This is аn employment discrimination dispute between Plaintiff Juan Carlos Robles (“Robles”) and his former employer, Defendant Agreserves, Inc. (“Agre-serves”), his former ■ foreman Defendant George Campo (“Campo”),
SUMMARY JUDGMENT FRAMEWORK .
Summary judgment is proper when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Adickes v. S.H. Kress & Co.,
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun,
The opposing party’s evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson,
FACTUAL BACKGROUND
Agreserves is in the business of growing almonds and pistachios in Wasco, California. See DUMF 1. Agreserves has both seasonal and permanent employees. DUMF 2. Agreserves employed Robles from February 4, 2013 to April 1, 2013 as an agricultural temporary, seasonal farm laborer and sprayer, i.e. performing manu
At the outset of Robles’s employment, Robles participated in a multi-hour orientation where Agreserves’s workplace policies where explained, including the work stoppage practices for legally compliant meal and rest periods. See DUMF 10. Agreserves’s policy is to provide all lawful and compliant meal and rest periods to its employees by ceasing operations and stopping work for all non-exempt agricultural employees. See DUMF 9.
Campo was a foreman who worked with Robles for three weeks, about February 4 to February 25. DUMF 7. Campo had no authority to hire, fire, demote, promote, or make other material changes to Robles’s employment, or with respect to any other employee. DUMF 8. However, Campo assigned Robles day to day job duties, Robles had to follow Campo’s instructions, and Campo would supervise Robles’s work. See PUMF’s 2, 3, 5; Campo Dec. ¶ 2.
During the time Robles worked under Campo, Campo would tell, Robles almost daily things like: “Your religion is nothing, less than -my religion,” or “I’m a better person than you guys because your religion is less than my religion,” or ‘You are less than me. I have a better job than you guys. I’m a Mormon and you guys are less than me,” or “My religion is on top. We are better than anyone else.” PUMF’s 74, 75, 76, 77. Robles is Catholic and Campo is Mormon. See PUMF’s 71, 73. Robles was also forced or required to participate in a Mormon prayer about 3 times, oncе'in the shop and twice in the field. See PUMF 78; Robles Depo. 438:19-439:23.
Around mid-February 2013, Robles and 4 or, 6 co-workers (who were Mexican) were sent to fix- part of the irrigation system. See Robles Depo. 115:2-7; Robles Dec. ¶ 9. Robles and the others were traveling from North to South on 4-wheeler motorcycles, which make a lot of noise. See Robles Depo. 115:7-9. As the group was traveling, they began to hear someone was shooting a gun. See id. at 115:9-12. Robles did not know which directions the shots were coming from. See id. at 115:12-13. After the scene became quiet, some of the coworkers said that it was Campo who fired the shots, because he was the only one who did that. See id. at 115:13-16. The group continued traveling when Robles again heard shooting “in front óf us.” See id. at 115:16-18. The group then saw a pack of coyotes running from East to West. See id. at 115:118-20. Coyotes and other vermin pose a danger to employees and the worksite, see DUMF 44; Campo Dec. ¶ 5, and the repair work that Robles was performing was due to wild animals (including coyotes) gnawing on the irrigation lines. See Robles Depo. 116:16-117:6. Robles declares that Campo was directing gunfire towards the workers; Campo declares he was shooting at the coyotes because of the dangers they pose, and he did not aim or shoot at humans. See Robles Dec. ¶ 9; Campo Dec. ¶ 5.
For three days, while working under Campo, Robles was not given the opportunity to take a meal break while at the machine shop because he was ordered to sweep. See PUMF 91; Robles Depo. 121:16-122:25. When other workers were taking a meal break, “John” (who was in charge of the mechanics) told Robles that Campo ordered Robles to sweep. ■ See PUMF 90. Also, for an additional seven days while working under Campo, Robles was not given the opportunity to take a meal break in the field because Campo
On February 11, 2013, Campo gave Robles a ride from one worksite- to another. See DUMF’s 39, 40, 41; PUMF. 82. During the ride, Robles complained about Campo making him sweep and missing the meal break. See Robles Depo. 123:9-24, Campo then became upset, started hitting the seat, and hit Robles’s hand two or three times. See id.; DUMF 40; PUMF 82. Cam-po also became upset during a telephone call with his wife. See PUMF 88. Robles asked Campo to let him out of the car, but Campo refused and continued driving for an additional, 15 minutes. See DUMF 38; see also PÚMF 88.
Beginning in March 2013, Robles worked in a pesticide spraying crew under foreman Miguel Cervantes (“Cervantes”). See PUMF’s 12, 13. Robles complained to Cervantes and showed Cervantes a diagram that depicted how Campo was shooting coyotes and endangering Robles’s safety. See PUMF 18. Cervantes responded that he would tell Payne, who was Cervantes’s supervisor. See PUMF’s 14, 18.
For twelve days while working under Cervantes, Robles was not given a meal break. See PUMF 93.
On March 14, 2013, Robles was driving a tractor, and the tractor was laying down hose. See PUMF 108. Two employees were walking behind the tractor and placing the hose next to almond trees. See id. Robles had to regulate his speed so that the two workers behind him could safely perform their jobs. See PUMF 109. Robles told foreman Salvador Estrada that he (Robles) could not drive the tractor faster because the terrain was too ugly or uneven, and the hoses would fall off the trailer and injure the hose layers. See PUMF’s 35, 110,119. Estrada said that he did not care, Robles was nobody, and that Robles was to do what he was told or go home. See PUMF 111. Robles felt obligated to follow Estrada’s instructions and began to drive faster. See PUMF 113. As Robles drove faster, the two hose layers stumbled and fell. See PUMF 114. When Robles saw one of the hose layers fall and be dragged by a hose (because- he did not let go), he called Cervantes and complained that he was being forced to drive fast and at an unsafe speed. See PUMF’s 115, 117. As Robles was driving fast, the tractor’s seat became lose and got stuck forward; PUMF 121. Robles was unable to leave the tractor. Id. Another worker, who was not a mechanic and did not know how to fix a tractor seat, nevertheless tried to fix the set. See PUMF 122. Robles had stopped, but as he resumed driving, he had to loosen the seat-belt because the uneven terrain was causing him to be tossed around, which hurt his back. See PUMF 123. Robles’s knees hit the .steering wheel column of the tractor as he was driving, which injured his knees. See PUMF 124. The uneven terrain and loose tractor seat caused Robles’s knees to hit the steering column multiple times. See PUMF’s 35, 125. Plaintiff reported to another foreman (Alvaro Meza) that the seat had become loose, that he again banged himself, and that he was in a lot of pain. See PUMF 126. Robles parked the tractor about 30 minutes before the end of his shift to report his injury. PUMF 127.- Robles reported that he had been involved in a workplace accident in which he hit his knee while operating a tractor. See DUMF 14. Robles reported that he was in a lot of pain and said that if no report would be made for workers’ compensation, and if Agreserves would not send him to a doctor, then he wanted to go home. Seе PUMF 48..
