Darrell Williams v. T-Mobile USA, Inc. et al

NOTICE OF MOTION AND MOTION for Summary Judgment as to All Claims

C.D. Cal.June 12, 2017

LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELIZABETH NGUYEN, Bar No. 238571 enguyen@littler.com DEBRA URTEAGA, Bar No. 278744 durteaga@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 Attorneys for Defendant T-MOBILE USA, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DARRELL WILLIAMS, Plaintiff, v. T-MOBILE USA, INC., and Art Heredia, as an individual and DOES 1 through 100, inclusive, Defendants. Case No. 2:16-cv-04972-SJO-JPR DEFENDANT T-MOBILE USA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT OF ISSUES Date: July 10, 2017 Time: 10:00 a.m. Courtroom: 10C Complaint Filed: May 20, 2016 (Los Angeles County Superior Court Case No. BC621103) Case 2:16-cv-04972-SJO-JPR Document 26 Filed 06/12/17 Page 1 of 5 Page ID #:218 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE HONORABLE COURT, PLAINTIFF DARRELL WILLLIAMS, AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 10, 2017 at 10:00 a.m., or as soon thereafter as counsel may be heard in Courtroom 10C of the above-entitled Court located at 255 East Temple Street, Los Angeles, California, 90012, the Honorable Judge S. James Otero presiding, Defendant T-Mobile USA, Inc. (“T-Mobile” or “Defendant”) will and hereby does move this Court pursuant to Federal Rule of Civil Procedure 56(b) and Local Rule 56 for summary judgment, or in the alternative, partial summary judgment, on the ground that there is no genuine issue of material fact as to Plaintiff Darrell Williams’s (“Plaintiff”) alleged claims against Defendant. Accordingly, Defendant is entitled to judgment as a matter of law for the reasons set forth below. Defendant will move, and hereby does move, for an order for judgment in its favor of the following claims and/or issues: A. Discrimination On The Basis Of Race In Violation Of The Fair Employment And Housing Act (“FEHA”): ISSUE NO. 1: Plaintiff’s claim for race discrimination fails because he cannot state a prima facie case of discrimination as he cannot show that he was subjected to an adverse employment action. ISSUE NO. 2: Plaintiff’s claim for race discrimination fails because he cannot state a prima facie case of discrimination as he cannot establish a causal connection between his race and any adverse employment action. ISSUE NO. 3: Plaintiff’s claim for race discrimination fails because, even assuming arguendo that Plaintiff can establish a prima facie case, the actions taken by T-Mobile were based on legitimate, nondiscriminatory business reasons. ISSUE NO. 4: Plaintiff’s claim for race discrimination fails because Plaintiff cannot show evidence of pretext. Case 2:16-cv-04972-SJO-JPR Document 26 Filed 06/12/17 Page 2 of 5 Page ID #:219 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. B. Harassment On The Basis Of Race In Violation Of FEHA: ISSUE NO. 5: Plaintiff’s claim for race harassment fails because he cannot state a prima facie case of harassment as the alleged conduct was not sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment. ISSUE NO. 6: Plaintiff’s claim for race harassment fails because he cannot state a prima facie case of harassment as he cannot establish a causal connection between his race and any alleged harassment. ISSUE NO. 7: Plaintiff’s claim for race harassment fails because personnel management decisions cannot be the basis for a harassment claim. C. Failure To Take Remedial Action In Violation Of FEHA: ISSUE NO. 8: Plaintiff’s claim for failure to take remedial action fails because no private right of action exists for such a claim. ISSUE NO. 9: Plaintiff’s claim for failure to take remedial action fails because he cannot establish his underlying claims for discrimination and/or harassment. ISSUE NO. 10: Plaintiff’s claim for failure to take remedial action fails because Defendant took appropriate and adequate steps to prevent discrimination and harassment. ISSUE NO. 11: Plaintiff’s claim for failure to take remedial action fails because Plaintiff never complained about alleged harassment/discrimination during his employment. D. Intentional Infliction Of Emotional Distress (“IIED”): ISSUE NO. 12: Plaintiff’s claim for IIED fails because he cannot state a prima facie case of IIED as the conduct Plaintiff complains of was not outrageous. ISSUE NO. 13: Plaintiff’s claim for IIED fails because he cannot state a prima facie case as he did not suffer severe emotional distress. Case 2:16-cv-04972-SJO-JPR Document 26 Filed 06/12/17 Page 3 of 5 Page ID #:220 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. ISSUE NO. 14: Plaintiff’s claim for IIED fails because he cannot state a prima facie case of IIED as Plaintiff cannot demonstrate that Defendant intended to inflict emotional distress or acted with reckless disregard of the probability that Plaintiff would suffer from emotional distress. ISSUE NO. 15: Plaintiff’s claim for IIED fails because he cannot state a prima facie case of IIED as he cannot establish that Defendant caused his emotional distress. E. Wrongful Termination In Violation Of Public Policy: ISSUE NO. 16: Plaintiff’s claim for wrongful termination fails because Defendant did not terminate his employment. ISSUE NO. 17: Plaintiff’s claim for wrongful termination fails because, even if Defendant terminated Plaintiff’s employment, Defendant had a legitimate, nondiscriminatory reason for such termination. ISSUE NO. 18: Plaintiff’s claim for wrongful termination fails because it is derivative of his claims for discrimination and harassment, which fail. F. Constructive Discharge In Violation Of Public Policy: ISSUE NO. 19: Plaintiff’s claim for constructive discharge fails because the working conditions at the time of his resignation were not so intolerable or aggravated that a reasonable person would be compelled to resign. ISSUE NO. 20: Plaintiff’s claim for constructive discharge fails because he resigned for personal reasons unrelated to his employment. G. Punitive Damages: ISSUE NO. 21: Plaintiff’s prayer for relief for punitive damages against Defendant fails because he cannot establish by clear and convincing evidence Defendant made any employment decisions as a result of malice, oppression or fraud. ISSUE NO. 22: Plaintiff’s prayer for relief for punitive damages against Defendant fails because he cannot establish by clear and convincing evidence that an Case 2:16-cv-04972-SJO-JPR Document 26 Filed 06/12/17 Page 4 of 5 Page ID #:221 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. officer, director, or managing agent of Defendant acted with malice, oppression or fraud. ISSUE NO. 23: Plaintiff’s prayer for relief for punitive damages against Defendant fails because he cannot establish by clear and convincing evidence that an officer, director, or managing agent of Defendant acted with malice, oppression or fraud. This Motion is based upon this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities filed in support of this Motion, the [Proposed] Statement of Uncontroverted Facts and Conclusions of Law, Declarations of Elizabeth Nguyen, Art Heredia, William Kontur, Lila Viveros, Angela Wren and all Exhibits attached thereto, as well as the pleadings, records and files in this case, and upon such other, further oral and documentary evidence that may be presented at or before hearing on this matter. This Motion is made following unsuccessful meet and confer efforts between counsel that occurred pursuant to L.R. 7-3. See Declaration of Elizabeth Nguyen, filed and served concurrently herewith. Dated: June 12, 2017 /s/Elizabeth Nguyen ELIZABETH NGUYEN DEBRA URTEAGA LITTLER MENDELSON, P.C. Attorneys for Defendant T-MOBILE USA, INC. Firmwide:147730668.1 066431.1010 Case 2:16-cv-04972-SJO-JPR Document 26 Filed 06/12/17 Page 5 of 5 Page ID #:222 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELIZABETH NGUYEN, Bar No. 238571 enguyen@littler.com DEBRA URTEAGA, Bar No. 278744 durteaga@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 Attorneys for Defendant T-MOBILE USA, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DARRELL WILLIAMS, Plaintiff, v. T-MOBILE USA, INC., and Art Heredia, as an individual and DOES 1 through 100, inclusive, Defendants. Case No. 2:16-cv-04972-SJO-JPR DEFENDANT T-MOBILE USA, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: July 10, 2017 Time: 10:00 a.m. Courtroom: 10C Complaint Filed: May 20, 2016 (Los Angeles County Superior Court Case No. BC621103) Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 1 of 31 Page ID #:223 LITTLER MENDELSON, P .C . 2 0 4 9 C E N T U R Y P A R K E A S T 5 T H F L O O R L O S A N G E L E S , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 TABLE OF CONTENTS PAGE i. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION ............................................................................................... 1 II. PROCEDURAL HISTORY ................................................................................ 2 III. STATEMENT OF FACTS .................................................................................. 3 A. T-Mobile USA, Inc. and The Relevant Policies ....................................... 3 1. Discrimination and Harassment-Free Environment Policy ............ 3 2. T-Mobile’s Code of Conduct .......................................................... 3 3. Safety, Security, & Return Policies ................................................ 4 B. Plaintiff’s Employment With T-Mobile .................................................... 4 1. Plaintiff Was Not Subjected To Discriminatory Or Harassing Conduct .......................................................................... 4 2. Plaintiff Violated T-Mobile’s Safety And Security Policy ............ 5 C. Plaintiff Violated T-Mobile’s Code Of Conduct And Return Policy ....... 5 1. I-Phone 6 Launch ............................................................................ 5 2. A Customer Complained About The Store Managed By Plaintiff ........................................................................................... 6 3. T-Mobile Investigated The Use Of The “Final Sale” Stamp ......... 6 D. While Plaintiff Was On Administrative Leave, He Raised Concerns With Human Resources ............................................................ 8 E. Conclusion of Investigation ...................................................................... 9 F. Plaintiff Voluntarily Resigned From T-Mobile ...................................... 10 G. Almost A Year Later, Plaintiff Began Suffering From Stress Resulting From His New Employment ................................................... 10 IV. LEGAL ARGUMENT ...................................................................................... 11 A. Standard For Summary Judgment ........................................................... 11 B. Plaintiff’s Race Discrimination Claim Fails As A Matter Of Law ........ 11 1. Plaintiff Cannot Show He Was Subjected To An Adverse Employment Action ...................................................................... 12 2. Plaintiff Cannot Establish A Causal Connection Between Any Alleged Adverse Employment Action And His Race .......... 14 Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 2 of 31 Page ID #:224 LITTLER MENDELSON, P .C . 2 0 4 9 C E N T U R Y P A R K E A S T 5 T H F L O O R L O S A N G E L E S , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 TABLE OF CONTENTS (CONTINUED) PAGE ii. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. T-Mobile’s Investigation and Related Actions Were Based On Legitimate, Nondiscriminatory Business Reasons ................. 15 4. Plaintiff Cannot Establish Pretext ................................................. 16 C. Plaintiff’s Harassment Claim Fails As A Matter Of Law ....................... 16 1. Plaintiff Was Not Subjected To A Pervasive Or Abusive Working Environment .................................................................. 17 2. Personnel Management Decisions Cannot Be The Basis For Harassment .................................................................................... 18 D. Plaintiff’s Failure to Take Remedial Action Claim Fails As A Matter Of Law ......................................................................................... 18 E. Plaintiff’s IIED Claim Fails As A Matter Of Law .................................. 20 1. The Complained of Conduct is Not Extreme or Outrageous ....... 20 2. Plaintiff Did Not Suffer Severe Emotional Distress And There is No Casual Connection .................................................... 21 F. Plaintiff’s Wrongful Termination Claim Fails As A Matter Of Law ..... 21 G. Plaintiff’s Constructive Discharge Claim Fails As A Matter Of Law .......................................................................................................... 22 H. Plaintiff Cannot State A Claim For Punitive Damages .......................... 23 V. CONCLUSION ................................................................................................. 24 Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 3 of 31 Page ID #:225 LITTLER MENDELSON, P .C . 2 0 4 9 C E N T U R Y P A R K E A S T 5 T H F L O O R L O S A N G E L E S , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 TABLE OF AUTHORITIES PAGE iii. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cases Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121 (1999) ............................................................................................. 17 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)................................................................................................. 11 Basich v. Allstate Ins., 87 Cal. App. 4th 1112 (2001) .................................................................................. 23 Breaux v. City of Garland, 205 F.3d 150 (5th Cir. 2000) ................................................................................... 14 Brown v. City of Syracuse, 673 F.3d 141 (2d Cir. 2012) .................................................................................... 13 Cal. Fair Emp’t and Hous. Comm’n v. Gemini Aluminum Corp., 122 Cal. App. 4th 1004 (2004) ................................................................................ 19 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)................................................................................................. 11 Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148 (1987) .............................................................................................. 20 Coverdell v. Dep’t of Soc. & Health Servs., 834 F.2d 658 (9th Cir. 1987) ................................................................................... 11 Davidson v. City of Westminster, 32 Cal. 3d 197 (1982) .............................................................................................. 20 EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991 (9th Cir. 2010) ................................................................................... 17 Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 864 (2007) .................................................................................. 12 Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590 (1989) ............................................................................. 17, 20 Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 4 of 31 Page ID #:226 LITTLER MENDELSON, P .C . 2 0 4 9 C E N T U R Y P A R K E A S T 5 T H F L O O R L O S A N G E L E S , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 TABLE OF AUTHORITIES (CONTINUED) PAGE iv. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fowler v. Varian Assn., Inc. 196 Cal. App. 3d 34 (1987) ..................................................................................... 20 Fuller v. City of Oakland, Cal., 47 F.3d 1522 (9th Cir. 1995) ................................................................................... 17 Gathenji v. Autozoners, LLC, 703 F. Supp. 2d 1017 (E.D. Cal. 2010) ................................................................... 18 Gibson v. Aro Corp., 32 Cal. App. 4th 1628 (1995) .................................................................................. 22 Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317 (2000) ............................................................................................. 