REPLY MPA IN SUPP. OF LSTC’S MOTION FOR SUMMARY JUDGMENT F O S T E R E m p l o y m e n t L a w 30 00 La ke sh or e Av en ue O a k l a n d , Ca li fo rn ia 9 4 6 1 0 J d No No nN N o N o N o [\ ®] N o \ ] - - - - J - at - -_ - 0 ~~ AN Wn E N Ww [\ ®] - << \ O 0 ~ J ON W r +H Ww N o - O O © © N N wn BA W N judgment on his “harassment” claim. B. LSTC Is Entitled To Judgment On Baker’s Second, Third, Tenth, And Eleventh Causes Of Action. To defeat summary judgment, Baker would have to produce admissible evidence sufficient to show that there is a “triable issue” as to one or more of the material facts upon which the motion is based. C.C.P. § 437c(p)(2); See Uhrich v. State Farm Fire & Cas. Co., 109 Cal.App.4th 598, 616 (2003). When, as here, the employer has presented evidence of legitimate reasons for the decision at issue, the plaintiff must produce “substantial responsive evidence that the employer’s showing was untrue or pretextual.” Hersant, 57 Cal. App.4th at 1005, emphasis added. Mere “suspicions of improper motives ... primarily based on conjecture and speculation” are insufficient. Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1563-1564. The plaintiff must instead show “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions ih the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.” Hersant, 57 Cal.App.4th at 1005; McGrory v. Applied Signal Technology, Inc. 2013) 212 Cal. App.4th 1510, 1531-1532. Moreover, an employee may not defeat summary judgment by showing that the reasons for the challenged employment decision were not wise. “The employee cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” Hersant, 57 Cal. App. 4th at 1005. Here, LSTC supported its motion with evidence showing that Baker’s employment was terminated for legitimate reasons. Because Baker has not presented “substantial responsive evidence” of pretext (and indeed scant evidence of pretext), LSTC’s showing is sufficient to establish that it is entitled to judgment as a matter of law on all of the claims of harassment, discrimination, retaliation, IIED and “wrongful termination.” Baker fails to show the required “substantial responsive evidence that LSTC’s showing was untrue or pretextual”, as Baker’s opposition on “pretext” primarily cites conduct alleged against Merlo; conduct well outside the limitations period; and conduct that is not disability-related (LSTC Store 7 REPLY MPA IN SUPP. OF LSTC’S MOTION FOR SUMMARY JUDGMENT F O S T E R E m p l o y m e n t L a w 30 00 La ke sh or e Av en ue Qa ki an d, Ca li fo rn ia 94 61 0 No \ O o o ~~ AN wn - w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Managers regularly meet with store employees to remind them about the importance of employee safety, how to minimize losses, etc.) Baker’s opposition attempts to add an additional “fact” to support pretext: unauthenticated notes purporting to be from an LSTC investigator who interviewed Robertson after Baker’s termination. (Plaintiff’s Exh. 8) And, Baker grossly misstates those notes, as it is simply not possible to conclude from the notes that anyone said that Baker was not a leader because of his “mental issues.” Regardless, the undisputed facts of this case controvert anything that is in the notes, as it is undisputed that Baker’s only medical leave was not “recent”, it was in October 2013, more than two years before Baker’s unprofessional outburst and unwillingness to co-exist in the workplace resulted in his termination. Lastly, Baker attempts to support his disability discrimination case by asserting that he left work early on November 13, 2015 to seek treatment for the cut on his knee. Significantly, Baker testified that on November 17, 2015 (his next scheduled workshift), he was physically able to perform his job; he didn’t need (and didn’t request) an accommodation; and he worked without restrictions. (UMF 20). Accordingly, the cut on Baker’s knee was not a disability under the law and his alleged statement that he was seeking treatment for the cut did not put LSTC on notice that he was disabled. Cal. Code. Regs. Tit. 2 §11065(d)(9)(B) “... disability’ does not include :...minor cuts,...bruises, or abrasions.”; see also, Avila v. Continental Airlines (2008) 165 Cal. App. 4% 1237, 1248 (“vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA]”). Importantly, as shown above, Baker’s purported evidence of pretext is controverted by Baker’s own sworn testimony: he testified that Robertson was supportive of him while he was treated for depression in 2013; Robertson was very sensitive and supportive of Baker’s depression, and, Robertson never made any negative comments about Baker’s depression. Because no “reasonable jury” could find that Baker met his burden of presenting substantial responsive evidence that LSTC’s showing was untrue or pretextual, LSTC is entitled to judgment on Baker’s claims of discrimination and retaliation (FEHA and “whistleblower”) and his claim that the termination violated public policy. Thus, summary judgment is required on Issues Nos. 3-6 and 15-17. 