On March 15, 2013, Robles reported his injury to Lee Brown, a farm operations manager, but Brown told Robles that he was lying and refused to create a workers’ compensation report. See PUMF 128. Robles later complained to .a 'Company Vice President about the'rough terrain, being forced to drive -at an unsafe speed, and being-injured from the tractor seat. See PUMF 129.
Also on March 15, 2013, Robles was taken to a doctor by foreman Jason Barnum in order to see if Robies had healed sufficiently to work. See PUMF’s 19, 135. Robles complained about Campo talking about religious stuff and saying that he was better than everyone else. See PUMF’s 20, 21, 80, 134. Robles' told Barnum that he had complained to Cervantes about Campo, but Cervantes had done nothing. See PÜMF’s 22, 81, 134. Robles also told Barnum that he was not being given breaks and had been forced to drive the tractor unsafely or go home. See PUMF’s 130, 131, 134. At the doctor’s office, Barnum contradicted the doctor in front of Robles, and asked the doctor to take Robles off work for a few days to rest. PUMF 136. Barnum told Robles that Robles would have to rest because Agre-serves did not have light duty work. PUMF 137. The doctor placed Robles off
After Robles complained about being injured on the tractor, Payne began to conduct an investigation over the workplace accident, and collected reports and statements from witnesses and employees. See DUMF 15.
On March 28, 2013, Payne met with Robles to investigate both the workplace accident and Robles’s reported misconduct towards other employees. See DUMF 18. During the meeting, Payne asked Robles questions about the accident and the reported misconduct. See DUMF 19. Robles admitted to not wearing his seat belt, but refused to answer Payne’s questions about workplace misconduct. See DUMF 20. Payne perceived Robles as rude and non-cooperative. DUMF 21; see also Payne De. ¶6. Because of Robles’s conduct during the meeting, Payne told Robles to go home and write a statement about the accident and a response to the misconduct allegations against him by his co-workers. See DUMF 22. As a result of Robles’s conduct, Payne declares that he made a preliminary decision to terminate Robles, but he wanted to review Robles’s written response before making a final decision. See DUMF 23.
Later on March 28, Robles returned to Agreserves and provided a written statement to Payne. DUMD 24. Payne noted that Robles’s written statement did not address Payne’s questions, and Robles had changed his story about wearing his seat-belt. See DUMF 25. Payne made the decision to terminate Robles. See PUMF 103. After reviewing Robles’s statement, Payne declares that he finalized his decision to terminate Robles for the following reasons: (1) Robles was insubordinate to Payne; (2) Robles refused to cooperate by answering questions about reports of his (Robles’s) offensive disruptive conduct towards other employees and supervisors; (3) Robles’s refusal to answer questions about the accident and Robles’s dishonesty about wearing a seatbelt; (4) Robles failed to follow supervisors’ instructions; and (5) Robles failed to follow safe workplace practices by not wearing a seatbelt. DUMF 31. Payne was the decisionmaker who terminated Robles’s employment. DUMF 26. At the time Payne terminated Robles, Payne had no information that other employees had uttered words about Robles’s national origin or religion, that Robles had complained about missed meal or rest periods, that Robles had complained about safety issues, or that Payne was Catholic. See DUMF’s
Robles was terminated on April 1, 2013. PUMF 139. That day, Robles met with Payne and Agreserves’s HR Manager, Walter Keenan. See DUMF 33. The meeting was in a confidential, closed door setting in one of Agreserves’s conference rooms so that Payne and Keenan could explain the decision to terminate Robles and process the termination. See id. The meeting lasted about 5 minutes. DUMF 35. Within a minute or two of the start of the meeting, Robles stated that he wanted to record the meeting, and Payne and Keenan denied Robles permission to record. See Payne Dec. ¶ 11; Robles Depo. 155:19-23. Robles continued to record the meeting anyway.
The recording begins with Robles telling Payne and Keegan about Campo. See Robles Depo. 159:14-160:8. Robles said that Campo told others about Robles’s “situation,” that Campo spoke to others to “put them against” Robles, that Campo almost killed Robles when Campo fired a rifle near him while trying to kill coyotes, that Robles made a report against Campo, and Payne and Keenan did not care about Robles’s life. See id. As Robles was saying this, Payne
Apparently after the recording stopped, Robles left the room. See PUMF 155. As Robles was walking in the lobby, Payne came in front of him. See PUMF 155. Robles raised his hands and told Payne to move back and not touch him; Payne moved out of the way. See id. As Robles was exiting the building, Payne blocked the exit by putting his back to the doors. See PUMF’s 156, 157. Payne later moved out of the way, and Robles left. See Robles Depo. 488:2-20.
At some point during the meeting in the conference room, Robles had slapped the check and paper work away from Payne, and Payne pushed Robles’s shoulders. See Payne Dec. ¶ 11; Robles Depo. 488:21-25.
During his employment ’at Agreserves, Robles heard Payne use the phrase “fucking Mexican” three to six times when referring to Robles. See PUMF 23.
After Campo’s behavior towards Robles, Robles was always biting his lip because he felt so much anxiety that he feared for his life. See DUMF 162. Robles felt that he Agreserves was a very stressful place to work. See id. After his termination, Robles felt more symptoms of anxiety and depression, and he wanted to be alone because he was remembering all the incidents that happened at Agreserves. See PUMF 163. Robles had nightmares, cried, felt stressed, pushed .his kids away, isolated himself, experienced panic attacks, had memory loss, could not relax quickly, and fought with his wife. See PUMF’s 164,165, 166. Robles believed his behavior was due to the illegal conduct and termination by Agreserves. See id. Robles was treated at a clinic for mental injuries that he believes were caused by Defendants’ conduct. See PUMF 167. Robles takes anti-depressants and medication to prevent anxiety attacks. See PUMF 168.
DEFENDANTS’ MOTIONS
I. PAYNE’S MOTION
A. 5th Cause of Action — Battery
Defendant’s Argument
Payne argues that Robles’s battery claim against him is based on conduct that occurred in the conference room during the April 1 termination meeting. Specifically, Payne allegedly pushed Robles. Payne argues that the battery claim is preempted by California’s Workers’ Compensation law because the minor interaction identified by Robles is a normal part of the employment relationship.
Plaintiff’s Opposition
Robles argues that the Labor Code permits an employee to bring a lawsuit if an employee’s injuries are caused by a willful assault. Physical aggression has consistently been exempted from the workers’ compensation exclusivity rule. Battery has no proper place in an employment relationship, so this claim is not preempted.