15 Hersant v. Cal. Dep’t of Social Servs., 57 Cal. App. 4th 997 (1997) .................................................................................... 12 Holmes v. Gen. Dynamics Corp., 17 Cal. App. 4th 1418 (1993) .................................................................................. 21 Horn v. Cushman & Wakefield W., 72 Cal. App. 4th 798 (1999) .................................................................................... 16 Horsford v. Bd. of Trustees of Cal. State Univ., 132 Cal. App. 4th 359 (2005) ............................................................................ 12, 13 Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55 (1996) ...................................................................................... 20 Jennings v. Marralle, 8 Cal. 4th 121 (1984) ............................................................................................... 22 Joseph v. Leavitt, 465 F.3d 87 (2d Cir. 2006) ...................................................................................... 13 Kerr v. Rose, 216 Cal. App. 3d 1551 (1990) ................................................................................. 16 Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235 (9th Cir. Cal. 2013) ......................................................................... 21 Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 5 of 31 Page ID #:227 LITTLER MENDELSON, P .C . 2 0 4 9 C E N T U R Y P A R K E A S T 5 T H F L O O R L O S A N G E L E S , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 TABLE OF AUTHORITIES (CONTINUED) PAGE v. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mathieu v. Norrell Corp., 115 Cal. App. 4th 1174 (2004) ................................................................................ 23 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)................................................................................................. 11 McRae v. Dep’t of Corrs. & Rehab., 142 Cal. App. 4th 377 (2006) .................................................................................. 13 Mock v. Mich. Millers Mutual Ins. Co., 4 Cal. App. 4th 306 (1992) ...................................................................................... 23 Nolan v. Cleland, 686 F.2d 806 (9th Cir. 1982) ................................................................................... 15 Peltier v. United States, 388 F.3d 984 (6th Cir. 2004) ................................................................................... 14 Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965 (1993) ............................................................................................... 21 Singletary v. Mo. Dep’t of Corrs., 423 F.3d 886 (8th Cir. 2005) ................................................................................... 14 Tomaselli v. Transamerica Ins. Co., 25 Cal. App. 4th 1269 (1994) ............................................................................ 23, 24 Trujillo v. North County Transit Dist., 63 Cal. App. 4th 280 (1998) .............................................................................. 18, 19 TRW, Inc. v. Super. Ct., 25 Cal. App. 4th 834 (1994), cert. denied, 513 U.S. 1151 (1995) .......................... 22 United Steelworkers of Am. v. Phelps Dodge, 865 F.2d 1539 (9th Cir. 1989) ................................................................................. 11 Statutes Cal. Civ. Code § 3294(a) .............................................................................................. 23 Cal. Civ. Code § 3294(c)(1).......................................................................................... 23 Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 6 of 31 Page ID #:228 LITTLER MENDELSON, P .C . 2 0 4 9 C E N T U R Y P A R K E A S T 5 T H F L O O R L O S A N G E L E S , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 TABLE OF AUTHORITIES (CONTINUED) PAGE vi. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. Gov. Code § 12940(k) ........................................................................................... 18 Other Authorities FED. R. CIV. P. 56(c) ..................................................................................................... 11 Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 7 of 31 Page ID #:229 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION In this employment matter, Plaintiff Darrell Williams’s (“Plaintiff”) race-based claims fail as a matter of law because he voluntarily resigned from his position as a Retail Store Manager at T-Mobile USA, Inc. (“T-Mobile” or “Defendant”) on October 13, 2014. Plaintiff’s claims that he was discriminated against and wrongfully terminated based on his race fail as a matter of law because he is unable to state a prima facie case. His voluntary resignation is a death knell to his discrimination and wrongful termination claims because there is no adverse action, an essential element. Even if he could identify an adverse action, which he cannot, there is simply no evidence of any causal connection between his race and the alleged adverse action. Quite opposite, the uncontroverted evidence shows that the decision to terminate Mr. Williams was made following an investigation that was conducted in response to a customer complaint because Plaintiff implemented and knowingly allowed use of the “Final Sale” stamp in violation of T-Mobile’s return policy. But, Mr. Williams resigned before the decision was communicated to him. Specifically, T-Mobile’s Loss Prevention Manager, Art Heredia received documents reflecting a “Final Sale” stamp affixed to the receipt processed at Plaintiff’s store. The use of the “Final Sale” stamp is a direction violation of T- Mobile’s return policy, which allowed for returns within 14 days. Mr. Heredia partnered with Human Resources Business Partner William Kontur to investigate the complaint. During the investigation, one of the employees said Plaintiff directed the use of the “Final Sale” stamp. The use of the “Final Sale” stamp was an improper attempt to prevent customers from returning purchased items in order to increase sales commissions at Mr. Williams’ store. As a result, T-Mobile placed Plaintiff on paid administrative leave pending the investigation. Although it ultimately decided to separate Plaintiff for allowing violations of T-Mobile’s return policy to occur and because he had violated T-Mobile’s Cash Handling procedures earlier that year, it Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 8 of 31 Page ID #:230 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. never communicated the termination decision to him. In fact, T-Mobile was scheduled to meet with Plaintiff on October 10, 2014 to advise him of the decision to separate him, but he rescheduled the meeting to October 13, 2014. But, Plaintiff resigned effective October 13, 2014 by email before the meeting occurred, noting that he wanted to pursue “another career path.” Plaintiff admitted he had no indication of the ultimate findings of the investigation and understood the purpose of the meeting was to discuss the findings. Accordingly, there is no casual connection between any purported adverse action and his race. At the time Plaintiff resigned, he was on paid administrative leave pending an investigation of a customer complaint received regarding a sale that occurred at Plaintiff’s store. Plaintiff testified he voluntarily resigned to pursue a different career path and admitted he had no indication of the results or findings of the investigation when he decided to resign. Indeed, a few weeks after he resigned from T-Mobile, he started working at Target as an Executive Team Leader of Logistics. Moreover, Plaintiff’s constructive discharge claim also fails because these circumstances do not rise to the level of intolerable and discriminatory working conditions, an essential element, as a matter of law. Likewise, Plaintiff’s race harassment claim fails because the only comment Plaintiff complains of—“You’re a perfect fit for the boulevard”—was allegedly made by an unknown person, and Plaintiff admits it was made in a joking manner. One comment unrelated to race is insufficient to establish a harassment claim. Because Plaintiff’s underlying claims fail, his claims for failure to prevent and punitive damages also fail as a matter of law. For these reasons and the reasons discussed herein, T-Mobile respectfully requests the Court grant the instant Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (“Motion”). II. PROCEDURAL HISTORY On May 20, 2016, Plaintiff filed a Complaint in State Court entitled Darrell Williams v. T-Mobile USA, Inc., and Art Heredia, as an individual and Does 1 Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 9 of 31 Page ID #:231 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. through 100, inclusive, designated as Los Angeles County Superior Court Case No. BC621103 (“Complaint”) asserting the following claims for relief: (1) Discrimination Based on Race, (2) Harassment Based on Race, (3) Failure To Take Remedial Action, (4) Intentional Infliction Of Emotional Distress (“IIED”), (5) Wrongful Termination In Violation Of Public Policy, and (6) Constructive Discharge In Violation Of Public Policy. (Dkt. No. 1-1). On July 7, 2016, Defendant removed this action to Federal Court. (Dkt. No. 1).1 III. STATEMENT OF FACTS A. T-Mobile USA, Inc. and The Relevant Policies T-Mobile is a major wireless network provider in the United States. At its various locations throughout the nation, T-Mobile offers and sells mobile phones and related cellular plans. T-Mobile prides itself on its commitment to providing excellent customer service. T-Mobile implements a variety of policies, including anti- discrimination and anti-harassment policies, employee conduct policies, sales policies, and administrative policies. (Statement of Uncontroverted Material Facts [“SUF”] 62- 66). When employees are hired, they are provided access to T-Mobile’s policies. (SUF 61). Also, throughout their employment, employees are trained on T-Mobile’s policies. (SUF 67). 1. Discrimination and Harassment-Free Environment Policy. T-Mobile is an equal opportunity employer and has a Discrimination and Harassment-Free Environment policy in place, prohibiting unlawful discrimination and harassment. (SUF 52). Moreover, T-Mobile employees are urged to report any alleged discrimination or harassment via T-Mobile’s Open Door policy. (SUF 61-66). 2. T-Mobile’s Code of Conduct. In addition, T-Mobile employees are required and expected to follow T- 1 On August 10, 2016, this Court granted the parties’ request to dismiss individual Defendant Art Heredia with prejudice. (Dkt. No. 15). Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 10 of 31 Page ID #:232 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Mobile’s Code of Business Conduct for ethical behavior. (SUF 19). Specifically, T- Mobile’s Complying with Laws and Ethical Conduct policy, in pertinent part, prohibits misrepresentation of its policies and is committed to fair sales practices. (SUF 18). T-Mobile also requires all employees to immediately report any and all unethical behavior, and upon receipt of such a report, T-Mobile promptly conducts an investigation. (SUF 19-20, 24). 3. Safety, Security, & Return Policies. In order to protect its employees and its customers, T-Mobile also implements various safety and security policies. (SUF 7). For example, T-Mobile’s Cash Handling procedures establish that employees are required to count their money “at night after store closing” and are instructed to “NOT remove cash tills or count cash while customers are present and that all doors are locked.” (SUF 7). Finally, T- Mobile’s In-Store Refunds / Returns / Exchanges Overview policy states that it accepts returns within 14 days for all sales on accessories and devices. (SUF 13). B. Plaintiff’s Employment With T-Mobile. Plaintiff started working at T-Mobile on July 12, 2010 as a Retail Sales Leader. (Declaration of William Kontur (“Kontur Decl.”) ¶ 7). Within four months, on November 8, 2010, Plaintiff was promoted to Retail Associate Manager. (Kontur Decl. ¶ 7). On April 17, 2011, Plaintiff was promoted to Retail Store Manager. (SUF 2). On May 1, 2014, Plaintiff transferred to T-Mobile’s Imperial and Crenshaw location, Store No. 9652, a high volume store, as a Retail Store Manager. (Kontur Decl. ¶ 7). As a Retail Store Manager, Plaintiff had authority to, and did, discipline his employees and was also responsible for ensuring employee compliance with company policies. (SUF 3). At all times during his employment, Plaintiff was an at- will employee. (SUF 1). 1. Plaintiff Was Not Subjected To Discriminatory Or Harassing Conduct. Plaintiff understood and was aware that T-Mobile had a zero tolerance policy Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 11 of 31 Page ID #:233 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. prohibiting harassment and discrimination and an open-door policy where employees could contact human resources if they felt they were being discriminated against or harassed. (SUF 62). Prior to being placed on paid administrative leave (further discussed below), Plaintiff never made any complaints nor raised any concerns with human resources or his supervisors that he felt harassed or discriminated against. (SUF 68). Plaintiff further admits that he did not have any issues prior to the non- discriminatory investigation (discussed below), and the only comment Plaintiff complains of is the statement “You’re a perfect fit for the boulevard,” allegedly made by an unknown employee. (SUF 71). But, Plaintiff testified he is not certain the statement was a reference to his race and that it was said playfully. (SUF 71). 2. Plaintiff Violated T-Mobile’s Safety And Security Policy. In February 2014, Plaintiff was the Retail Store Manager of the Century and Crenshaw T-Mobile store, Store No. 7781, that had issues with theft, necessitating employing a security guard. (SUF 4). Despite posing a safety risk, Plaintiff directed his employees to open their tills and black boxes, which are the cash drawers from registers, and count their cash while the store was still open. (SUF 5). This directive violates T-Mobile’s Cash Handing procedures, which, as noted above, requires that all employees count their cash after “all doors are locked.” (SUF 7). Moreover, Plaintiff admitted that in the three and a half years at T-Mobile, employees had never counted their cash prior to the store closing or the doors being locked. (SUF 6). Accordingly, on February 19, 2014, Plaintiff received a Performance Improvement Memorandum and Final Warning for violating T-Mobile’s Cash Handling procedures. (SUF 8). C. Plaintiff Violated T-Mobile’s Code Of Conduct And Return Policy. 1. I-Phone 6 Launch. In September 2014, Plaintiff was managing T-Mobile’s Imperial and Crenshaw location where, as the Retail Store Manager, he was the highest level manager at the store. (SUF 10). On September 19, 2014, T-Mobile was set to launch the I-Phone 6 Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 12 of 31 Page ID #:234 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. at its various locations throughout Los Angeles, referred to as “I-Phone Launch Day.” (Declaration of Art Heredia [“Heredia Decl.”] ¶ 9). This meant that, for the first time, T-Mobile was going to offer its customers the ability to purchase the I-Phone 6 and related accessories under T-Mobile’s various cellular phone plans. (Heredia Decl. ¶ 9). 2. A Customer Complained About The Store Managed By Plaintiff. On or around September 30, 2014, about seven months after Plaintiff violated T-Mobile’s Cash Handling procedures, T-Mobile’s Loss Prevention Manager, Art Heredia, received an email from Paul Lee, a District Manager from another district. (SUF 23). In the email, Mr. Lee stated that one of his employees brought it to his attention that Plaintiff’s store was using a “Final Sale” stamp or “Final Sale” strip on T-Mobile’s tablets, a direct violation T-Mobile’s return policy. (SUF 23). Specifically, a Retail Sales Associate informed Mr. Lee that a customer came into his store and said an employee from the store where he purchased the I-Phone 6 told him he was required to purchase and activate an I-Pad in order to get the I-Phone 6. (SUF 23). The receipt, which was stamped with a “Final Sale” stamp, reflected the Imperial and Crenshaw store processed the transaction. (SUF 23). Accordingly, Mr. Heredia investigated the issue raised by Mr. Lee. (SUF 25). 