8 REPLY MPA IN SUPP. OF LSTC’S MOTION FOR SUMMARY JUDGMENT F O S T E R E m p l o y m e n t La w 30 00 La ke sh or e Av en ue Q a k l a n d , Ca li fo rn ia 9 4 6 1 0 No \O 0 ~ 3 ON wn + w 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 C. LSTC Is Entitled To Judgment on Baker’s Fourth Cause of Action. “Failure To Prevent”, Absent A Showing That He Was Harassed, Retaliated Against, Or Discriminated Against. In the absence of evidence that Baker was harassed, retaliated against, or discriminated against, Baker’s “failure to prevent” claim fails as a matter of law. A failure to prevent harassment, discrimination and retaliation claim pursuant to the FEHA fails as a matter of law when a plaintiff cannot establish the existence of the underlying FEHA violation.® Therefore, LSTC is also entitled to judgment on Baker’s fourth cause of action. D. LSTC Is Entitled To Judgment On Baker’s Eighth Cause Of Action. The undisputed material facts establish that Baker cannot meet his burden of proving that L.STC failed to authorize and permit rest breaks. (See UMF 29 to 35.) Baker’s Opposition does not oppose LSTC’s showing that it provided unpaid meal periods (Issue 13). Instead, Baker only opposes LSTC’s motion on the issue of whether LSTC authorized and permitted paid rest breaks (Issue 12). But Baker’s Opposition confirms that UMF 30 and 32 are undisputed, thereby establishing that Baker received LSTC’s Work Practices Policy (which makes clear that rest breaks are authorized and permitted by LSTC) and that all employees, including Baker, signed individual payroll records twice per month signifying that they took breaks to which they were entitled. As to paid 10-minute rest breaks, California law is clear that employers need only "authorize and permit" employees to take such breaks; there is no legal requirement that employees must actually take breaks. Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 1031. Baker’s reference to a single instance where a supervisor was looking for him in the work area when Baker was using the employee restroom does not controvert the overwhelming undisputed evidence that LSTC not only authorized and permitted Baker to take paid breaks, but Baker actually took them. E. LSTC Is Entitled To Judgment On Baker’s Twelfth And Thirteenth Causes of Action, 1. Baker’s Twelfth (Battery) and Thirteenth (ITED) Causes of Action Against LSTC Are Barred By The Exclusive Remedy Provision Of The Workers’ Compensation Act. Baker’s opposition completely failed to address the detailed legal analysis in LSTC’s moving 6 Dickson v. Burke Williams, Inc. 234 Cal.App.4th 1307, 1312-1317 (2015) (employer cannot be liable for failure to prevent harassment where plaintiff does not prove the underlying harassment claim); Trujillo v. North County Transit District 63 Cal.App.4th 280, 288-289 (1998); Scotch v. Art Institute of California-Orange County, Inc. 173 Cal.App.4th 986, 1021 (2009). 9 REPLY MPA IN SUPP. OF LSTC’S MOTION FOR SUMMARY JUDGMENT F O S T E R E m p l o y m e n t L a w 30 00 La ke sh or e Av en ue Oa kl an d, Ca li fo rn ia 94 61 0 No \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 o o ~~ ON wn E N w papers that the “exclusive remedy” doctrine has been used by the California Supreme Court for decades to preclude civil lawsuits for battery and ITED that contain acts of physical aggression much worse than what Baker alleges happened to him.” As to LSTC, Baker’s twelfth and thirteenth causes of action are barred by the exclusive remedy of the Workers’ Compensation Act, and LSTC is entitled to judgment on those claims for that reason alone. 