Legal Standard
California Labor Code § 3600(a) provides that, subject to- certain' exceptions, “workers’ compensation liability, ’in lieu of any other liability whatsoever’ will ■exist ’against an employer for any injury sustained by his or her employees arising out of and in the course of the employment.” Fermino v. Fedco, Inc.,
Discussion
The conduct at issue appears to be a single push or shove by Payne to Robles’s shoulders, while Payne was trying to terminate Robles. There is no description of the push/shove by Robles in his opposition, and Robles’s deposition is not particularly descriptive. Based on the evidence presented, the Court can only conclude that the push from Payne is a relatively minor “flare up” that is an inherent risk of the workplace. See Torres,
In opposition, Robles cites Labor Code § 3602(b). In relevant part, that law provides an exception to the workers’ compensation exclusivity rule for certain lawsuits. An employee may sue his employer where “the employee’s injury ... is proximately caused by a willful physical assault by the employer.” Cal. Lab. Code § 3602(b)(1). Robles reliance on § 3602(b)(1) is misplaced. By its express terms, § 3602(b)(1) only applies when the claim is one by an employee against the employer. See Cal. Labor Code § 3602(b)(1). Liability under § 3602(b)(1) “must be based on positive misconduct by the employer and not on a theory of vicarious liability such as that which forms the basis of the doctrine of respondeat superi- or.” Fretland v. County of Humboldt,
To the extent that Robles meant to cite § 3602(a)(1) (which permits suits against a fellow employee for willful aggression), for conduct to fit under § 3602(a)(1), the intent to injure the plaintiff is generally required. See Torres,
Summary judgment on this claim is appropriate.
B. 15th Cause of Action — False Imprisonment
Defendant’s Argument
Payne argues that the elements of false imprisonment cannot be met. First, the conference room door locked from the inside in order to keep people on the outside from entering, so people on the inside could not be locked in. Robles was also told that he could leave the conference room, and he did. The recording contradicts any arguable false imprisonment. Second, there was a lawful privilege for asking Robles into a closed door meeting because he was being terminated. Informing an employee of a termination is a normal part of the employment relationship. Third, there is no evidence that the “confinement” was non-consensual. Robles surely did not want to be there because he was being terminated, but there is over 3 minutes of audio-recording where everyone is talking about Robles’s paycheck and termination. Robles voluntarily entered the room to talk to Payne and Keenan. Fourth, there was no appreciable length of time that Robles was falsely imprisoned. Any imprisonment lasted less than 5 minutes, and the audio recording was about 3 minutes. At best, Robles’s desire to not be in the room where he was being terminated was a fleeting emotion.
Plaintiffs Opposition
Robles argues that PUMF’s 145 to 158 demonstrate that Payne falsely imprisoned him during the April 1 termination meeting in the conference room. These PUMF’s in part indicate that Robles felt that he could not get out.of the room, he told Payne and Keegan that they prevented him from getting out of the door, he tried to exit the room twice, the door was locked, and Payne had physically blocked the door. Robles argues that the factual contentions in PUMF’s 145 to 158 create questions of fact that must be resolved by the jury.
Legal Standards
The elements of a claim for false imprisonment are: “(1) the noncon-sensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.” Young v. County of Los Angeles,
Discussion
Payne makes five arguments in favor of summary judgment on this claim. However, the Court is not convinced that summary judgment is justified on the basis of any of these arguments.
First, there appears to.be no dispute that the conference room door locked
Second, the Court concedés that there is nothing unlawful about requiring an employee to attend a closed door meeting, especially if there is something sensitive occurring like a termination. Nevertheless, the apparent confinement occurs right around the time that Robles understands that he is being terminated. Cf. Robles Depo. 167:10-22 with Robles Depo. 160:14-161:22. It is clear that Payne wanted to give Robles final paperwork and a paycheck, but Robles was not willing to accept these after the termination. With the termination/Robles was no longer an employee, and thus, would not be required to follow any of Agreserves administrative processes. Payne cites no authority that would allow him to block Robles frond leaving the room. Without citation to authority that recognizes such a privilege, the Court cannot accept Payne’s argument.
Third, the recording is of limited value. The recording is audio only, and does not reflect body language or body positioning. It is clearly possible to falsely imprison someone without saying a word. The portion of Robles’s deposition that states that Payne stood in front of the door and blocked Robles from leaving would not necessarily be reflected in the recording. Further, the recording has not been produced, so the Court cannot hear the tone of voice being used by Robles, Payne, or Keenan, nor can the Court hear background noises that may be relevant. Finally, the Court agrees that one reasonable interpretation of the recording is that Robles and Payne are spending a lot of time talking about either Campo or paperwork, and only a small part talking about Robles leaving. This would tend to indicate consent for most of the conversation and an inappreciable period of confinement. However, Robles at several points in the recording makes reference to being locked in, not being allowed to leave, and Payne being in his way. When combined with Robles’s deposition, the recording can also be interpreted as 'reflecting a non-consensual, appreciable confinement. Because the recording can reasonably be interpreted in several ways, including one that is favorable to Robles, the recording does not dictate granting summary judgment. See Fresno Motors,
Fourth, there does not appear to be any case law that sets a floor as to what constitutes an appreciable period of time. In Fermino, the California Supreme Court cited a case with approval that a period a? short as 15 minutes was sufficient. See Fermino,
Summary judgment on this claim will be denied.
C. 16th Cause of Action — Intentional Infliction of Emotional Distress (“IIED”)
Defendant’s Argument
Payne argues inter alia that there is a failure to meet the required elements of an IIED claim. The evidence does no show that his conduct was sufficiently “outrageous.” Robles’s claim is based on a meeting that lasted less than 5 minutes, and in which Payne and Robles were discussing the termination and paperwork. Furthermore, there is a failure of intent because Payne did not intend to cause Robles severe emotional distress.
Plaintiff’s Opposition
Robles argues that Payne’s conduct was an abuse of his position over Robles and was a violation of the law against false imprisonment. Payne’s conduct caused emotional distress and caused Robles to fear for his safety. A reasonable trier of fact could look at the evidence .and conclude that Payne’s conduct was sufficiently outrageous.
Legal Standards
The elements of the tort of IIED are: (1) extreme and outrageous conduct by the defendant; (2) the defendant’s intention of causing, or reckless disregard of the probability of causing, emotional distress; (3) the plaintiffs suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Hughes v. Pair,
Discussion
After reviewing the evidence, two elements of IIED have not been met. First, there is insufficient evidence of “extreme and outrageous” behavior. Robles’s claim is based on the events at the termination meeting, and in particular his contention that he was falsely imprisoned. However, the meeting lasted 5 minutes, and of those 5 minutes, the last 3 appear to have been recorded. The 3 minutes of recording reflect an agitated Robles who did not want to be terminated, who wanted some kind of paper work related to the termination, and who wanted to complain about how he had been treated up to that point by Agreserves employees. See Robles Depo. 159:13-163:10. There is no evidence that Payne said anything insulting or threatening during the meeting. The recording reflects that Robles requested to leave, and was told that he could do so. However, shortly after saying he wanted to leave, Robles continued to talk and Payne continued to attempt to give Robles paperwork. At most, Payne was blocking the door for between 2 and 3 minutes during a conversation that was dominated by Robles. This is not “extreme and outrageous” conduct by Payne that exceeds all bounds tolerated in a civilized society. See Hughes,
Robles relies on Robinson v. Hewlett-Packard Corp.,
Here, there has been no showing that Agarwal’s criteria have been met. First, Payne’s conduct in temporarily blocking the door did not harm Robles’s interests, appears to have occurred after Payne lost his position of authority over Robles, and was not particularly abusive in light of the purpose of the meeting and the nature of what was actually said (as discussed above). Second, there is no evidence that Payne knew that blocking the door would likely cause illness through mental distress. Third, there is no evidence that Payne knew Robles was particularly susceptible to mental distress. In short, Robles has done little more than cite Ro bin-son without applying it. Robles has not
Summary judgment in favor of Payne on this claim is appropriate.