3. T-Mobile Investigated The Use Of The “Final Sale” Stamp. On October 1, 2014, Mr. Heredia and Bill Kontur, the Human Resources Business Partner assigned to Plaintiff’s store, went to Plaintiff’s store to investigate the issues raised by Mr. Lee, including the use of the “Final Sale” stamp. (SUF 25- 26). Upon arriving at the store, 11 days after I-Phone Launch Day, Mr. Heredia opened a register drawer and found two “Final Sale” stamps therein. (SUF 27). a. Plaintiff’s Interview. On October 1, 2014, in connection with the investigation, Mr. Heredia and Mr. Kontur interviewed Plaintiff. (SUF 27). Mr. Heredia told Plaintiff that the purpose of Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 13 of 31 Page ID #:235 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. the investigation was in regards to the “Final Sale” stamp. (SUF 29). During Plaintiff’s interview, Plaintiff acknowledged that he was made aware of the use of the “Final Sale” stamp on I-Phone Launch Day. (SUF 30). Plaintiff further noted that, in preparation for I-Phone Launch Day, Plaintiff led a leadership call with his employees to discuss sale strategy. (SUF 41). In particular, Plaintiff discussed strategies for increasing sales on bundles (i.e. combined purchase of the I-Phone and accessories at a reduced cost) and for reducing the number of returns on purchased items. (SUF 11). During this call, he said Retail Sales Leader Gisselle Garcia brought up the use of the “Final Sale” stamp to deter returns, and Plaintiff admitted that he did not tell her it violated T-Mobile’s return policy. (SUF 22). Mr. Heredia then asked Plaintiff to write a statement summarizing what he said during his interview. (SUF 31). As Plaintiff initially did not include everything he said in the written statement, Mr. Heredia asked him to include the additional information Plaintiff told him. (SUF 32). At no time did Mr. Heredia instruct Plaintiff to include false information or inaccurate information. (SUF 33). b. The Other Witness Interviews. Mr. Heredia and Mr. Kontur then interviewed seven other employees, including Gisselle Garcia (Hispanic, Retail Sales Leader), Shawn Brown (African-American, Retail Sales Associate), Josie Osorio (Hispanic, Retail Sales Associate), Daniel Saucedo (Hispanic, Retail Associate Manager), Kaylan Hampton (African-American, Retail Sales Leader), Jordan Van Rjisbergen (Mixed-Race, Interim District Manager), and Lila Viveros (Hispanic, District Manager). (SUF 35). Ms. Garcia, Ms. Osorio, and Mr. Brown were interviewed on October 1, 2014, while Mr. Saucedo and Ms. Hampton were interviewed on October 6, 2014, and Ms. Viveros and Mr. Van Rjisbergen were interviewed on October 30, 2014. (SUF 43). When Ms. Garcia was interviewed, she told Mr. Heredia that the “Final Sale” stamp was raised during a management team call as a way to deter the products from being returned. (SUF 37). She said Plaintiff told her to purchase the stamps and that Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 14 of 31 Page ID #:236 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. he would later reimburse her. (SUF 37). Similarly, Ms. Osorio stated that Plaintiff told her to use the “Final Sale” stamp on all bundled sales (i.e. combined purchase of the I-Phone and accessories at a reduced cost). (SUF 38). Mr. Brown, who had a “Final Sale” strip on one of his sales, claimed he did not know anything about the use of the stamp. (SUF 39). Mr. Saucedo stated that he was not part of the leadership call held by Plaintiff but that he saw the “Final Sale” stamp on the I-Phone Launch Day. (SUF 41). Ms. Hampton stated Ms. Garcia mentioned the “Final Sale” stamp during the leadership call and that she saw the stamp when she got to work. (SUF 42). Mr. Van Rjisbergen and Ms. Viveros both stated that they did not direct Plaintiff to use the “Final Sale” stamp. (SUF 44). Mr. Van Rjisbergen further noted that the use of the stamp “is an unethical practice” and a violation of T- Mobile’s Code of Business Conduct. (SUF 44). All except Ms. Osorio provided written statements. (SUF 37-39, 41-42, 44). Ms. Osorio refused to provide a statement because she did not want to be involved. (SUF 39). Ultimately, after interviewing Ms. Garcia (who said Plaintiff directed and approved the use of the “Final Sale” stamp) and interviewing Plaintiff (who acknowledged he was aware of its use and only allegedly stopped it after a customer complained), Mr. Kontur concluded further investigation was necessary. (SUF 45). Thus, Plaintiff was placed on paid administrative leave pending the investigation. (SUF 46). D. While Plaintiff Was On Administrative Leave, He Raised Concerns With Human Resources. On October 6, 2014, while Plaintiff was still on paid administrative leave, Plaintiff sent an email to human resources regarding his concerns with the investigation and being placed on administrative leave. (SUF 48). This was the first time that Plaintiff ever raised a concern about his employment with human resources. (SUF 68). All of the issues raised by Plaintiff solely related to the investigation; he did not complain about any issues even remotely related to race. (SUF 48). Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 15 of 31 Page ID #:237 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. Specifically, Plaintiff stated that he felt coerced by Mr. Heredia in writing his statement simply because he felt his initial statement was sufficient and that Mr. Heredia’s request that he include additional information Plaintiff told Mr. Heredia was inappropriate. (SUF 48). In the email, Plaintiff further claimed Mr. Heredia only interviewed “the most seemingly vulnerable and easily manipulated members of management,” but in his deposition, Plaintiff explained this statement only referred to Ms. Garcia and no one else. (SUF 48). Plaintiff further stated he felt he was being “made to be an example because of all the controversy in Los Angeles surrounding Iphone launch,” but Plaintiff admits he is not aware of any other stores that have used the “Final Sale” stamp. (SUF 48). Indeed, no other T-Mobile stores have ever implemented the use of a “Final Sale” stamp. (SUF 51). In response to Plaintiff’s email, Angela Wren, Director of Human Resources, told Plaintiff that she and other members of human resources were looking into the matter. (SUF 49). Ms. Wren then investigated the issues raised in Plaintiff’s email and concluded that neither Mr. Heredia nor Mr. Kontur engaged in any wrongdoing. (SUF 50). E. Conclusion of Investigation. After the investigation was completed, T-Mobile decided to separate Plaintiff from employment. This decision was because Plaintiff implemented and knowingly allowed use of the “Final Sale” stamp in violation of T-Mobile’s return policy, which altered established T-Mobile policies and procedures without partnership with upper management, and because he had previously violated company policy when he instructed his direct reports to violate T-Mobile’s Cash Handling procedures. (SUF _). The other employees (who reported to Plaintiff) were not to be separated, as T- Mobile concluded that they “were only doing what management told them to do.” (SUF 55).2 Instead, Ms. Garcia, Ms. Hamilton, and Ms. Hampton each received a Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 16 of 31 Page ID #:238 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. Formal Reminder. (SUF 47). Notably, Shawn Brown (who is African-American) did not receive a Formal Reminder. (SUF 47). F. Plaintiff Voluntarily Resigned From T-Mobile. On October 13, 2014, Plaintiff sent a notice of his resignation to his supervisor, Lila Viveros, stating he wanted to pursue “another career path.” (SUF 58). No one at T-Mobile told Plaintiff to resign, and Plaintiff was unaware of T-Mobile’s ultimate decision to terminate Plaintiff’s employment. (SUF 60). Specifically, Plaintiff was scheduled to speak with Ms. Viveros or Mr. Kontur on October 10, 2014 at 10:00 a.m., but Plaintiff asked to reschedule the meeting to Monday October 13, 2014 because he had a family emergency. (SUF 57). But, Plaintiff resigned effective October 13, 2014 before the meeting occurred. (SUF 58). Plaintiff admitted he had no indication of the ultimate findings of the investigation and the purpose of the meeting. (SUF 57, 60). G. Almost A Year Later, Plaintiff Began Suffering From Stress Resulting From His New Employment. On or around November 2014, about one month after Plaintiff resigned, he began working for Target as an Executive Team Leader of Logistics, where he worked the night shift for the first time in his life. (SUF 72). During this time, Plaintiff’s fiancée was expecting a child, and Plaintiff was concerned that he was no longer making the same amount of money while at T-Mobile. (Declaration of Elizabeth Nguyen [“Nguyen Decl.”] ¶ 2, Ex. A [Deposition of Plaintiff (“Plaintiff’s Depo.”) 29:10-31:9; 49:15-50:10; 52:8-53:2; 58:8-59:6; 60:14-61:7; 61:20-62:11].) Plaintiff allegedly first began experiencing sleeplessness, headaches, upset stomach, and nausea and first sought medical attention for these symptoms in or around August 2015, almost a year after he resigned from T-Mobile, at which time he took a leave of absence from Target. (SUF 72-73). Plaintiff’s doctor did not refer Plaintiff to a psychiatrist nor prescribed him any medication. (SUF 74). Although Plaintiff was released to return to work in or about July 2016, he did not return to work at Target. Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 17 of 31 Page ID #:239 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. (Nguyen_ Decl. ¶ 2, Ex. A [Plaintiff’s Depo. 50:11-23_). Instead, in or around July 2016, Plaintiff began working at Sprint as a Multi-Unit Manager. (Nguyen Decl. ¶ 2, Ex. A [Plaintiff’s Depo. 99:23-24]). IV. LEGAL ARGUMENT A. Standard For Summary Judgment. Summary judgment is appropriate if the pleadings, discovery responses, and declarations, if any, show there is no genuine issue of material fact. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Coverdell v. Dep’t of Soc. & Health Servs., 834 F.2d 658, 768 (9th Cir. 1987). In a motion for summary judgment, the moving party is not required to produce evidence showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325. Rather, the moving party’s burden is satisfied by showing an absence of evidence to support the non- moving party’s case. Id. Once the moving party shows the absence of evidence, the burden shifts to the nonmoving party to establish a genuine issue of fact. Id. at 323. Summary judgment is appropriate where the non-moving party fails to make a showing sufficient to establish a genuine issue of fact. Id. “A ‘scintilla of evidence,’ or evidence that is ‘merely colorable’ or ‘not significantly probative,’ is not sufficient to present a genuine issue as to a material fact.” United Steelworkers of Am. v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir. 1989). To survive summary judgment, Plaintiff “must do more than simply show that there is some metaphysical doubt as to the material facts”; rather, he “must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Namely, Plaintiff must present specific “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). As a matter of law and uncontroverted material fact, each and every one of Plaintiff’s claims fail. B. Plaintiff’s Race Discrimination Claim Fails As A Matter Of Law. The uncontroverted evidence demonstrates that Plaintiff is unable to establish a Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 18 of 31 Page ID #:240 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. prima facie claim for race discrimination. To establish a prima facie discrimination case, a plaintiff must show that (1) he is a member of a protected class; (2) an adverse action occurred; (3) at the time of the adverse action, he was satisfactorily performing his job; and (4) a causal connection exists between the adverse action and the plaintiff’s membership in the protected class or classes. Hersant v. Cal. Dep’t of Social Servs., 57 Cal. App. 4th 997, 1002-03 (1997). “It is not enough for the employee simply to raise triable issues of fact concerning whether the employer’s reasons for taking the adverse action were sound.” Id. at 1005. The plaintiff bears the ultimate burden of establishing that the employer’s actions are unlawful discrimination. Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 864, 886 (2007). To meet this initial burden, the plaintiff must “produce evidence that, taken as a whole, permits a rational inference that intentional discrimination was a substantial motivating factor in the employer’s actions toward the plaintiff.” Horsford v. Bd. of Trustees of Cal. State Univ., 132 Cal. App. 4th 359, 377 (2005) (emphasis added). If a plaintiff establishes a prima facie case, the company must demonstrate a legitimate, non-discriminatory business reason for its actions. Id. Once the employer has done so, the burden shifts to the plaintiff to put forth specific facts to show that a triable issue exists that the reason given by the employer is actually a pretext for discrimination. 1. Plaintiff Cannot Show He Was Subjected To An Adverse Employment Action. The crux of Plaintiff’s race discrimination claim is based on his unfounded view that Mr. Heredia improperly conducted his investigation of the use of the “Final Sale” stamp at Plaintiff’s store and that he felt he was unjustly disciplined in comparison to other employees, forcing him to quit. (SUF 1-71). However, these allegations have no merit and cannot support a claim for discrimination. First, conducting an investigation is not an adverse employment action. An “adverse employment action” is a change in “terms, conditions, or privileges of Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 19 of 31 Page ID #:241 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13. employment.” Horsford, 132 Cal. App. 4th at 373. To be actionable, the adverse treatment must be “reasonably likely to impair a reasonable employee’s job performance or prospects for advancement” as distinguished from minor or relatively trivial actions that are likely to do no more than displease. Id. Here, consistent with T-Mobile’s Internal Investigations policy, Mr. Heredia conducted an investigation regarding a complaint he received regarding the improper use of a “Final Sale” stamp. (SUF 24). As part of the investigation, Mr. Heredia and Mr. Kontur interviewed Plaintiff and at least seven other employees and asked them to write statements summarizing the information they relayed. (SUF 28-34). Plaintiff’s contention that the investigation was improper because only Ms. Garcia, who he alleges is “vulnerable” and “easily manipulated,” was interviewed is meritless. To the contrary, Mr. Heredia and Mr. Kontur interviewed all management employees at the store during that time period. (SUF 48). Further, Mr. Heredia did not ask Plaintiff to include false information in his statement. Plaintiff’s only complaint was that he felt his initial statement was sufficient and that Mr. Heredia should not have asked him to include additional information. (SUF 48). There is nothing actionable or nefarious about conducting an investigation and Mr. Heredia’s actions do not suggest that Plaintiff was subjected to an adverse employment action, much less one related to his race. Second, being placed in paid administrative leave is not an adverse action as a matter of law. California courts and other federal courts have so held. See McRae v. Dep’t of Corrs. & Rehab., 142 Cal. App. 4th 377, 392 (2006) (rejecting the proposition that an investigation and a recommendation for discipline that was not implemented amounted to an adverse action); Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (paid administrative leave not adverse action unless the employer takes actions beyond an employee’s normal exposure to disciplinary policies); Joseph v. Leavitt, 465 F.3d 87, 91–92 (2d Cir. 2006) (paid leave during internal affairs investigation and continuation on paid leave after criminal charges Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 20 of 31 Page ID #:242 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14. were dismissed were not adverse actions); Singletary v. Mo. Dep’t of Corrs., 423 F.3d 886, 889, 891–92 (8th Cir. 2005) (three months’ paid leave pending internal affairs investigation and extension of employee’s probationary period after return to work were not adverse actions); Peltier v. United States, 388 F.3d 984, 988–89 (6th Cir. 2004) (paid leave during internal investigation were not adverse actions); Breaux v. City of Garland, 205 F.3d 150, 157–58 (5th Cir. 2000) (paid leave and investigation of police officer’s misconduct based on purportedly false accusations). Third, Plaintiff’s employment was not terminated. Plaintiff voluntarily resigned from his employment to pursue “another career path.” (SUF 58). Further, Plaintiff’s claim that he was alleged forced to quit equally falls flat. This is because at the time Plaintiff decided to resign, he admitted he had no indication of the ultimate findings of the investigation or whether a decision to terminate was made. (SUF 60). In fact, he testified that he understood the purpose of the meeting initially scheduled for October 10, 2014, which he rescheduled to October 13, 2014 due to a family emergency, was to discuss the findings of the investigation. (Nguyen Decl. ¶ 2, Ex. A [Plaintiff’s Depo. 204:23-205:6]). Before the meeting occurred, he emailed his direct supervisor Ms. Viveros advising her of his resignation effective immediately. (SUF 58). Therefore, Plaintiff was not terminated and was not forced to quit. Because Plaintiff did not suffer an adverse employment action, Plaintiff fails to establish a prima facie case of discrimination. 