2. LSTC Is Also Entitled To Judgment On Baker’s Battery Claim Because The Undisputed Material Facts Establish That Baker Cannot Meet His Burden Of Proving That He Was Touched With The Intent To Harm Or Offend, Or That He Was Actually Harmed, The undisputed material facts establish that the extent of what Baker alleges is that Robertson grabbed Baker by his shirt collar and walked him up the stairs and out of the alignment pit, an act that did not physically harm Baker. (UMF 48 and 49). Baker has no evidence that the touching was done “with the intent to harm or offend”, as the undisputed evidence establishes that it served to get Baker out of the area of the workplace where his co-worker was, immediately after Baker referred to him in profane terms. Accordingly, LSTC is entitled to summary judgment on Issues 19 and 20. 3. LSTC Is Also Entitled To Judgment On Baker’s IIED Claim Because The Undisputed Material Facts Establish That Defendants” Conduct Was Outrageous. Baker completely fails to address the settled case law that a termination decision and related personnel management activity, even if improperly motivated, cannot provide the basis for an IIED claim. Janken v. GM Hughes Electronics (1996) 46 Cal. App.4th 55, 80; Light v. California Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 102. Further, as repeatedly described herein, no triable issue of material fact exists regarding whether Robertson’s response to 7 See, e.g., Jones v. Dept. of Corrections & Rehabilitation (2007) 152 Cal. App. 4" 1367, 1384 (assault and battery claims based on one worker grabbing another by the arm and “banging her around” due to a dispute over use of a wheelbarrow were preempted by workers’ compensation); Torres at 1000 (exclusivity rule applied to act of co-employee grabbing plaintiff from behind, lifting him off the ground and dropping him on his knees); Carr v. Wm. C. Crowell Co. (1946) 28 Cal. 2d 652, 654 (cited favorably in Torres) (throwing a hammer at a person is within scope of employment). See also, Robles v. Agreserves, Inc. (E.D. Cal. 2016) 158 F.Supp.3d 952, 974 (court applied California law and held that a battery cause of action was precluded by workers’ compensation exclusivity rule when manager pushed plaintiff during termination meeting). Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal. 3d 148, 160: “when the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as ... criticism of work practices ... an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer’s decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance... The basis of compensation and the exclusive remedy provisions is an injury sustained and arising out of the course of employment [citation] ..., the action is barred by the exclusiveness clause no matter what its name or technical form if the usual conditions of coverage are satisfied.” - 10 REPLY MPA IN SUPP. OF LSTC’S MOTION FOR SUMMARY JUDGMENT F O S T E R E m p l o y m e n t L a w 30 00 L a k e s h o r e Av en ue Q a k l a n d , Ca li fo rn ia 9 4 6 1 0 Ww Oo © NN O N Wn A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Baker’s profane statement by terminating Baker and grabbing his shirt was “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Accordingly, LSTC is also entitled to judgment on Baker’s claim for intentional infliction of emotional distress on Issue 22. F. LSTC Is Also Entitled To Judgment On Baker’s Claim For Recovery Of Punitive Damages. Civil Code Section 3294 sets a high bar for the recovery of punitive damages, which Merlo comes nowhere close to clearing. The involved individual - Rob Robertson - has ever been an officer, director, or “managing agent” of LSTC . (UMF 50) And Baker has no evidence, let alone the “clear and convincing evidence” the statute requires, that an officer, director, or managing agent of LSTC either authorized, ratified, or committed an act of fraud, oppression, or malice, or that an officer, director, or managing agent of LSTC had advance knowledge of the unfitness of an employee who committed such an act and employed him with a conscious disregard of the rights or safety of others. Therefore, LSTC is entitled to judgment on Baker’s claim for punitive damages, Issue 23. IV. CONCLUSION For all of the foregoing reasons, LSTC’s motion for summary judgment or, in the alternative, for summary adjudication of issues, should be granted. Dated: October 12, 2018 FOSTER EMPLOYMENT LAW By: JV i [ C MICHAEL E. WILBUR MARK J. ZEMBSCH, Attorneys for Defendant LES SCHWAB TIRE CENTERS OF CALIFORNIA, INC. 11 REPLY MPA IN SUPP. OF LSTC’S MOTION FOR SUMMARY JUDGMENT