II. CAMPO’s MOTION
A. 1st & 2nd Causes of Action — Title VII — National Origin and Religion Harassment, Discrimination, & Retaliation
Parties ’ Arguments
Campo argues that, because he is an individual, he cannot be held liable under Title VII for any harassment, discrimination, or retaliation. Robles does not respond to this argument.
Discussion
Campo is correct. The Ninth Circuit has clearly held that individual supervisors and coworkers cannot be liable under -Title VII. See Craig v. M & O Agencies, Inc.,
B. 3rd Cause of Action — FEHA & California Constitution — National Origin Harassment
Defendant’s Argument
Campo argues that he did not use the term “stupid” Mexican, and the “rifle incident” had nothing to do with Robles’s national origin. At best, the incidents identified by Robles were sporadic and were not severe or pervasive. Furthermore, Art. I, § 8 of the California Constitution does not support isolated claims for harassment because harassment by itself does not disqualify a person from entering or pursuing employment.
Plaintiff’s Opposition
Robles argues that he was subject to severe and pervasive national origin harassment. From the beginning to the end of February 2013, Campo called Robles a “stupid Mexican” almost every day and said that he was “above all Mexicans” almost every day. Also, Campo fired his rifle in the direction of Robles and other Mexican workers. Robles complained to Cervantes and Barnum about Campo saying “stupid Mexican,” but nothing was done. The daily statements by Campo create a triable issue of fact regarding national origin harassment.
Discussion
1. California Constitution Art. I, § 8
A direct claim under Art. I, § 8 “may only be brought where a plaintiff has been denied entrance into a profession or particular employment or terminated from the same.” Strother v. Southern Cal. Permanente Med. Grp.,
2. FEHA
Robles’s national origin harassment claim is based on three actions by Cam-po — almost daily calling Robles a “stupid Mexican,” almost daily saying that he was “above all Mexicans,” and the “rifle incident.”
As to the rifle incident, the Court has addressed this matter in depth under the assault cause of action, infra. In short, the evidence shows that Campo was shooting at coyotes, not at Robles or other Mexican workers, and Robles has provided no evidence that he saw Campo shooting in his direction or that undermines the assertion that Campo was shooting at coyotes only. See Campo Dec. ¶5; Robles Depo. 115:1-20, The evidence does not indicate that the “rifle incident” had anything to do with Robles’s national origin. Thus, it does not support a harassment claim.
With respeet to being called a “stupid Mexican” on an almost daily basis, this assertion is based on Robles’s declaration. Robles expressly declared that “Cam-po said to me ’stupid Mexican’ almost every day.” Robles Dec. ¶ 7. However, at Robles’s deposition, Robles testified in relevant part:
Q: When did you hear Jay Payne use the words “stupid Mexican”?
A: When we’re working in the spray and I make a mistake or they do something wrong the first thing they say, “this stupid Mexican,” or things like that.
Q: You used the word “they.” Is there more than one person that said this? Because you only identified Jay Payne.
A: Jay, Jay and all of them, including Lee, they have that habit of mistreating people and telling them “stupid Mexican.”
Q: So your testimony is Jay Payne and Lee had the custom of calling employees “stupid Mexicans,” is that what you’re saying?
A: They have that habit of saying that word. They mistreat you, and that’s why I feel discriminated against and offended besides.
Q: My question was — I’m sorry, the words “stupid Mexican,” you know, when was it said and who said it. Right now you said Jay Payne said and Lee said, right?
A: Yes.
Q: Anybody else say that?
A: That I’ve heard it’s just them.
Robles Depo. 200:1-201:1 (emphasis added).
“The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Yeager v. Bowlin,
With respect to Campo saying almost daily that he was “above all Mexicans,” this is based on Paragraph 8 of Robles’s declaration. Defendants object in part that the declaration is misleading in light of the allegations in the Complaint and verified interrogatory responses.
The “sham declaration” rule applies to declarations that contradict not only prior deposition testimony,' but also prior sworn interrogatory responses. See School Dist. No. 1 J, Multnomah Cnty. v. ACandS, Inc.,
In sum, because the evidence does not show sufficiently severe or pervasive harassing conduct because of national origin, summary judgment on this claim is appropriate.
C. 4th Cause of Action — FEHA & California Constitution — Religion Harassment
Defendant’s Argument
Campo argues that the religious harassment claim fails because his conduct was neither severe nor pervasive. Harassment cannot be occasional, sporadic or trivial. The religious comments identified by Robles are off-hand comments and isolated incidents of a generalized nature. The conduct at issue was at most merely offensive. A common sense view of the totality of the circumstances does not reveal actionable harassment.
Plaintiff’s Opposition
Robles argues that he was severely and pervasively harassed by Campo because of religion. Campo was a supervisor and would regularly make statements about the superiority of his religion and the infe
Legal Standard
FEHA prohibits harassment of an employee. Cal. Gov’t Code § 12940(j). “[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” Roby v. McKesson Corp.,
Discussion
1. California Constitution
Robles did not defend this claim. As discussed above, Campo did not terminate Robles or deny him employment. Therefore, there is no viable Art. I, § 8 claim against Campo. Summary judgment is appropriate. See Strother,
2. FEHA
The Court does not agree- that Campo’s conduct was insufficiently sеvere or pervasive. First, Campo was more than a co-worker, he was Robles foreman and thus, a type of supervisor who oversaw Robles’s- activities. --See PUMF’s 2, 3, 5; Campo -Dec.- ,¶ 2. Campo’s conduct is more impactful, because of his status as a Robles’s foreman. Cf. Roby,
■ Considering the nature and frequency of the comments, and the fact that Campo was Robles’s foreman, a reasonable jury could find that Campo’s conduct was sufficiently pervasive to create a hostile work environment based on religion.
Defendant’s Argument
Campo argues that Robles’s claims for battery and assault are preempted by California’s workers’ compensation law. The alleged battery is based on the “car incident” when Campo gave Robles a ride between worksites and allegedly hit Robles’s hand. This was in connection with a discussion about meal and rest breaks. The car incident was an interaction between employees during work hours, and was a normal part of the employment relationship. Therefore, the battery claim is preempted. With respect to the assault claim, this is based on the “rifle incident.” This incident' involved an inherent risk with a farmland workplace, as vermin and wild animals are typical perils. There is no dispute that Campo was using his rifle to fend off coyotes from the workplace. Because this conduct was a normal part of an agricultural workplace, it is- preempted by the workers’ compensation laws.