2. Plaintiff Cannot Establish A Causal Connection Between Any Alleged Adverse Employment Action And His Race. Even assuming, arguendo, that Plaintiff can establish that he was subjected to an adverse employment action, Plaintiff cannot show it was because of his race. Plaintiff claims that he felt he was targeted because he was one of two African- American managers around there area where he worked, but this is based on pure speculation. In actuality, T-Mobile employed at least 8 Retail Store Managers at the time. (SUF 54). Also, two other African-American employees, including Shawn Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 21 of 31 Page ID #:243 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. Brown and Kaylan Hampton were not placed on administrative leave. (SUF 46-47). Instead, Ms. Hampton received a Formal Reminder and Mr. Brown was not disciplined at all, necessarily defeating Plaintiff’s race discrimination claims. (SUF 47). As such, Plaintiff is unable to establish a causal connection between his race and the investigation or being placed on paid administrative leave. 3. T-Mobile’s Investigation and Related Actions Were Based On Legitimate, Nondiscriminatory Business Reasons. Furthermore, even if Plaintiff can meet his burden, which he cannot, Defendant had a legitimate, non-discriminatory reason for placing Plaintiff on paid administrative leave pending the investigation and for ultimately deciding to terminate his employment. In analyzing whether an employer has articulated a legitimate business reason for its conduct, the law affords substantial latitude to employers in running their business and making personnel decisions. See Nolan v. Cleland, 686 F.2d 806, 812 (9th Cir. 1982); Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 358 (2000) (employer’s business reasons need not have been wise or correct). As noted in Guz, “legitimate” reasons are those “that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” Id. (emphasis added). Here, the uncontroverted evidence shows that Plaintiff was the highest level manager at the store he managed, that his role was to ensure that employees complied with T-Mobile policies, and that his store was using the “Final Sale” stamp in violation of T-Mobile’s return policy, which Plaintiff was aware of but neither reported the incident nor disciplined Ms. Garcia. (SUF 17, 22_). The thorough investigation revealed that Ms. Garcia corroborated the fact that Plaintiff directed the use the “Final Sale” stamp to prevent returns. (SUF 22). So, Plaintiff was placed on paid administrative leave because T-Mobile reasonably believed he directed or approved his direct reports to use a “Final Sale” stamp, a legitimate non- discriminatory reason. Thus, T-Mobile had a legitimate, nondiscriminatory basis for Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 22 of 31 Page ID #:244 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16. placing Plaintiff on paid administrative leave. Further, T-Mobile ultimately decided to terminate Plaintiff (although Plaintiff did not know about it when he resigned) was justified. T-Mobile’s decision was because Plaintiff implemented and knowingly allowed use of the “Final Sale” stamp in violation of T-Mobile’s return policy, which altered established T-Mobile policies and procedures without partnership with upper management, and because he had previously exhibited this behavior before when he instructed his direct reports to violate T-Mobile’s Cash Handling procedures. (SUF 55). Accordingly, the decision to terminate his employment was based on legitimate, non-discriminatory reasons. But, as discussed above, the decision to terminate cannot serve as an adverse action here where Plaintiff voluntary resigned. 4. Plaintiff Cannot Establish Pretext. To establish pretext, Plaintiff must demonstrate, with specific and substantial evidence, that T-Mobile’s proffered reasons were not the true reasons for the employment decision, but that a discriminatory reason motivated its actions. See Horn v. Cushman & Wakefield W., 72 Cal. App. 4th 798, 807 (1999); Kerr v. Rose, 216 Cal. App. 3d 1551, 1564 (1990) (“[S]uspicions of improper motives . . . based primarily on conjecture and speculation” are not sufficient to meet this burden.). As noted above, Plaintiff is unable to do so. Plaintiff’s proffered discriminatory motives are based on pure speculation and there is no specific or substantial evidence to suggest T-Mobile’s reasons for conducting the investigation and placing him on paid administrative leave were not true. Accordingly, this claim cannot survive summary judgment. C. Plaintiff’s Harassment Claim Fails As A Matter Of Law. To state a claim for harassment under the FEHA, Plaintiff must establish: (1) that he was subjected to unwanted harassing conduct; (2) that the harassment was based on his race; and (3) that the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 23 of 31 Page ID #:245 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. environment. Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 608 (1989). In determining whether conduct is severe and pervasive, courts have held that harassing conduct “cannot be occasional, isolated, sporadic or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated routine or generalized nature.” Id. at 610. In addition, Plaintiff must establish that he perceived his work environment to be hostile and that a reasonable person in his position would perceive it to be so. Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1527 (9th Cir. 1995). The allegedly hostile conduct must go beyond “merely offensive” so that it changes the terms and conditions of the victim’s job. EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 999 (9th Cir. 2010). 1. Plaintiff Was Not Subjected To A Pervasive Or Abusive Working Environment. Plaintiff’s claim of harassment on the basis of race and national origin are meritless because he was not subjected to any harassing conduct, much less conduct that is severe or pervasive, as a matter of law. Plaintiff refers to a single comment (“You’re a perfect fit for the boulevard”), which was purportedly said to him by an unknown employee in or around June 2013, over a year before the investigation occurred. (SUF 71). Further, Plaintiff admits it is unclear as to whether the comment even referred to his race. (SUF 71). Nevertheless, one isolated comment that is unrelated to race is not sufficient to state a claim for harassment as a matter of law. See Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121, 130-31 (1999) (holding that “occasional, isolated, sporadic, or trivial” acts are generally not enough to alter the conditions of employment and create a hostile environment). Indeed, throughout his employment, Plaintiff never raised any concerns or issued any complaints regarding his belief that he was being harassed. (SUF 68). Moreover, Plaintiff admits that no one ever treated him inappropriately or made any comments to him about his race. (SUF 70). Overall, Plaintiff has not provided a scintilla of evidence supporting his claim, much less one based on race. Accordingly, Plaintiff’s harassment claim fails as Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 24 of 31 Page ID #:246 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18. a matter of law. 2. Personnel Management Decisions Cannot Be The Basis For Harassment. To the extent Plaintiff contends that he was harassed due to Mr. Heredia’s conduct of asking Plaintiff to provide a complete statement during his investigation, such conduct cannot be the basis for a harassment claim because it is a personnel management decision. As a matter of law, personnel management decisions do not come within the meaning of harassment. See Gathenji v. Autozoners, LLC, 703 F. Supp. 2d 1017, 1033 (E.D. Cal. 2010) (“[C]ommonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations…deciding who will or who will not attend meetings, deciding who will be laid off, and the like do not come within the meaning of harassment.”). Thus, Mr. Heredia’s investigation is not, by its very nature, the type of employment action that can be “harassing.” Accordingly, Plaintiff’s harassment claim fails. D. Plaintiff’s Failure to Take Remedial Action Claim Fails As A Matter Of Law. First, the FEHA does not provide a private right of action for failure to prevent harassment or discrimination. Dep’t of Fair Emp’t & Hous. v. Lyddan Law Grp., No. 10-04-P, FEHC Precedential Decs. 2010, 2010 WL 4901732, at *12 (Cal. F.E.H.C. Oct. 19, 2010).3 Under Lyddan, an employee who is the victim of discrimination may bring a claim for the discrimination or harassment, but the power to prosecute violations of California Government Code Section 12940(k) lies solely with the Department of Fair Employment and Housing (“DFEH”). Id. at *16 (“[W]e expressly 3 Though precedential decisions of the FEHC are not binding on California courts, courts ordinarily give “substantial weight” to the FEHC's interpretations of the FEHA and DFEH regulations. Trujillo v. North County Transit Dist., 63 Cal. App. 4th 280, 288 n.4 (1998). Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 25 of 31 Page ID #:247 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19. do not find that such a claim gives rise to an actionable tort or private cause of action in civil proceedings between private litigants.”). Thus, Plaintiff cannot bring a claim for failure to take remedial action. Second, even if a private right of action existed for such a claim, there can be no failure to prevent discrimination or harassment unless there is an underlying finding that harassment/discrimination occurred. Trujillo v. N. Co. Transit Dist., 63 Cal. App. 4th 280, 286 (1998). Thus, because Plaintiff cannot succeed on his underlying discrimination and harassment claims for the reasons discussed above, his failure to prevent claim also fails. Third, T-Mobile’s policies expressly prohibit discrimination or harassment and employees are urged to report any discrimination or harassment via T-Mobile’s open- door policy and to submit any complaints via its complaint procedure, which employees can easily access via T-Mobile’s internal employee database, OneVoice. (SUF 61-67). Under the FEHA, an employer takes all reasonable steps necessary to prevent harassment and discrimination if it provides information to its employees advising them of policies, internal complaint procedures, and legal protection against harassment and discrimination. See, e.g., Cal. Fair Emp’t and Hous. Comm’n v. Gemini Aluminum Corp., 122 Cal. App. 4th 1004, 1025 (2004). As T-Mobile has policies in place to prevent harassment and discrimination, this claim fails. Fourth, to the extent Plaintiff refers to his October 6, 2014 email to Human Resources in support of this claim, it still falls flat. This is because the October 6, 2014 email did not identify any complaints related to race harassment or discrimination. (SUF 48). It only identified issues related to how the investigation was handled. (SUF 48). But, as discussed above, there was nothing nefarious or unlawful about the investigation. That aside, T-Mobile took reasonable steps to investigate the issues raised in the October 6, 2014 email and reasonably concluded that the investigation was properly conducted. (SUF 49-50). Therefore, even if Plaintiff could establish his underlying harassment or discrimination claims, which he Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 26 of 31 Page ID #:248 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20. cannot, the failure to prevent claim still fails as a matter of law. E. Plaintiff’s IIED Claim Fails As A Matter Of Law. Plaintiff cannot state a claim for IIED because he is unable to show: (1) outrageous conduct, (2) that was intentionally caused or recklessly disregarded the probability of causing emotional distress, (3) that Plaintiff suffered severe emotional distress; and (4) that the outrageous conduct was the actual and proximate cause of his emotional distress. See Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148, 155 n.7 (1987). It is an issue of law whether a defendant’s conduct can be deemed to be so extreme and outrageous so as to allow for recovery. Fowler v. Varian Assn., Inc. 196 Cal. App. 3d 34, 44 (1987). 1. The Complained of Conduct is Not Extreme or Outrageous. To be “outrageous,” the conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Davidson v. City of Westminster, 32 Cal. 3d 197, 209 (1982) (quoting Cervantez v. J.C. Penney Co., 24 Cal. 3d 579, 593 (1979)). Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 617, (1989). Here, being interviewed during an investigation and being placed on administrative leave pending the investigation of a complaint is not extreme or outrageous. It is well-settled that personnel actions, such as the investigation Plaintiff complains about, are not so extreme and outrageous as to go “beyond all possible bounds of decency.” Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 80 (1996). In fact, Plaintiff was simply not satisfied with how the investigation was conducted, including that Mr. Heredia asked him to include additional facts in his written statement, but that does not equate to extreme or outrageous conduct. This allegation is related exclusively to personnel management activity and cannot serve as a basis for IIED. Thus, this claim fails. Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 27 of 31 Page ID #:249 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21. 2. Plaintiff Did Not Suffer Severe Emotional Distress And There is No Casual Connection. Plaintiff’s allegations of emotional distress (sleeplessness, headaches, nausea, and upset stomach) do not rise to the level of being “severe” under the law. Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1246 (9th Cir. Cal. 2013) (finding that employee’s emotional injuries that manifested as “[a]nxiety, sleeplessness, upset stomach, [and] sometimes muscle twitches” did not rise to the level of “severe” for purposes of intentional infliction of emotional distress claim). “Severe emotional distress” means “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1004 (1993). In fact, Plaintiff’s doctor did not even refer Plaintiff to a psychiatrist nor prescribed him any medication, negating his claim that he suffered from severe emotional distress. (SUF 74). Moreover, Plaintiff cannot show that T-Mobile caused any of Plaintiff’s alleged emotional distress because Plaintiff first began experiencing symptoms almost a year after he resigned from T-Mobile. Therefore, this claim fails. F. Plaintiff’s Wrongful Termination Claim Fails As A Matter Of Law. To establish a prima facie claim for wrongful discharge in violation of public policy, Plaintiff must demonstrate (1) an employer-employee relationship; (2) termination or other adverse employment action; (3) a nexus between the adverse action and the employee’s protected activity; (4) the adverse action was a legal cause of their damage; and (5) the nature and extent of their damage. See Holmes v. Gen. Dynamics Corp., 17 Cal. App. 4th 1418, 1426 (1993). First, as discussed above, Plaintiff voluntarily resigned from his employment, so he cannot claim that he was “terminated” on this basis alone. Thus, this claim fails. Second, Plaintiff’s claim fails for the same reasons his FEHA claims fail because it is the only underlying statute he identifies underlying his wrongful termination claim. Thus, as T-Mobile cannot be held liable under the FEHA (as Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 28 of 31 Page ID #:250 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22. discussed above), it also cannot be held liable for a wrongful termination claim based on the FEHA. TRW, Inc. v. Super. Ct., 25 Cal. App. 4th 834, 1844-49 (1994), cert. denied, 513 U.S. 1151 (1995) (no cause of action for wrongful termination in violation of public policy where the employer did not violate the constitutional or statutory provision asserted as the basis for the claim); Jennings v. Marralle, 8 Cal. 4th 121, 135 (1984) (noting that no claim for violation of public policy exists against employers who have not violated the law). Thus, this claim fails as a matter of law. G. Plaintiff’s Constructive Discharge Claim Fails As A Matter Of Law. To establish a claim for constructive discharge, an employee must prove by a preponderance of the evidence “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.” Turner, 7 Cal. 4th at 1251. Here, as discussed above in Sections IV.B. (Discrimination) and IV.C. (Harassment), Plaintiff cannot offer any evidence to show that his employment was intolerable and discriminatory or that he was somehow forced to quit. First, Plaintiff voluntarily resigned from his employment to pursue “another career path.” (SUF 58). Second, Plaintiff’s circumstances (related to being investigated and placed on paid administrative leave pending the investigation) fail to remotely rise to the level of intolerable or discriminatory working conditions, such that a reasonable person would be compelled to quit. Turner, 7 Cal. 4th at 1246-47 (to be “intolerable,” circumstances must be unusually aggravated or amount to a continuous pattern of objectionable conduct); Gibson v. Aro Corp., 32 Cal. App. 4th 1628, 1636-37 (1995) (employee’s embarrassment and hurt feelings resulting from demotion does not transform his resignation into a constructive discharge). Further, Plaintiff is unable to rely on the decision to terminate to state his constructive discharge claim because he admits he had zero indication of the ultimate findings of the investigation and he Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 29 of 31 Page ID #:251 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23. resigned before being informed of them. (SUF 60). Thus, as there is no basis for Plaintiff to claim he was subjected to “intolerable” or “discriminatory” working conditions, this claim fails. H. Plaintiff Cannot State A Claim For Punitive Damages. Under California law, to maintain a claim for punitive damages, a plaintiff must proffer clear and convincing evidence of malice, oppression or fraud. Cal. Civ. Code § 3294(a); Basich v. Allstate Ins., 87 Cal. App. 4th 1112, 1118-21 (2001). The “clear and convincing” standard requires a finding that the evidence “must be so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.” Mock v. Mich. Millers Mutual Ins. Co., 4 Cal. App. 4th 306, 332 (1992) (internal citation omitted).4 Even if a plaintiff is able to establish his underlying claims, that alone does not entitle him to punitive damages. See Mathieu v. Norrell Corp., 115 Cal. App. 4th 1174 (2004) (finding summary judgment proper on punitive damages claim despite potentially valid FEHA retaliation claim, based on plaintiff’s failure to satisfy requirements of Civil Code §3294). First, as shown above, Plaintiff’s underlying claims fail as a matter of law. Thus, his punitive damages claim also fails. Plaintiff cannot proffer any evidence, much less clear and convincing evidence, that he was subjected to malicious, oppressive or fraudulent behavior. Placing the alleged conduct in the worst possible light simply does not add up to conduct that is so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary 4 “Malice” for the purposes of punitive damages, means conduct which is intended to cause injury to the plaintiff or “despicable conduct” which is carried on with willful and conscious disregard of the rights and safety of others. Cal. Civ. Code § 3294(c)(1). “Oppression” requires “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Id. at section 3294(c)(2). Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” Tomaselli v. Transamerica Ins. Co., 25 Cal. App. 4th 1269, 1286-87 (1994). Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 30 of 31 Page ID #:252 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24. decent people.” Tomaselli, 25 Cal. App. 4th at 1286-87. Second, even if the underlying claim(s) survive summary judgment, the uncontroverted evidence nevertheless demonstrates that T-Mobile’s employment decisions do not rise to the level of malice, oppression or fraud as a matter of law. (SUF 1-71.) Moreover, Plaintiff himself testified that he never felt his supervisors treated him inappropriately, rendering his request for punitive damages futile. Therefore, Plaintiff cannot recover punitive damages on any of his claims, as a matter of law. V. CONCLUSION For the foregoing reasons, Defendant respectfully submits that there are no genuine issues as to any material facts in this matter and therefore, request that this Court grant their motion for summary judgment in its entirety, or, in the alternative, partial summary judgment. Dated: June 12, 2017 /s/Elizabeth Nguyen ELIZABETH NGUYEN DEBRA URTEAGA LITTLER MENDELSON, P.C. Attorneys for Defendant T-MOBILE USA, INC. Firmwide:147917041.10 066431.1010 Case 2:16-cv-04972-SJO-JPR Document 26-1 Filed 06/12/17 Page 31 of 31 Page ID #:253 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELIZABETH NGUYEN, Bar No. 238571 enguyen@littler.com DEBRA URTEAGA, Bar No. 278744 durteaga@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 Attorneys for Defendant T-MOBILE USA, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DARRELL WILLIAMS, Plaintiff, v. T-MOBILE USA, INC., and Art Heredia, as an individual and DOES 1 through 100, inclusive, Defendants. Case No. 2:16-cv-04972-SJO-JPR DEFENDANT’S STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT OF ISSUES Date: July 10, 2017 Time: 10:00 a.m. Courtroom: 10C Complaint Filed: May 20, 2016 (Los Angeles County Superior Court Case No. BC621103) Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 1 of 37 Page ID #:254 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant T-Mobile USA, Inc. (“T-Mobile” or “Defendant”) hereby submits pursuant to Local Rule 56-1, its [Proposed] Statement of Uncontroverted Facts and Conclusions of Law in support of its Motion For Summary Judgment, Or, In The Alternative, Partial Summary Judgment Of Issues (“SUF”). STATEMENT OF UNCONTROVERTED FACTS A. Discrimination On The Basis Of Race In Violation Of The Fair Employment And Housing Act (“FEHA”): ISSUE NO. 1: Plaintiff’s claim for race discrimination fails because he cannot state a prima facie case of discrimination as he cannot show that he was subjected to an adverse employment action. UNCONTROVERTED FACTS SUPPORTING EVIDENCE 1. At all times throughout his employment, Plaintiff remained an at-will employee. Declaration of Lila Viveros (“Viveros Decl.”) ¶ 4, Ex. B. 2. On April 17, 2011, Plaintiff was promoted to Retail Store Manager. Deposition of Darrell Williams (“Williams Depo.”) 81:16-82:25. Declaration of William Kontur (“Kontur Decl.”) ¶ 7. 3. As a Retail Store Manager, Plaintiff had authority to, and did, discipline his employees and was also responsible for ensuring employee compliance with company policies. Williams Depo. 38:11-15; 80:8-10; 146:19-25. Kontur Decl. ¶ 8. 4. In February 2014, Plaintiff was the Retail Store Manager of the Century and Crenshaw T-Mobile store, Store No. 7781, that had issues with theft, necessitating Viveros Decl. ¶ 4. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 2 of 37 Page ID #:255 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. UNCONTROVERTED FACTS SUPPORTING EVIDENCE employing a private security guard. 5. While Plaintiff was the Retail Store Manager of Store No. 7781, Plaintiff directed his direct reports to open their tills and black boxes, which are cash drawers from the registers, and count their cash while the store was still open to the public. Viveros Decl. ¶ 4. 6. In the three and a half years that Plaintiff worked at T-Mobile, Plaintiff was not aware of any instance where T-Mobile employees had counted their cash prior to the store closing or the doors being locked. Williams Depo. 83:11-88-7; 85:22-86:3; 89:1-25; 93:21-98:13. 7. T-Mobile implements Cash Handling procedures, which T-Mobile retail employees are required to follow when counting their money for the day. Employees are required to count their money “at night after store closing” and are instructed to “NOT remove cash tills or count cash while customers are present and that all doors are locked.” Declaration of Art Heredia (“Heredia Decl.”) ¶ 5, Ex. A. 8. On February 19, 2014, Plaintiff received a Performance Improvement Memorandum and Final Warning for violating T-Mobile’s Cash Handling procedures. Williams Depo. 83:11-88-7; 85:22-86:3; 89:1-25; 93:21-98:13. Viveros Decl. ¶ 4, Ex. B. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 3 of 37 Page ID #:256 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. UNCONTROVERTED FACTS SUPPORTING EVIDENCE 9. In connection with his Performance Improvement Plan, Plaintiff was given the option to either 1) commit to immediate improvement in job performance or 2) leave the company. Plaintiff chose the former. Viveros Decl. ¶ 4, Ex. B. 10. On May 1, 2014, Plaintiff was transferred to T-Mobile’s Imperial and Crenshaw location, Store No. 9562, as its Retail Store Manager, the highest level manager at the store. Williams Depo. 146:19-21. Kontur Decl. ¶ 7. 11. In preparation for the I-Phone Launch Day on September 19, 2014, Plaintiff led a leadership call with his employees to discuss sale strategy and overall logistics. In particular, Plaintiff discussed strategies for increasing sales on bundles (i.e. combined purchase of the I- Phone and accessories at a reduced cost) and for reducing the number of returns on purchased items. Williams Depo. 109:17-113:4; 121:124:2; 157:7-159:5. Heredia Decl. ¶ 10. 12. During the leadership call held by Plaintiff in preparation for I-Phone Launch day on September 19, 2014, Retail Sales Leader Gisselle Garcia brought up the use of a “Final Sale” stamp as a means of Williams Depo. 109:17-113:4; 121:124:2; 157:7-159:5. Heredia Decl. ¶ 10. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 4 of 37 Page ID #:257 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. UNCONTROVERTED FACTS SUPPORTING EVIDENCE minimizing returns of the I-Phone, thereby increasing overall sales of the to deter returns. 13. T-Mobile’s In-Store Refunds / Returns / Exchanges Overview policy states that each T-Mobile store accepts returns within 14 days for all sales on accessories and devices. Heredia Decl. ¶ 6, Ex. B. 14. Plaintiff understood that the use of a “Final Sale” stamp would violate T- Mobile’s return policy. Williams Depo. 80:11-14; 132:10-14. 15. During the leadership call held by Plaintiff in preparation for I-Phone Launch day on September 19, 2014, Plaintiff neither informed Ms. Garcia that using the “Final Sale” stamp would violate T- Mobile’s return policy nor that Plaintiff was not in agreement with Ms. Garcia’s suggestion. Williams Depo. 109:17-113:4; 121:124:2; 157:7-159:5. Heredia Decl. ¶ 10. 16. On September 19, 2014, the day of the I-Phone launch, at least one T-Mobile employee at Plaintiff’s store used the “Final Sale” stamp on a customer receipt. Kontur Decl. ¶ 23, Ex. C. Heredia Decl. ¶ 7. 17. Plaintiff was made aware that at least one of his direct reports was improperly using the “Final Sale” stamp Williams Depo. 124:6-125:25; 128:13- 129:8. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 5 of 37 Page ID #:258 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. UNCONTROVERTED FACTS SUPPORTING EVIDENCE on customer receipts after a customer complained, whereby Plaintiff saw the “Final Sale” stamp on the customer’s receipt. 18. T-Mobile’s Complying with Laws and Ethical Conduct policy prohibits misrepresentation of its policies and is committed to fair sales practices. The policy expressly states: “We do not misrepresent any Company policies, prices, or procedures, or offer unauthorized deals or discounts to customers, or misrepresent our role or authority to enter into an agreement on behalf of the Company. Above all, we are committed to dealing fairly with our customers, suppliers, competitors, and employees alike. We will not take unfair advantage of anyone through manipulation, concealment, abuse of confidential information, misrepresentation of material facts, or any other unfair-dealing practice.” Kontur Decl. ¶ 4, Ex. B. 19. While all T-Mobile employees are expected to follow T-Mobile’s Code of Business Conduct, supervisors have an Kontur Decl. ¶ 4, Ex. B. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 6 of 37 Page ID #:259 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. UNCONTROVERTED FACTS SUPPORTING EVIDENCE “obligation both to make sure their teams understand the Code and to create an environment in which issues can be raised without fear of retaliation.” 20. T-Mobile requires all employees to immediately report any and all unethical behavior. T-Mobile’s Code of Business Conduct states: “Each of us has a duty to speak up and raise concerns if we become aware of unethical, illegal or questionable activities or actions which may violate the Code or any other policy.” Kontur Decl. ¶ 4, Ex. B. 21. Pursuant to T-Mobile’s Fraud and Theft policy, employees have a “duty to report incidents of fraud promptly.” Kontur Decl. ¶ 4, Ex. B. 22. Although Plaintiff was aware that Ms. Garcia likely brought the “Final Sale” stamp to the store, Plaintiff did not discipline Ms. Garcia, as he took ownership for its use. Williams Depo. 126:12-127:13; 153:15- 24; 155:14-22; 156:13-157:6. Heredia Decl. ¶ 10. 23. On or around September 24, 2014, Mr. Heredia received an email from Paul Lee, a District Manager, wherein Mr. Lee stated he received two customer escalations relayed to him by one of Mr. Lee’s employees, who brought it to his Heredia Decl. ¶ 7. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 7 of 37 Page ID #:260 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. UNCONTROVERTED FACTS SUPPORTING EVIDENCE attention that Store Number 9562 was using a “Final Sale” stamp or strip on T- Mobile’s tablets. Specifically, a Retail Store Associate informed Mr. Lee that a customer came into his store and said the store from where he purchased the I-Phone 6 told him he was required to purchase and activate an I-Pad to get the I-Phone 6. The receipt, which had a “Final Sale” stamp on it, reflected Plaintiff’s store processed the transaction. 24. Upon receipt of a report, T-Mobile promptly conducts an investigation. T- Mobile’s Internal Investigations policy states: “TMUS will investigate suspected employee misconduct, threats of violence or unsafe conduct and allegations of other improper activity. Investigations may be conducted by Human Resources, Corporate Investigations, or Loss Prevention as appropriate. Employees must fully cooperate in internal investigations, including providing complete, truthful and accurate information and written statements upon request.” Kontur Decl. ¶ 4, Ex. A. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 8 of 37 Page ID #:261 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. UNCONTROVERTED FACTS SUPPORTING EVIDENCE 25. On October 1, 2014, Mr. Heredia and Mr. Kontur investigated the issues raised by Mr. Lee, including the use of the “Final Sale” stamp. Kontur Decl. ¶ 9. Heredia Decl. ¶ 8. 26. In connection with the investigation, on October 1, 2014, Mr. Heredia and William Kontur, the Human Resources Business Partner assigned to Plaintiff’s store, went to the Crenshaw and Imperial store to interview witnesses. Kontur Decl. ¶ 10. Heredia Decl. ¶ 9. 27. On October 1, 2014, Mr. Heredia found two “Final Sale” stamps in one of the register drawers in Plaintiff’s store. Williams Depo. 147:1-14; 149:5-150:4. Heredia Decl. ¶ 9. 