Plaintiff’s Opposition
Robles argues ’ that he was battered when Campo hit him several times in the arm/hand, while Campo was driving a truck. As Robles complained about not being given meal breaks, Campo punched the seat out of anger and while doing so, hit Robles’s- hand a few times. Robles could not get out of the car and did not consent to being hit. Robles argues he was assaulted whén Campo was shooting at coyotes when Robles and other workers were in the same direction as the coyotes. That coyotes were in the area does not justify Robles being placed in imminent apprehension of being shot. Further, Robles was also placed in apprehension of a future battery when he was in the truck with Campo, after Campo was’ punching the seat. These batteries and assaults exceed the normal business relationship. The Legislature in 1982 expressly provided that the workers’ compensation exclusivity does not apply when an employee’s injuries are caused by a willful physical assault. Because Campo’s conduct was not a normal part of the business relationship, the workers’ compensation laws do not apply.
Legal Standards
1. Battery
A civil battery is “an offensive and intentional touching without the victim’s ' consent.” Kaplan v. Mamelak,
2. Assault
A civil assault is a “demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present.” Steel v. City of San Diego,
Discussion
1. Battery
It is not entirely clear that a battery occurred in this case. Robles contends that he was complaining to Campo about missing meal periods, which caused Campo to become upset. See Robles Depo. 123:9-23. Campo “got crazy” and started hitting the middle of the seat. Id. at 123:20-23. Robles was leaning on his hand, and his hand was on/near the middle of the seat. See id. at 123:23. Robles’s hand was then struck 2 or 3 times by Campo.
Nevertheless, assuming that Robles was not accidently struck, Campo’s conduct is covered by the workers’ compensation exclusivity law. Campo and Robles were “on the clock” and Campo was driving Robles to a different worksite. Campo was Robles’s foreman, and Robles was complaining about Campo and others causing Robles to miss meal periods. Complaining to a foreman about missing meal periods, especially if related to the foreman’s orders, is undeniably a natural part of a working environment. Campo responded in part by hitting the middle of the seat and striking Robles’s hand. The two or three blows to the hand appear to be the type of “flare ups” that are an inherent risk in the work environment. See Torres,
Although “willful and unprovoked physical aggression” is an exception to workers’ compensation exclusivity, see Cal. Lab. Code § 3601(a)(1), the evidence does not reflect the requisite intent to injure. See Jones,
2. Assault
With respect to the rifle incident, Robles did not see Campo fire the rifle,
Robles relies on his declaration, in which he states that Campo shot in the direction of the farm workers. See Robles Dec. ¶ 9. However, as described above, Robles did not see Campo fire the rifle, there is no indication that he saw where any shots landed, and Robles only heard the shots and other workers told him that Campo was shooting. See Robles Depo. 115:7-20. If Robles did not see Campo actually shooting or where the shots landed, but relied on other employees to explain the situation, then Robles did not actually know in which direction Campo was firing. Furthermore, even if the workers were in the direction of the coyotes, that alone does not show that Campo had the intent to place Robles in fear of a harmful touching. There is no dispute that coyotes and other vermin pose a hazard to the farm and to farm workers, see id. аt 116:16-117:15; Campo Dec. ¶ 5. The known danger posed by coyotes, combined with the fact that the coyotes were running away from Robles, see Robles Depo. 115:17-20, support Campo’s claim that he was only aiming and shooting at the coyotes. That Robles and the other workers were all Mexican does nothing to cast doubt on Campo’s declaration. Cf. McDonald v. Coldwell Banker,
Alternatively, Robles does not dispute that coyotes and other vermin pose a danger to farmland and farm workers. See Robles Depo. 116:16-117:15. Efforts to eradicate or minimize those dangers would appear to be something that an agriculture employer would do. See id. at 117:7-15. Consequently, agriculture employees could expect to be around not only coyotes and vermin, but also the efforts to control or remove those animals. Campo was trying to drive away the coyotes away when he fired the shots. See Campo ¶5. Without more from Robles, the evidence presented suggests that Campo’s rifle fire was within the scope of his employment because it was either a risk inherent in that workplace or was broadly incidental to Agre-serves’s enterprise. Torres,
E.11th Cause of Action — Labor Code § 558
Parties ’ Arguments
Campo argues that summary judgment is appropriate because Labor Code § 558 provides for civil penalties, but does not create a private cause of action. Robles does not defend this claim.
Discussion
Labor Code §■ 558 provides for civil penalties against any employer or person acting on behalf of an employer who violates various provisions of the Labor Code. See Cal. Lab; Code § 558. Federal courts in California have held that there is no private cause .of action created by Labor Code § 558,
G.15th Cause of Action — False Imprisonment
Parties ’ Arguments
Campo argues that there is a one year statute of limitations for false imprisonment. Because any false imprisonment occurred on February 11, 2013, and the complaint was not filed until February 27, 2014, Robles’s claim is time barred. Robles does hot respond to this argument.
Discussion'
Campo is correct. There is a one year statute of limitations for false imprisonment claims. See Cal. Code Civ. P. § 340(c); Thompson v. City of Shasta Lake,
Defendant’s Argument
Campo argues Robles’s IIED claim is based on the battery, assault, false imprisonment, and harassment claims. Because the battery and assault claims are barred by workers’ compensation exclusivity, so too is the dependent IIED claim. Robles’s false imprisonment claim is time barred, and, in any event, not being allowed to exit the car until it arrived at the next worksite is an example of a normal risk stemming from the employment relationship. Therefore, the IIED claim based on false imprisonment is barred by workers’ compensation exclusivity. As for harassment, Robles has no claim because Campo did not engage in either severe or pervasive harassment. Further, as an individual, Campo cannot have a “discriminatory practice” and cannot be held liable individually liable for FEHA discrimination. Because Campo cannot have a discriminatory practice, all other alleged workplace ■ misconduct by him is covered by workers’ compensation. For the same reasons that discrimination and retaliation claims must be brought against an employer only, IIED claims should not be maintained against individuals based on workplace misconduct.
Campo also argues Robles cannot meet three essential elements of an IIED claim. First, none of the acts relied upon by Robles were sufficiently outrageous to support an IIED claim. At worst Campo’s statements were offensive, or insensitive. Second, Campo argues that there is no credible evidence that Robles suffered severe emotional distress. Following an agreed upon court-ordered exam, expert Dr. Kania opined that Robles did not sustain severe emotional distress. Finally, there is no evidence that Campo intended to cause Robles emotional harm.
Plaintiff’s Opposition
Robles argues that summary judgment should not be granted. With respect' to workers’ compensation, exclusivity does not apply when injuries are caused by a willful physical assault, such as the conduct by Campo. Furthermore, assault, battery, harassment, and IIED based thеreon have no proper places in the normal employment relationship.