28. On October 1, 2014, in connection with the investigation, Mr. Heredia and Mr. Kontur interviewed Plaintiff. Williams Depo. 137:16-138:24; 140:18- 141:12. Kontur Decl. ¶ 11. Heredia Decl. ¶ 10. 29. During the interview with Plaintiff on October 1, 2014, Mr. Heredia told Plaintiff that the purpose of the investigation was in regards to the “Final Sale” stamp. Williams Depo. 137:16-138:24; 140:18- 141:12. Kontur Decl. ¶ 13. Heredia Decl. ¶ 10. 30. During the interview with Plaintiff on October 1, 2014, Plaintiff acknowledged that he was made aware of the use of the “Final Sale” stamp on I- Williams Depo. 137:16-138:24; 140:18- 141:12. Kontur Decl. ¶ 13. Heredia Decl. ¶ 10 & 11, Ex. C. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 9 of 37 Page ID #:262 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Phone Launch Day. 31. On October 1, 2014, Mr. Heredia asked Plaintiff to write a statement summarizing the information he stated during his interview after Plaintiff was interviewed. Williams Depo. 137:16-138:24. Kontur Decl. ¶ 14. Heredia Decl. ¶ 11. 32. On October 1, 2014, Mr. Heredia asked Plaintiff to include additional information in his written statement regarding what Plaintiff told relayed during his interview, as Plaintiff initially did not include everything he said. Williams Depo. 137:16-138:24; 190:8- 193:6; 221:22-222:10. Kontur Decl. ¶ 14. Heredia Decl. ¶ 11. 33. Mr. Heredia did not tell Plaintiff to include false or inaccurate information in Plaintiff’s written statement. Williams Depo. 138:25-140:9; 141:13- 143:2; 190:4-7; 193:7-22. Kontur Decl. ¶ 14. Heredia Decl. ¶ 11. 34. As part of the October 1, 2014 investigation, Mr. Heredia and Mr. Kontur interviewed seven other employees, including Gisselle Garcia (Retail Sales Leader), Shawn Brown (Retail Sales Associate), Josie Osorio (Retail Sales Associate), Daniel Saucedo (Retail Associate Manager), Kaylan Hampton (Retail Sales Leader), Jordan Van Rjisbergen (Interim District Manager), and Heredia Decl. ¶ 13. Kontur Decl. ¶ 11. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 10 of 37 Page ID #:263 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Lila Viveros (District Manager). 35. Gisselle Garcia self-identifies as Hispanic, Shawn Brown self-identifies as African-American, Josie Osorio self- identifies as Hispanic, Daniel Saucedo self-identifies as Hispanic, Kaylan Hampton self-identifies as African- American, Jordan Van Rjisbergen self- identifies as Mixed-Race, and Lila Viveros self-identifies as Hispanic. Kontur Decl. ¶ 12. 36. In connection with the investigation, Mr. Heredia interviewed Ms. Garcia, Ms. Osorio, and Mr. Brown on October 1, 2014. Heredia Decl. ¶ 14. Kontur Decl. ¶ 11. 37. When Mr. Heredia interviewed Ms. Garcia, she told Mr. Heredia that the “Final Sale” stamp was raised during a management team call as a way to deter the products from being returned. She said Plaintiff told her to purchase the “Final Sale” stamp and that Plaintiff would later reimburse her. Ms. Garcia provided a written statement relaying such information. Heredia Decl. ¶ 12, Ex. D. Kontur Decl. ¶ 15. 38. When Mr. Heredia interviewed Ms. Osorio, she stated that Plaintiff told her to Heredia Decl. ¶ 15. Kontur Decl. ¶ 16. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 11 of 37 Page ID #:264 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. UNCONTROVERTED FACTS SUPPORTING EVIDENCE use the “Final Sale” stamp on all bundled sales. Ms. Osorio did not provide a written statement, as she did not want to be involved. 39. When Mr. Heredia interviewed Mr. Brown, who had a “Final Sale” strip on one of his sales, he stated that he did not know anything about the use of the “Final Sale” stamp. Mr. Brown provided a written statement relaying such information. Heredia Decl. ¶ 16, Ex. E. Kontur Decl. ¶ 17. 40. In connection with the investigation, Mr. Heredia interviewed Mr. Saucedo and Ms. Hampton on October 6. Kontur Decl. ¶ 11. 41. When Mr. Heredia interviewed Mr. Saucedo, he stated that he was not part of the leadership call held by Plaintiff but that he saw the “Final Sale” stamp on the I-Phone Launch Day. Mr. Saucedo provided a written statement relaying such information. Heredia Decl. ¶ 17, Ex. F. Kontur Decl. ¶ 18. 42. When Mr. Heredia interviewed Ms. Hampton, she stated that Ms. Garcia mentioned the “Final Sale” stamp during the leadership call led by Plaintiff and that she saw the “Final Sale” stamp when she Heredia Decl. ¶ 18, Ex. G. Kontur Decl. ¶ 19. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 12 of 37 Page ID #:265 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. UNCONTROVERTED FACTS SUPPORTING EVIDENCE got to work. Ms. Hampton provided a written statement relaying such information. 43. In connection with the investigation, Mr. Heredia interviewed Ms. Viveros and Mr. Van Rjisbergen on October 30, 2014. Kontur Decl. ¶ 11. 44. When Mr. Heredia interviewed Mr. Van Rjisbergen and Ms. Viveros, they both stated that they did not direct Plaintiff to use the “Final Sale” stamp. Mr. Rjisbergen further stated that the use of the “Final Sale” stamp “is an unethical practice” and a violation of T-Mobile’s Code of Business Conduct. Mr. Rjisbergen provided a written statement relaying such information. Heredia Decl. ¶ 19, Ex. H. Kontur Decl. ¶ 20. 45. After interviewing Plaintiff, Ms. Garcia, and Ms. Osorio, Mr. Heredia conferred with Regional Director Joe Perez, and they determined that further investigation was necessary. Kontur Decl. ¶ 22. 46. Plaintiff was placed on paid administrative leave pending the investigation. Kontur Decl. ¶ 22. 47. Ms. Garcia, Ms. Hamilton, and Ms. Hampton each received a Formal Kontur Decl. ¶ 24. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 13 of 37 Page ID #:266 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Reminder for violation of T-Mobile’s return policy and Code of Business Conduct. 48. On October 6, 2014, while Plaintiff was still on paid administrative leave, Plaintiff sent an email to human resources regarding his concerns with the investigation and being placed on administrative leave. Specifically, Plaintiff stated that he felt coerced by Mr. Heredia in writing his statement because he felt his initial statement was sufficient and that Mr. Heredia’s request that he include additional information Plaintiff told Mr. Heredia was inappropriate. In the email, Plaintiff further claimed Mr. Heredia only interviewed “the most seemingly vulnerable and easily manipulated members of management.” Plaintiff further stated he felt he was being “made to be an example because of all the controversy in Los Angeles surrounding Iphone launch.” Declaration of Angela Wren (“Wren Decl.”) ¶ 3, Ex. A. 49. In response to Plaintiff’s email, Angela Wren, Director of Human Resources told Plaintiff that she and other Williams Depo. 233:7-235:4. Wren Decl. ¶ 3, Ex. A, & 4. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 14 of 37 Page ID #:267 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14. UNCONTROVERTED FACTS SUPPORTING EVIDENCE members of human resources were looking into the matter. 50. In response to Plaintiff’s October 6, 2014 email, Ms. Wren investigated the issues raised in Plaintiff’s email and concluded neither Mr. Heredia nor Mr. Kontur engaged in any wrongdoing. Wren Decl. ¶ 5. 51. No other T-Mobile stores have ever implemented the use of a “Final Sale” stamp. Williams Depo. 225:22-226:25. 52. T-Mobile is an equal opportunity employer. T-Mobile’s Equal Employment Opportunity policy explicitly states: “All decisions concerning the employment relationship will be made without regard to age, race, color, religion, creed, sex, sexual orientation, gender identity or expression, national origin, marital status, veteran status, the presence of any physical or mental disability, or any other status or characteristic protected by federal, state, or local law. Discrimination, retaliation or harassment based upon any of these factors is wholly inconsistent with how we do business and will not be tolerated.” Kontur Decl. ¶ 4, Exs. A & B. 53. T-Mobile is committed to diversity. Kontur Decl. ¶ 4, Exs. A & B. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 15 of 37 Page ID #:268 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. UNCONTROVERTED FACTS SUPPORTING EVIDENCE T-Mobile’s Diversity and Inclusion practice states: “TMUS takes pride in creating a work environment that is inclusive and respectful for all employees – where individual differences are valued and appreciated. The Company supports a Diversity Council and Employee Networks that provide opportunities for employees to learn, mentor, advocate and engage.” 54. Between January 2013 and October 2014, T-Mobile employed approximately 8 Retail Store Managers who self- identified as African-American in the Los Angeles area. Kontur Decl. ¶ 6. 55. After the investigation was completed, Regional Director Joe Perez, in consultation with Human Resources, decided to separate Plaintiff because 1) Plaintiff implemented and knowingly allowed use of the “Final Sale” stamp in violation of T-Mobile’s return policy, which altered established T-Mobile policies and procedures without partnership with upper management, 2) because Plaintiff had previously exhibited this behavior when he instructed his direct Kontur Decl. ¶ 24. Viveros Decl. ¶ 5. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 16 of 37 Page ID #:269 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16. UNCONTROVERTED FACTS SUPPORTING EVIDENCE reports to violate T-Mobile’s Cash Handling procedures, and 3) because Mr. Kontur believed that the use of the “Final Sale” stamp violated California law. 56. Pursuant to T-Mobile’s Performance Improvement Plan, “[s]ome performance and behavior issues warrant termination without PIP.” Kontur Decl. ¶ 4, Ex. A. 57. Mr. Heredia and Lila Viveros (Plaintiff’s District Manager in October 2014) were scheduled to speak with Plaintiff on October 10, 2014 at 10:30 a.m. where they planned to tell Plaintiff about the findings of the investigation and the decision to separate him, but the meeting never took place, as Plaintiff asked to reschedule the meeting from Friday, October 10, 2014 to Monday, October 13, 2014 because he had a family emergency. Kontur Decl. ¶ 25. Viveros Decl. ¶ 6. 58. On October 13, 2014, Plaintiff sent an email to Ms. Viveros at approximately 7:32 a.m. on Monday, October 13, 2014 stating that he was resigning effective immediately to take “another career path.” Williams Depo. 197:8-200:14; 202:22- 203:15. Kontur Decl. ¶ 25. Viveros Decl. ¶ 6, Ex. C. 59. No one at T-Mobile told Plaintiff that he should resign. Williams Depo. 197:8-200:14; 202:22- 203:15. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 17 of 37 Page ID #:270 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. UNCONTROVERTED FACTS SUPPORTING EVIDENCE 60. Prior to his resignation, Plaintiff was unaware of T-Mobile’s ultimate decision to terminate Plaintiff’s employment. Williams Depo. 202:8-12. 61. When employees are first hired, they are informed of and given access to T-Mobile’s policies, including the Equal Employment Opportunity; Discrimination and Harassment-Free Environment, Open Door Policy, and Complaint Procedure – Discrimination, Harassment or Retaliation via T-Mobile’s internal employee database, OneVoice. Kontur Decl. ¶ 5. 62. T-Mobile has a zero tolerance anti- discrimination and anti-harassment policy. T-Mobile’s Discrimination and Harassment-Free Environment policy expressly states: “T-Mobile employees have the right to work in an environment that is free of unlawful discrimination and harassment. The Company prohibits discrimination and harassment based upon any individual’s age, race, color, religion, creed, sex, national origin, marital status, veteran status, sexual orientation, gender identity or expression, mental or physical disability, or any other status or Kontur Decl. ¶ 4, Exs. A & B. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 18 of 37 Page ID #:271 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18. UNCONTROVERTED FACTS SUPPORTING EVIDENCE characteristic protected by federal, state, or local law. Discrimination and harassment not only violate T-Mobile’s Code of Business Conduct, but may also violate federal, state, and local law.” 63. Plaintiff understood and was aware that T-Mobile had a zero tolerance policy prohibiting harassment and discrimination. Williams Depo. 74:20-24. 64. T-Mobile’s Open Door Policy urges employees to report any alleged discrimination and harassment and provides guidance as to how to address work-related issues. T-Mobile’s Open Door Policy expressly states: “TMUS has adopted an Open Door Policy to facilitate open, timely and direct communication and resolution of workplace issues free from retaliation.” Kontur Decl. ¶ 4, Exs. A & B. 65. Plaintiff understood and was aware that T-Mobile had an open-door policy where employees could contact human resources if they felt they were being discriminated or harassed. Williams Depo. 74:25-75:4. 66. T-Mobile’s Complaint Procedure – Discrimination, Harassment, or Retaliation policy details the process for employees to Kontur Decl. ¶ 4, Exs. A & B. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 19 of 37 Page ID #:272 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19. UNCONTROVERTED FACTS SUPPORTING EVIDENCE submit their complaints of alleged discrimination and harassment. It specifically states: “Anyone at TMUS who feels they have witnessed or experienced discrimination, including harassment, by a co-worker, manager, client, customer, vendor, contractor or anyone else at TMUS because of their race, age, color, religion, creed, sex, sexual orientation, gender identity or expression, national origin, marital status, veteran status, the presence of any physical or mental disability or any other characteristic protected by federal, state or local law should immediately speak to his/her Manager or HR Business Partner. Employees may find the appropriate HRBP on the myHR page on OneVoice.” 67. Throughout their employment, employees are trained on T-Mobile’s policies. Kontur Decl. ¶ 5. Williams Depo. 90:1-20. 68. Prior to October 1, 2014, Plaintiff had no complaints and never raised any concerns with human resources or his supervisors that he felt harassed or discriminated against. Williams Depo. 31:10-34:17; 75:5-9. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 20 of 37 Page ID #:273 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20. UNCONTROVERTED FACTS SUPPORTING EVIDENCE 69. Prior to October 1, 2014, Plaintiff did not have any employment-related issues with Mr. Heredia or Mr. Kontur. Williams Depo. 133:22-137:3. 70. Throughout his employment, Plaintiff was not exposed to any offensive comments or conduct. Williams Depo. 137:4-15; 195:1-197:7. 71. In 2013, Plaintiff claims that an unknown employee told him, “You’re a perfect fit for the boulevard”, Plaintiff is not certain the statement was a reference to his race and it was said playfully. Williams Depo. 137:4-15; 195:1-197:7. ISSUE NO. 2: Plaintiff’s claim for race discrimination fails because he cannot state a prima facie case of discrimination as he cannot establish a causal connection between his race and any adverse employment action. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. ISSUE NO. 3: Plaintiff’s claim for race discrimination fails because, even assuming arguendo that Plaintiff can establish a prima facie case, the actions taken by T-Mobile were based on legitimate, nondiscriminatory business reasons. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed Defendant hereby incorporates Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 21 of 37 Page ID #:274 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21. UNCONTROVERTED FACTS SUPPORTING EVIDENCE material facts nos. 1-71 as though fully set forth herein. undisputed material facts nos. 1-71 as though fully set forth herein. ISSUE NO. 4: Plaintiff’s claim for race discrimination fails because Plaintiff cannot show evidence of pretext. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. B. Harassment On The Basis Of Race In Violation Of FEHA: ISSUE NO. 5: Plaintiff’s claim for race harassment fails because he cannot state a prima facie case of harassment as the alleged conduct was not sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 4 and 61-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 4 and 61- 71 as though fully set forth herein. ISSUE NO. 6: Plaintiff’s claim for race harassment fails because he cannot state a prima facie case of harassment as he cannot establish a causal connection between his race and any alleged harassment. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 4 and 61-71 as though Defendant hereby incorporates undisputed material facts nos. 4 and 61- Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 22 of 37 Page ID #:275 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22. UNCONTROVERTED FACTS SUPPORTING EVIDENCE fully set forth herein. 71 as though fully set forth herein. ISSUE NO. 7: Plaintiff’s claim for race harassment fails because personnel management decisions cannot be the basis for a harassment claim. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. C. Failure To Take Remedial Action In Violation Of FEHA: ISSUE NO. 8: Plaintiff’s claim for failure to take remedial action fails because no private right of action exists for such a claim. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. ISSUE NO. 9: Plaintiff’s claim for failure to take remedial action fails because he cannot establish his underlying claims for discrimination and/or harassment. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. ISSUE NO. 10: Plaintiff’s claim for failure to take remedial action fails because Defendant took appropriate and adequate steps to prevent discrimination and Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 23 of 37 Page ID #:276 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23. harassment. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 48-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 48-71 as though fully set forth herein. ISSUE NO. 11: Plaintiff’s claim for failure to take remedial action fails because Plaintiff never complained about alleged harassment/discrimination during his employment. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 48-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 48-71 as though fully set forth herein. D. Intentional Infliction Of Emotional Distress (“IIED”): ISSUE NO. 12: Plaintiff’s claim for IIED fails because he cannot state a prima facie case of IIED as the conduct Plaintiff complains of was not outrageous. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 10-60 and 68-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 10-60 and 68-71 as though fully set forth herein. 72. On or around November 2014, about one month after Plaintiff resigned, he began working for Target as an Executive Team Leader of Logistics, where he worked the night shift for the Williams Depo. 29:10-31:9; 49:15- 50:10; 52:8-53:2; 58:8-59:6; 60:14-61:7 61:20-62:11. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 24 of 37 Page ID #:277 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24. first time in his life 73. On or around August 2015, Plaintiff’s doctor placed him on a leave of absence from Target. Williams Depo. 50:11-23; 55:14-56:7; 56:23-57:6. 74. Plaintiff’s doctor did not refer Plaintiff to a psychiatrist nor prescribed him any medication. Williams Depo. 206:1-9. ISSUE NO. 13: Plaintiff’s claim for IIED fails because he cannot state a prima facie case as he did not suffer severe emotional distress. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 10-60 and 68-74 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 10-60 and 68-74 as though fully set forth herein. ISSUE NO. 14: Plaintiff’s claim for IIED fails because he cannot state a prima facie case of IIED as Plaintiff cannot demonstrate that Defendant intended to inflict emotional distress or acted with reckless disregard of the probability that Plaintiff would suffer from emotional distress. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 10-60 and 68-74 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 10-60 and 68-74 as though fully set forth herein. ISSUE NO. 15: Plaintiff’s claim for IIED fails because he cannot state a prima facie case of IIED as he cannot establish that Defendant caused his emotional distress. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 25 of 37 Page ID #:278 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 10-60 and 68-74 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 10-60 and 68-74 as though fully set forth herein. E. Wrongful Termination In Violation Of Public Policy: ISSUE NO. 16: Plaintiff’s claim for wrongful termination fails because Defendant did not terminate his employment. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 57-60 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 57-60 as though fully set forth herein. ISSUE NO. 17: Plaintiff’s claim for wrongful termination fails because, even if Defendant terminated Plaintiff’s employment, Defendant had a legitimate, nondiscriminatory reason for such termination. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. ISSUE NO. 18: Plaintiff’s claim for wrongful termination fails because it is derivative of his claims for discrimination and harassment, which fail. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 26 of 37 Page ID #:279 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26. F. Constructive Discharge In Violation Of Public Policy: ISSUE NO. 19: Plaintiff’s claim for constructive discharge fails because the working conditions at the time of his resignation were not so intolerable or aggravated that a reasonable person would be compelled to resign. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. ISSUE NO. 20: Plaintiff’s claim for constructive discharge fails because he resigned for personal reasons unrelated to his employment. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 58-60 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 58-60 as though fully set forth herein. G. Punitive Damages: ISSUE NO. 21: Plaintiff’s prayer for relief for punitive damages against Defendant fails because he cannot establish by clear and convincing evidence that an officer, director, or managing agent of Defendant acted with malice, oppression or fraud. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. ISSUE NO. 22: Plaintiff’s prayer for relief for punitive damages against Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 27 of 37 Page ID #:280 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27. Defendant fails because he cannot establish by clear and convincing evidence that an officer, director, or managing agent of Defendant authorized or ratified the conduct of someone who acted with malice, oppression, or fraud or had advanced knowledge of the unfitness of any employee that acted with malice, oppression, or fraud. UNCONTROVERTED FACTS SUPPORTING EVIDENCE Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. Defendant hereby incorporates undisputed material facts nos. 1-71 as though fully set forth herein. CONCLUSIONS OF LAW Based on the foregoing Uncontroverted Facts, the following Conclusions of Law should be made: 1. Summary judgment is appropriate if the pleadings, discovery responses, and declarations, if any, show there is no genuine issue of material fact. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Coverdell v. Dep’t of Soc. & Health Servs., 834 F.2d 658, 768 (9th Cir. 1987). In a motion for summary judgment, the moving party is not required to produce evidence showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325. Rather, the moving party’s burden is satisfied by showing an absence of evidence to support the non- moving party’s case. Id. Once the moving party shows the absence of evidence, the burden shifts to the nonmoving party to establish a genuine issue of fact. Id. at 323. Summary judgment is appropriate where the non-moving party fails to make a showing sufficient to establish a genuine issue of fact. Id. “A ‘scintilla of evidence,’ or evidence that is ‘merely colorable’ or ‘not significantly probative,’ is not sufficient to present a genuine issue as to a material fact.” United Steelworkers of Am. v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir. 1989). To survive summary judgment, Plaintiff “must do more than simply show that there is some metaphysical doubt as to the Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 28 of 37 Page ID #:281 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28. material facts”; rather, he “must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Namely, Plaintiff must present specific “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). 2. To establish a prima facie discrimination case, a plaintiff must show that (1) he is a member of a protected class; (2) an adverse action occurred; (3) at the time of the adverse action, he was satisfactorily performing his job; and (4) a causal connection exists between the adverse action and the plaintiff’s membership in the protected class or classes. Hersant v. Cal. Dep’t of Social Servs., 57 Cal. App. 4th 997, 1002-03 (1997). “It is not enough for the employee simply to raise triable issues of fact concerning whether the employer’s reasons for taking the adverse action were sound.” Id. at 1005. 3. The plaintiff bears the ultimate burden of establishing that the employer’s actions are unlawful discrimination. Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 864, 886 (2007). To meet this initial burden, the plaintiff must “produce evidence that, taken as a whole, permits a rational inference that intentional discrimination was a substantial motivating factor in the employer’s actions toward the plaintiff.” Horsford v. Bd. of Trustees of Cal. State Univ., 132 Cal. App. 4th 359, 377 (2005) (emphasis added). 4. If a plaintiff establishes a prima facie case, the company must demonstrate a legitimate, non-discriminatory business reason for its actions. Id. Once the employer has done so, the burden shifts to the plaintiff to put forth specific facts to show that a triable issue exists that the reason given by the employer is actually a pretext for discrimination. 5. Plaintiff’s claim for race discrimination fails because he cannot state a prima facie case of discrimination as he cannot show that he was subjected to an adverse employment action. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 29 of 37 Page ID #:282 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29. 6. Conducting an investigation is not an adverse employment action. An “adverse employment action” is a change in “terms, conditions, or privileges of employment.” Horsford, 132 Cal. App. 4th at 373. To be actionable, the adverse treatment must be “reasonably likely to impair a reasonable employee’s job performance or prospects for advancement” as distinguished from minor or relatively trivial actions that are likely to do no more than displease. Id. 7. Being placed in paid administrative leave is not an adverse action as a matter of law. California courts and other federal courts have so held. See McRae v. Dep’t of Corrs. & Rehab., 142 Cal. App. 4th 377, 392 (2006) (rejecting the proposition that an investigation and a recommendation for discipline that was not implemented amounted to an adverse action); Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (paid administrative leave not adverse action unless the employer takes actions beyond an employee’s normal exposure to disciplinary policies); Joseph v. Leavitt, 465 F.3d 87, 91–92 (2d Cir. 2006) (paid leave during internal affairs investigation and continuation on paid leave after criminal charges were dismissed were not adverse actions); Singletary v. Mo. Dep’t of Corrs., 423 F.3d 886, 889, 891–92 (8th Cir. 2005) (three months’ paid leave pending internal affairs investigation and extension of employee’s probationary period after return to work were not adverse actions); Peltier v. United States, 388 F.3d 984, 988–89 (6th Cir. 2004) (paid leave during internal investigation were not adverse actions); Breaux v. City of Garland, 205 F.3d 150, 157–58 (5th Cir. 2000) (paid leave and investigation of police officer’s misconduct based on purportedly false accusations). 8. Plaintiff’s claim for race discrimination fails because he cannot state a prima facie case of discrimination as he cannot establish a causal connection between his race and any adverse employment action. 9. Plaintiff’s claim for race discrimination fails because, even assuming arguendo that Plaintiff can establish a prima facie case, the actions taken by T-Mobile were based on legitimate, nondiscriminatory business reasons. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 30 of 37 Page ID #:283 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30. 10. In analyzing whether an employer has articulated a legitimate business reason for its conduct, the law affords substantial latitude to employers in running their business and making personnel decisions. Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 358 (2000) (employer’s business reasons need not have been wise or correct). “[L]egitimate” reasons are those “that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” Id. 11. Plaintiff’s claim for race discrimination fails because Plaintiff cannot show evidence of pretext. 12. To establish pretext, Plaintiff must demonstrate, with specific and substantial evidence, that T-Mobile’s proffered reasons were not the true reasons for the employment decision, but that a discriminatory reason motivated its actions. See Horn v. Cushman & Wakefield W., 72 Cal. App. 4th 798, 807 (1999); Kerr v. Rose, 216 Cal. App. 3d 1551, 1564 (1990) (“[S]uspicions of improper motives . . . based primarily on conjecture and speculation” are not sufficient to meet this burden.). 13. To state a claim for harassment under the FEHA, Plaintiff must establish: (1) that he was subjected to unwanted harassing conduct; (2) that the harassment was based on his race; and (3) that the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 608 (1989). 14. Plaintiff’s claim for race harassment fails because he cannot state a prima facie case of harassment as the alleged conduct was not sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment. 15. In determining whether conduct is severe and pervasive, courts have held that harassing conduct “cannot be occasional, isolated, sporadic or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated routine or generalized nature.” Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 610 Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 31 of 37 Page ID #:284 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31. (1989). In addition, a plaintiff must establish that he perceived his work environment to be hostile and that a reasonable person in his position would perceive it to be so. Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1527 (9th Cir. 1995). The allegedly hostile conduct must go beyond “merely offensive” so that it changes the terms and conditions of the victim’s job. EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 999 (9th Cir. 2010). 16. Plaintiff’s claim for race harassment fails because he cannot state a prima facie case of harassment as he cannot establish a causal connection between his race and any alleged harassment. One isolated comment that is unrelated to race is not sufficient to state a claim for harassment as a matter of law. See Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121, 130-31 (1999) (holding that “occasional, isolated, sporadic, or trivial” acts are generally not enough to alter the conditions of employment and create a hostile environment). 17. Plaintiff’s claim for race harassment fails because personnel management decisions cannot be the basis for a harassment claim. See Gathenji v. Autozoners, LLC, 703 F. Supp. 2d 1017, 1033 (E.D. Cal. 2010) (“[C]ommonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations…deciding who will or who will not attend meetings, deciding who will be laid off, and the like do not come within the meaning of harassment.”). 18. Plaintiff’s claim for failure to take remedial action fails because no private right of action exists for such a claim. Dep’t of Fair Emp’t & Hous. v. Lyddan Law Grp., No. 10-04-P, FEHC Precedential Decs. 2010, 2010 WL 4901732, at *12 (Cal. F.E.H.C. Oct. 19, 2010). Under Lyddan, an employee who is the victim of discrimination may bring a claim for the discrimination or harassment, but the power to prosecute violations of California Government Code Section 12940(k) lies solely with the Department of Fair Employment and Housing (“DFEH”). Id. at *16 (“[W]e Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 32 of 37 Page ID #:285 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32. expressly do not find that such a claim gives rise to an actionable tort or private cause of action in civil proceedings between private litigants.”). 