With respect to the elements of IIED, first, Campo’s conduct was outrageous. Campo’s national origin and religion harassment violated public policy, and a jury could find that Campo’s assault and battery were outrageous. Furthermore, a reasonable jury could find Campo abused his position over Robles, knew that Robles was susceptible to mental distress injuries, or acted intentionally with the knowledge that emotional distress would likely result. Second, there is sufficient evidence to show severe emotional distress was experienced. After Campo’s harassment, Robles suffered constant nightmares, lethargy, and muscle pain. Campo was always biting his lip, and felt anxiety and panic. After his termination. Campo was remembering all of his experiences at Agreserves and began isolating himself. He was treated professionally for mental injuries and is on anti-depressants to help prevent anxiety attacks.
Discussion
The Court, accepts that Robles’s IIED claim is. tethered to his claims for battery, assault, false imprisonment, national origin harassment, and religion harassment. The Court will address each basis for an IIED claim separately.
L IIED Based On Assault, Battery, & National Origin Harassment
The Court has found that there was a failure of essential elements with respect to assault and national origin harassment,
2. IIED Based On False Imprisonment Robles contends that he was falsely imprisoned during the “car incident.” While driving between worksites, Robles requested that Campo stop the vehicle and let him out, but Campo refused until they reached the desired worksite. See DUMF 38; PUMF 88. Campo is not liable for false imprisonment because of the one-year statute of limitations. However, the statute of limitations for an IIED claim is two years. See Cal. Code Civ. P. § 335.1; Pugliese v. Superior Ct.,
Nevertheless, Campo’s act of refusing to stop the car until they reached the worksite is not sufficiently outrageous as a matter of law. The car ride lasted an additional 15 minutes from the time that Campo refused to stop. See DUMF 38; PUMF 88. Robles appears to have made it to the worksite, and there is no indication that he was somehow unable to keep working as a result of the car ride. Having to endure a 15 minute car ride to the next worksite is not so “extreme and outrageous” that it “exceeded] all bounds of that usually tolerated in a civilized cоmmunity.” Hughes,
3. IIED Based on Religion Harassment
Campo makes five- arguments against Robles’s IIED claim. First, Campo argues that his conduct was not “outrar geous.” However, as discussed above, a reasonable jury could find in favor of Robles on his claim of religion harassment. FEHA harassment “in the work place is outrageous conduct as it exceeds all bounds of decency usually tolerated by a decent society;” thus, “harassment will constitute the outrageous behavior element required of a cause of action for [IIED].” Murray v. Oceanside Unif. Sch. Dist.,
Third, relying on Jones v. The Lodge at Torrey Pines Partnership,
Fourth, relying on a declaration that states he did not intend to cause Robles emotion distress, see Campo Dec. ¶7, Campo аrgues that he did not act with the intent necessary for an IIED claim. A reasonable trier of fact could believe Cam-po. However, there is sufficient circumstantial evidence that Campo acted with the necessary intent. As discussed above, Campo’s comments demeaned non-Mormon religions and non-Mormons alike. Campo’s comments convey the message that he is superior because of his religion and that non-Mormons like Robles are inferior. The approximately 60 times that Campo made such comments over a period of 15 days indicate that Campo wanted to be sure that others, like Robles, got the message about Campo’s personal and religious superiority. Given this volume, it is perfectly reasonable to infer that Campo intended to adversely affect others. Therefore, a reasonable trier of fact could view the harassment and comments attributed to Campo and conclude that, at a mini
Finally, Campo argues that there is insufficient evidence of severe emotional distress. Severe emotional distress may consist of shock, horror, nausea, fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, or worry, but the condition must be severe and cannot be trivial or transient. See Bikkina v. Mahadevan,
In sum, Robles has adduced sufficient evidence to support a claim of IIED based on religion harassment. None of Campo’s arguments against that claim are availing. Therefore, ’ summary judgment on the IIED claim based on religion harassment is inappropriate.
III. AGRESERVES’S MOTION
A. 1st Cause of Action — Title VII— National Origin Harassment, Discrimination, & Retaliation
Defendant’s Argument
Agreserves argues that Roles cannot make out a prima fade case of discrimination because there is no evidence that non-Mexicans were treated more favorably, nor is there evidence that Robles was terminated because of his Mexican national origin. However, even if Robles can make a prima facie case, Robles was terminated for legitimate non-discriminatory reasons. Payne conducted an independent investigation. Based on this investigation and his own observations of Robles, Payne decided to terminate Robles for insubordination, dishonesty, refusal to cooperate, and failure to follow safety practices. Moreover, Payne did not know that Robles was Mexican. Prior to the termination, Payne had no knowledge of complaints by Robles or harassing conduct against Robles. There is no evidence that the business reasons for terminating Robles were pretext.
Plaintiff’s Opposition
Robles argues that summary judgment is improper. Campo was Robles’s supervi
Legal Standards
1. Discrimination
Title VII prohibits an employer from discriminating against an employee based on inter alia religion and national origin. See 42 U.S.C. § 2000e-2(a); Alaska v. EEOC,
2. Retaliation
Title VII prohibits, among other things, retaliation against an employee for making a charge or. otherwise participating in a Title VII proceeding. Nilsson v. City of Mesa,
Discussion
1. Harassment
This claim is based on the actions of Campo. The standards for harassment under FEHA and Title VII are essentially the same. See Davis v. Cal. Dept. of Corr. & Rehab.,
2. Discrimination
Agreserves relies on the McDon-nel Douglas burden shifting framework in arguing for summary judgment. However, in this case, McDonnel Douglas is not necessary as Robles has direct evidence of discriminatory animus. See Metoyer,
Agreserves has pointed to non-discriminatory reasons for termination, an independent investigation by Payne, and the fact that Payne hired Robles. There is no doubt that the proffered reasons for the termination are non-discriminatory and if true, would not violate Title VII. Further, the Ninth Circuit has recognized that: (1) there is a strong inference against discrimination when, within a short period of time, the actor who terminated an employee is the same actor who hired the employee, see Schechner v. KPIX-TV & CBS Broad., Inc.,
Summary judgment on this claim is improper. See Fresno Motors,
3. Retaliation
Robles identifies two protected activities. First, through PUMF 25, Robles contends that he complained to Payne during the March 28 meeting about Payne using the term “fucking Mexican.” See PUMF 25. PUMF 25 is based on deposition testimony from Robles. However, as Agre-serves correctly points out, none of the cited deposition testimony shows that Robles made a complaint to Payne about Payne saying “fucking Mexican,” or any other derogatory comment about Mexicans. Therefore, PUMF 25 is not established, and Robles has not shown that he engaged in “protected activity” by complaining about Payne’s language towards Mexicans. See Westendorf,
Second, Robles contends that he complained to Cervantes about racial comments made by Campo, and Cervantes informed Payne. However, this argument is based on Paragraphs 12, 13 and 14 of Robles’s declaration. As discussed above, the Court has stricken Paragraphs 12, 13 and 14 because they irreconcilably contradict Robles’s deposition, wherein Robles testified that Payne and “Lee” were the only people Robles heard use the phrase “stupid Mexican.” Without Paragraphs 12, 13, and 14, there is no evidence that Robles opposed an employment practice that violates Title VII. See Westendorf,
Because Robles has not demonstrated that he engaged in protected activity, summary judgment on this claim is appropriate.