19. Plaintiff’s claim for failure to take remedial action fails because he cannot establish his underlying claims for discrimination and/or harassment. Trujillo v. N. Co. Transit Dist., 63 Cal. App. 4th 280, 286 (1998). 20. Plaintiff’s claim for failure to take remedial action fails because Defendant took appropriate and adequate steps to prevent discrimination and harassment. Under the FEHA, an employer takes all reasonable steps necessary to prevent harassment and discrimination if it provides information to its employees advising them of policies, internal complaint procedures, and legal protection against harassment and discrimination. See, e.g., Cal. Fair Emp’t and Hous. Comm’n v. Gemini Aluminum Corp., 122 Cal. App. 4th 1004, 1025 (2004). 21. Plaintiff’s claim for failure to take remedial action fails because Plaintiff never complained about alleged harassment/discrimination during his employment. 22. To state a claim for IIED, a plaintiff must show: (1) outrageous conduct, (2) that was intentionally caused or recklessly disregarded the probability of causing emotional distress, (3) that Plaintiff suffered severe emotional distress; and (4) that the outrageous conduct was the actual and proximate cause of his emotional distress. See Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148, 155 n.7 (1987). 23. Plaintiff’s claim for IIED fails because he cannot state a prima facie case of IIED as the conduct Plaintiff complains of was not outrageous. 24. To be “outrageous,” the conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Davidson v. City of Westminster, 32 Cal. 3d 197, 209 (1982) (quoting Cervantez v. J.C. Penney Co., 24 Cal. 3d 579, 593 (1979)). Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 617, (1989). Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 33 of 37 Page ID #:286 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33. 25. Personnel actions are not so extreme and outrageous as to go “beyond all possible bounds of decency.” Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 80 (1996). 26. Plaintiff’s claim for IIED fails because he cannot state a prima facie case as he did not suffer severe emotional distress. Plaintiff’s allegations of emotional distress (sleeplessness, headaches, nausea, and upset stomach) do not rise to the level of being “severe” under the law. Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1246 (9th Cir. Cal. 2013) (finding that employee’s emotional injuries that manifested as “[a]nxiety, sleeplessness, upset stomach, [and] sometimes muscle twitches” did not rise to the level of “severe” for purposes of intentional infliction of emotional distress claim). 27. “Severe emotional distress” means “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1004 (1993). 28. Plaintiff’s claim for IIED fails because he cannot state a prima facie case of IIED as Plaintiff cannot demonstrate that Defendant intended to inflict emotional distress or acted with reckless disregard of the probability that Plaintiff would suffer from emotional distress. 29. Plaintiff’s claim for IIED fails because he cannot state a prima facie case of IIED as he cannot establish that Defendant caused his emotional distress. 30. To establish a prima facie claim for wrongful discharge in violation of public policy, Plaintiff must demonstrate (1) an employer-employee relationship; (2) termination or other adverse employment action; (3) a nexus between the adverse action and the employee’s protected activity; (4) the adverse action was a legal cause of their damage; and (5) the nature and extent of their damage. See Holmes v. Gen. Dynamics Corp., 17 Cal. App. 4th 1418, 1426 (1993). Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 34 of 37 Page ID #:287 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34. 31. Plaintiff’s claim for wrongful termination fails because Defendant did not terminate his employment. 32. Plaintiff’s claim for wrongful termination fails because, even if Defendant terminated Plaintiff’s employment, Defendant had a legitimate, nondiscriminatory reason for such termination. 33. Plaintiff’s claim for wrongful termination fails because it is derivative of his claims for discrimination and harassment, which fail. TRW, Inc. v. Super. Ct., 25 Cal. App. 4th 834, 1844-49 (1994), cert. denied, 513 U.S. 1151 (1995) (no cause of action for wrongful termination in violation of public policy where the employer did not violate the constitutional or statutory provision asserted as the basis for the claim); Jennings v. Marralle, 8 Cal. 4th 121, 135 (1984) (noting that no claim for violation of public policy exists against employers who have not violated the law). 34. To establish a claim for constructive discharge, an employee must prove by a preponderance of the evidence “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.” Turner, 7 Cal. 4th at 1251. 35. Plaintiff’s claim for constructive discharge fails because the working conditions at the time of his resignation were not so intolerable or aggravated that a reasonable person would be compelled to resign. Turner, 7 Cal. 4th at 1246-47 (to be “intolerable,” circumstances must be unusually aggravated or amount to a continuous pattern of objectionable conduct); Gibson v. Aro Corp., 32 Cal. App. 4th 1628, 1636- 37 (1995) (employee’s embarrassment and hurt feelings resulting from demotion does not transform his resignation into a constructive discharge). 36. Plaintiff’s claim for constructive discharge fails because he resigned for personal reasons unrelated to his employment. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 35 of 37 Page ID #:288 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35. 37. Under California law, to maintain a claim for punitive damages, a plaintiff must proffer clear and convincing evidence of malice, oppression or fraud. Cal. Civ. Code § 3294(a); Basich v. Allstate Ins., 87 Cal. App. 4th 1112, 1118-21 (2001). The “clear and convincing” standard requires a finding that the evidence “must be so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.” Mock v. Mich. Millers Mutual Ins. Co., 4 Cal. App. 4th 306, 332 (1992) (internal citation omitted). 38. “Malice” for the purposes of punitive damages, means conduct which is intended to cause injury to the plaintiff or “despicable conduct” which is carried on with willful and conscious disregard of the rights and safety of others. Cal. Civ. Code § 3294(c)(1). 39. “Oppression” requires “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Id. at section 3294(c)(2). 40. Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” Tomaselli v. Transamerica Ins. Co., 25 Cal. App. 4th 1269, 1286-87 (1994). 41. Even if a plaintiff is able to establish his underlying claims, that alone does not entitle him to punitive damages. See Mathieu v. Norrell Corp., 115 Cal. App. 4th 1174 (2004) (finding summary judgment proper on punitive damages claim despite potentially valid FEHA retaliation claim, based on plaintiff’s failure to satisfy requirements of Civil Code §3294). 42. Plaintiff’s prayer for relief for punitive damages against Defendant fails because he cannot establish by clear and convincing evidence Defendant made any employment decisions as a result of malice, oppression or fraud. Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 36 of 37 Page ID #:289 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36. 43. Plaintiff’s prayer for relief for punitive damages against Defendant fails because he cannot establish by clear and convincing evidence that an officer, director, or managing agent of Defendant acted with malice, oppression or fraud. Dated: June 12, 2017 /s/Elizabeth Nguyen ELIZABETH NGUYEN DEBRA URTEAGA LITTLER MENDELSON, P.C. Attorneys for Defendant T-MOBILE USA, INC. Firmwide:147790948.5 066431.1010 Case 2:16-cv-04972-SJO-JPR Document 26-2 Filed 06/12/17 Page 37 of 37 Page ID #:290 Case 2:16-cv-04972-SJO-JPR Document 26-3 Filed 06/12/17 Page 1 of 36 Page ID #:291 Case 2:16-cv-04972-SJO-JPR Document 26-3 Filed 06/12/17 Page 2 of 36 Page ID #:292 Case 2:16-cv-04972-SJO-JPR Document 26-3 Filed 06/12/17 Page 3 of 36 Page ID #:293 Case 2:16-cv-04972-SJO-JPR Document 26-3 Filed 06/12/17 Page 4 of 36 Page ID #:294 Case 2:16-cv-04972-SJO-JPR Document 26-3 Filed 06/12/17 Page 5 of 36 Page ID #:295 Case 2:16-cv-04972-SJO-JPR Document 26-3 Filed 06/12/17 Page 6 of 36 Page ID #:296 Case 2:16-cv-04972-SJO-JPR Document 26-3 Filed 06/12/17 Page 7 of 36 Page ID #:297 Case 2:16-cv-04972-SJO-JPR Document 26-3 Filed 06/12/17 Page 8 of 36 Page ID #:298 Case 2:16-cv-04972-SJO-JPR Document 26-3 Filed 06/12/17 Page 9 of 36 Page ID #:299 Case 2:16-cv-04972-SJO-JPR Document 26-3 Filed 06/12/17 Page 10 of 36 Page ID #:300 Case 2:16-cv-04972-SJO-JPR Document 26-3 Filed 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#:372 Case 2:16-cv-04972-SJO-JPR Document 26-6 Filed 06/12/17 Page 1 of 11 Page ID #:373 Case 2:16-cv-04972-SJO-JPR Document 26-6 Filed 06/12/17 Page 2 of 11 Page ID #:374 Case 2:16-cv-04972-SJO-JPR Document 26-6 Filed 06/12/17 Page 3 of 11 Page ID #:375 Case 2:16-cv-04972-SJO-JPR Document 26-6 Filed 06/12/17 Page 4 of 11 Page ID #:376 Case 2:16-cv-04972-SJO-JPR Document 26-6 Filed 06/12/17 Page 5 of 11 Page ID #:377 Case 2:16-cv-04972-SJO-JPR Document 26-6 Filed 06/12/17 Page 6 of 11 Page ID #:378 Case 2:16-cv-04972-SJO-JPR Document 26-6 Filed 06/12/17 Page 7 of 11 Page ID #:379 Case 2:16-cv-04972-SJO-JPR Document 26-6 Filed 06/12/17 Page 8 of 11 Page ID #:380 Case 2:16-cv-04972-SJO-JPR Document 26-6 Filed 06/12/17 Page 9 of 11 Page ID #:381 Case 2:16-cv-04972-SJO-JPR Document 26-6 Filed 06/12/17 Page 10 of 11 Page ID #:382 Case 2:16-cv-04972-SJO-JPR Document 26-6 Filed 06/12/17 Page 11 of 11 Page ID #:383 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELIZABETH NGUYEN, Bar No. 238571 enguyen@littler.com DEBRA URTEAGA, Bar No. 278744 durteaga@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 Attorneys for Defendant T-MOBILE USA, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DARRELL WILLIAMS, Plaintiff, v. T-MOBILE USA, INC., and Art Heredia, as an individual and DOES 1 through 100, inclusive, Defendants. Case No. 2:16-cv-04972-SJO-JPR [PROPOSED] ORDER GRANTING DEFENDANT T-MOBILE USA, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: July 10, 2017 Time: 10:00 a.m. Courtroom: 10C Complaint Filed: May 20, 2016 (Los Angeles County Superior Court Case No. BC621103) Case 2:16-cv-04972-SJO-JPR Document 26-7 Filed 06/12/17 Page 1 of 5 Page ID #:384 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DARRELL WILLIAMS, Plaintiff, v. T-MOBILE USA, INC., and Art Heredia, as an individual and DOES 1 through 100, inclusive, Defendants. Case No. 2:16-cv-04972-SJO-JPR ORDER GRANTING DEFENDANT T-MOBILE USA, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: July 10, 2017 Time: 10:00 a.m. Courtroom: 10C Complaint Filed: May 20, 2016 (Los Angeles County Superior Court Case No. BC621103) Case 2:16-cv-04972-SJO-JPR Document 26-7 Filed 06/12/17 Page 2 of 5 Page ID #:385 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (“Motion”) of Defendant T-Mobile USA, Inc. (“T-Mobile” or “Defendant”) came on regularly for hearing on July 10, 2017, the Honorable S. James Otero, judge presiding. The Court, having considered the evidence proffered in support of and in opposition to Defendant’s Motion, having read and considered the supporting, opposition and reply points and authorities, and having heard and considered the arguments of counsel, and good cause appearing therefore, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendant’s Motion for Summary Judgment is GRANTED. IT IS FURTHER ORDERED that Plaintiff’s claim for race discrimination fails because he cannot state a prima facie case of discrimination as he cannot show that he was subjected to an adverse employment action. IT IS FURTHER ORDERED that Plaintiff’s claim for race discrimination fails because he cannot state a prima facie case of discrimination as he cannot establish a causal connection between his race and any adverse employment action. IT IS FURTHER ORDERED that Plaintiff’s claim for race discrimination fails because, even assuming arguendo that Plaintiff can establish a prima facie case, the actions taken by T-Mobile were based on legitimate, nondiscriminatory business reasons. IT IS FURTHER ORDERED that Plaintiff’s claim for race discrimination fails because Plaintiff cannot show evidence of pretext. IT IS FURTHER ORDERED that Plaintiff’s claim for race harassment fails because he cannot state a prima facie case of harassment as the alleged conduct was not sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment. IT IS FURTHER ORDERED that Plaintiff’s claim for race harassment fails because he cannot state a prima facie case of harassment as he cannot establish a Case 2:16-cv-04972-SJO-JPR Document 26-7 Filed 06/12/17 Page 3 of 5 Page ID #:386 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. causal connection between his race and any alleged harassment. IT IS FURTHER ORDERED that Plaintiff’s claim for race harassment fails because personnel management decisions cannot be the basis for a harassment claim. IT IS FURTHER ORDERED that Plaintiff’s claim for failure to take remedial action fails because no private right of action exists for such a claim. IT IS FURTHER ORDERED that Plaintiff’s claim for failure to take remedial action fails because he cannot establish his underlying claims for discrimination and/or harassment. IT IS FURTHER ORDERED that Plaintiff’s claim for failure to take remedial action fails because Defendant took appropriate and adequate steps to prevent discrimination and harassment. IT IS FURTHER ORDERED that Plaintiff’s claim for failure to take remedial action fails because Plaintiff never complained about alleged harassment/discrimination during his employment. IT IS FURTHER ORDERED that Plaintiff’s claim for IIED fails because he cannot state a prima facie case of IIED as the conduct Plaintiff complains of was not outrageous. IT IS FURTHER ORDERED that Plaintiff’s claim for IIED fails because he cannot state a prima facie case as he did not suffer severe emotional distress. IT IS FURTHER ORDERED that Plaintiff’s claim for IIED fails because he cannot state a prima facie case of IIED as Plaintiff cannot demonstrate that Defendant intended to inflict emotional distress or acted with reckless disregard of the probability that Plaintiff would suffer from emotional distress. IT IS FURTHER ORDERED that Plaintiff’s claim for IIED fails because he cannot state a prima facie case of IIED as he cannot establish that Defendant caused his emotional distress. IT IS FURTHER ORDERED that Plaintiff’s claim for wrongful termination fails because Defendant did not terminate his employment. Case 2:16-cv-04972-SJO-JPR Document 26-7 Filed 06/12/17 Page 4 of 5 Page ID #:387 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. IT IS FURTHER ORDERED that Plaintiff’s claim for wrongful termination fails because, even if Defendant terminated Plaintiff’s employment, Defendant had a legitimate, nondiscriminatory reason for such termination. IT IS FURTHER ORDERED that Plaintiff’s claim for wrongful termination fails because it is derivative of his claims for discrimination and harassment, which fail. IT IS FURTHER ORDERED that Plaintiff’s claim for constructive discharge fails because the working conditions at the time of his resignation were not so intolerable or aggravated that a reasonable person would be compelled to resign. IT IS FURTHER ORDERED that Plaintiff’s claim for constructive discharge fails because he resigned for personal reasons unrelated to his employment. IT IS FURTHER ORDERED that Plaintiff’s prayer for relief for punitive damages against Defendant fails because he cannot establish by clear and convincing evidence Defendant made any employment decisions as a result of malice, oppression or fraud. IT IS FURTHER ORDERED that Plaintiff’s prayer for relief for punitive damages against Defendant fails because he cannot establish by clear and convincing evidence that an officer, director, or managing agent of Defendant acted with malice, oppression or fraud. IT IS SO ORDERED. Dated: ________________, 2017 S. JAMES OTERO U.S. DISTRICT COURT JUDGE Firmwide:147739049.1 066431.1010 Case 2:16-cv-04972-SJO-JPR Document 26-7 Filed 06/12/17 Page 5 of 5 Page ID #:388