B. 2nd Cause of Action — Title VII— Religion Harassment, Discrimination, & Retaliation
Defendant’s Argument
Agreserves argues that Robles cannot make out a prima facie case of discrimination because there is no evidence that non-Mexicans were treated more favorably, nor is there evidence that Robles was terminated because of his Mexican national origin. However, even if Robles can make a prima facie case, Robles was terminated for legitimate non-discriminatory reasons. Payne conducted an independent investigation. Based on this investigation and his own observations of Robles, Payne decided to terminate Robles for insubordination, dishonesty, refusal to cooperate, and failure to follow safety practices. Moreover, Payne did not know that Robles was Mexican. Prior to the termination, Payne had no knowledge of any complaints by Robles or any allegedly harassing conduct against
Plaintiff’s Opposition
Robles argues that summary judgment is inappropriate. Campo was Robles’s supervisor and made offensive remarks about non-Mormons and his own superiority as a-Mormon on an almost daily basis. Payne made the decision to terminate Robles, and Payne considered and was influence by a negative report by Campo. That is, Payne acted as Campo’s “cat’s paw.” Robles complained Furthermore, and Payne said “fucking Mexicans” three times when referring to Robles, and refused to do^ anything when Cervantes reported that Campo was saying “stupid Mexican,” which constitutes ratification. This evidence shows racial animus by Payne and Campo, and that animus is attributable to Agreserves.
Discussion
1. Harassment
This cause of action is based on the actions of Campo. The standards for harassment under FEHA and Title VII are essentially the same. See Davis,
'a. Acts of a Supervisor
Canipo was a foreman, and as a foreman he “oversaw” field workers. See Campo Dec. ¶¶ 2, 3. The Court takes this to mean that Campo would ensure that workers were performing their job assignments property or generally directed a worker’s daily job activities. See PUMF’s 2, 3, 5. A “supervisor” for purposes of Title VII entails more than someone who generally directs daily work activities or ensures proper performance. A “supervisor” under Title VII is one who has been empowered by the employer to “take tangible employment actions against the victim, i.e. to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Vance,
b. Acts of a Co-Worker
An employer may be liable for harassment by a co-worker if the employer “knows or should know of the harassment but fails to take steps reasonably calculated to end the harassment.” Dawson v. Entek, Int’l,
Here, Robles did not complain to anyone about Campo’s conduct, while he worked under Campo, and there is no evidence that Agreserves should have known about Campo’s conduct during that time. However, after Robles left Campo’s work crew at the end of February 2013, Robles testified that he complained to Barnum that “Cam-po talked about religious stuff that [he] did not agree with.” Robles Depo. 360:18-24; see also PUMF 80. Robles also told Barnum that he had-complained to Cervantes about Campo, but Cervantes did nothing. See Robles Depo. 362:16-17, 363:16-19; see also PUMF 81. Where exactly Cervantes or Barnum fit within Agreserves’s hierarchy is unknown. However, they are both foremen, and they are both above Robles. For purposes of summary judgment, and in the absence of anything to the contrary from Agreserves, the Court will assume that reporting harassing conduct to a foreman is an appropriate method of putting Agreserves on notice of harassment. Cf. Nichols,
In terms of what Robles told Barnum and Cervantes, Robles’s deposition suggests- that he told Cervantes similar things as those he told to Barnum, but there is no- express testimony about what Robles actually’ said to Cervantes. As for what was said to Barnum, the exact language used by Robles in his deposition would not be sufficient to put Agreserves on notice of any harassment. The exact language simply indicates that Campo talked about “religious stuff’ and Robles disagreed with Campo. See PUMF 80. There is nothing in' Title VII that prohibits co-workers (or supervisors) from discussing religious matters in the workplace or making religious comments in general, even if others may disapprove or be offended. See Oncale v. Sundowner Offshore Servs.,
When Agreserves was on notice of harassment, it had an obligation to act in order to end and deter further harassment. See Nichols,
2. Discrimination
Payne declares that he was unaware that Robles was Catholic. See Payne Dec. ¶ 10. Furthermore, there is no evidence that Payne made any religion comments that were similar to those made by Campo. Robles has presented no evidence that would indicate an anti-Catholic or anti-non-Mormon animus by Payne.
In limited circumstances, “Title VII may still be violated where the ultimate decisionmaker, lacking individual discriminatory intent, takes an adverse employment action in reliance on factors affected by another decisionmaker’s discriminatory animus.” Galdamez v. Potter,
Here, Campo submitted a written statement to Agreserves, See Guleser Dec. Ex. 19. The statement described the time in which he supervised Robles. See id. In part, Campo explained: (1) Robles was a habitual smoker; (2) Robles asked to leave early on one occasion because he did not get a lunch period earlier in the week; (3) Robles discussed bringing past lawsuits, which made members of Campo’s crew nervous; (4) Robles was slow replanting trees; (5) Robles previously worked under Campo and had abandoned that job; (6) he warned Cervantes that Cervantes would have his hands full with Robles; and (7) Robles is a morale killer and makes everyone around him uneasy. See id. Campo’s statement is clearly critical of Robles. Furthermore, as discussed above, Campo made four different statements to Robles on numerous occasions that Campo and his religion were superior to Robles and his religion. See PUMF’s 74, 75, 76, 77. Cam-po’s comments to Robles clearly reflect a bias against Robles because Robles was not Mormon. Considering Campo’s comments to Robles and the content of Cam-po’s written statement, it can be reasonably inferred that Campo intended his statement to cause Agreserves to take an adverse action against Robles. Finally, Payne testified that he could not recall who asked Campo to write the statement, and he could not recall when he first reviewed it. See Payne Depo. 139:19-24. However, Payne reviewed Campo’s statement sometime before the termination: See id. at -139:25-140:3. Robles’s counsel asked Payne: “So the question is did you base your decision to terminate Mr. Robles on this statement? Did you base your decision [to] terminate partially on this statement?” Id. at 140:4-7. Payne responded, “Yes.” Id. at 140:8. The Court takes this answer to mean that Payne partially based the decision to terminate on Campo’s statement. Given the content of Campo’s statement, the religion bias reflected in Campo’s statements to Robles, and Payne partially basing the decision to terminate Robles on Campo’s statement, there is ah indication that Payne was Campo’s “cat’s paw.” See Staub,
However, there is a significant issue about whether Campo’s written statement was a “proximate cause” of the termination. First, there is no indication of what facts Payne considered and accepted in Campo’s statеment, and there is no assertion by Robles that anything that Campo said was false. Second, Robles does' not address Campo’s statement or challenge any of the assertions made therein. Third, and of critical importance, Payne outlined his reasons for terminating Robles in a memo to his supervisor, Eric Miller, and the.memo does not include any mention of Campo or the assertions in Campo’s written statement. See Payne Dec. Ex. 3.
Before an employee is terminated, at Agreserves, the decisionmaker must secure the agreement of another senior manager. See Payne Dec. ¶ 10. In the memo to Miller, Payne explained that on March 14, 2013, Robles had various confrontations with co-workers and supervisors that were very concerning. Payne Dec. Ex. 3. Payne then listed several bullet-points: (1) Crew
Despite every reasonable effort to have a conversation with [Robles] about his inappropriate behavior, I have not received an explanation for the disrespectful, out-of-control attitude he has taken since 3/14/13. He has been insubordinate in providing information, wearing his seatbelt, following assignment of his supervisors, and over-all belligerent and vulgar in his conduct with crew leaders, foremen, management, and human resource managers. He has willfully disregarded safety rules, and then lied about it. For these reasons, I recommend terminating [Robles] effective immediately.
Id.
Payne’s memo to Miller is consistent with his deposition testimony and his declaration submitted in support of this motion. Payne testified at his deposition that Robles was terminated for insubordination, acting in a threatening manner to Payne and others, failing to comply with safety rules, failing to cooperate with the safety investigation, vulgar and offensive language used towards other Agreserves em
In no place (be it the memo to Miller, his declaration, or his deposition)
Given the uncertainty on when Campo’s statement was reviewed, Robles’s failure to challenge any assertion within Campo’s statement, the absence of any indication that facts from Camрo’s memo were actually relied upon, and the contents of Payne’s memo to Miller, the Court concludes that Campo’s statement was not a proximate cause of Robles’s termination. See Staub,
3. Retaliation
Robles has failed to demonstrate a sufficient causal link between protected ac-. tivity and adverse action. Robles contends that he complained to Cervantes and Bar-hum about Campo saying “religious stuff’ that he disagreed with. Consistent with its discussion about religion harassment, the Court will assume that Robles’s complaints about Campo talking about “religious stuff’ constitutes “protected activity,” See Villiarimo v. Aloha Island Air,
C. 5th & 6th Causes of Action — Battery and Assault
Robles alleges that Agreserves is vicariously liable for the battery and assault committed by Campo. That is, the battery committed by Campo against Robles during the “car incident” and the assault committed by Campo against Robles during the “rifle incident.” As discussed above, however, these causes of action against Campo fail due to application of workers’ compensation exclusivity, the failure of a necessary element, or both. When claims against the agent/employee fail, the principal/employer cannot be vicariously liable. See Lathrop v. Healthcare Partners Med. Grp.,
D. 7th Cause of Action — California Labor Code § 226.7 & § 512
Defendant’s Argument
Agreserves argues that its only obligation is to provide a meal break to its employees, it is not required to ensure that the employeе takes a meal break. Agre-serves has policies that provide a 20 minute rest period in the morning, a 30 minute lunch period before the end of the fifth hour, and a 10 minute rest period after lunch. Robles was aware of these policies through orientation, and admitted in his deposition that he-received rest periods. Robles never complained or mentioned that he was not getting meal or rest breaks to either Human Resources or the Farm Production Manager. On one occasion, Robles voluntarily chose to skip a meal, but there is no requirement that an employer force an employee to take a meal break. Because there are policies in place that provide for a meal period, there is no violation of law.
Plaintiff’s Opposition
Robles argues that summary judgment is not proper. While he worked under the direction and supervision of Campo and Cervantes, Robles argues that he was not given the opportunity to take a meal break 22 times. Robles argues that his pay stubs do not reflect one hour of pay for the meal periods he was prevented from taking.
Legal Standards
California law “obligates employers to afford their nonexempt employees meal periods and rest periods during the workday.” Brinker Rest. Corp. v. Superior Ct.,
Discussion
With respect to missed rest periods, Robles does not dispute that he took his 20 minute mid-morning breaks, per California law. • See DUMF 11. Moreover, Robles’s opposition does not address missed rest periods in any way. Given Robles’s deposition and his failure to address any missed rest periods, summary judgment on any claims based on missed rest periods is appropriate. See Ramirez,
With respect to missed meal breaks, the Court is not convinced by Agreserves’s arguments. First, there is more than a single instance of Robles voluntarily missing a meal break. Robles declared that he missed 22 meal periods while working under Campo and Cervantes. See Robles’ Dec. ¶¶ 23, 24. 24. Second, the existence of a formal policy by Agreserves is unavailing. Robles declared that foremen gave him assignments during the meal periods and prevented him from actually taking a meal period. See id. This testimony indicates that foremen and supervisors “impeded” Robles and that Robles was not given “bona fide relief.” If there is impeding behavior or no “bona fide relief,” then an emplоyer faces liability. Brinker Rest.,
E. 8th & 9th Causes of Action — Common Counts — Work and Labor Performed & Quantum Meruit
Parties ’ Arguments
Agreserves argues that the Labor Code regulates the payment of wages for time worked by employees, and also sets compensation and penalties for missed meal and rest periods. Because there is a statute that directly addresses the issues raised by Robles, his two common count claims fail. Robles does not respond to this argument, or otherwise defend these causes of action.
Discussion
Under the “new right-exclusive remedy” doctrine, “where a statute creates new rights and obligations not previously existing in the common law, the express statutory remedy is deemed to be the exclusive remedy available for statutory violations, unless it is inadequate.” Helm v. Alderwoods Grp., Inc.,
F. 10th Cause of Action — California Labor Code § 226
Defendant’s Argument
Agreserves argues that summary judgment is appropriate on Robles’s wage statement claims for several reasons. First, this cause of action is tied to Robles’s meal and rest break claims. Since those claims fail, so too should the § 226 claim. Second, a violation of § 226 requires a showing of knowing and intentional conduct by the employer. The evidence shows that, at the time of termination, Agre-serves had a good faith belief that the wage statements provided to Robles were fully compliant. Third, because the statute of limitations for a § 226 claim is one year, all claims for wage statement violations accruing before February 27, 2013 are time barred.
Plaintiff’s Opposition
Robles argues that he was prevented, from taking a meal break for 22 days. However, Robles’s pay stubs do not indicate that he received 1 hour of pay for each of the missed meal breaks. Because the pay stubs do not reflect the required 1 hour of pay, Robles argues that summary judgment should not be granted.
Legal Standards
Labor Code § 226 requires an employer at the time that wages are paid to provide an accurate itemized statement that contains nine items. See Cal. Labor Code § 226(a); Reinhardt v. Gemini Motor Transp.,
Initially, contrary to Agreserves’s arguments, the Court has found that summary judgment on Robles’s missed meal breaks claim is improper. Therefore, the failure of the meal breaks claim is not a valid basis for summary judgment.
With respect to the statute of limitations, Robles does not argue that he seeks actual damages under § 226(e), nor does he respond to Agreserves’s argument that any claims accruing before February 27, 2013 are time- barred by the one-year limitations period of Civil Code § 340(a). In the absence of an opposition, the Court views Robles as seeking only penalties under § 226(e). Therefore, Agreserves'is correct that all claims that accrued • before February 27,2013 are time barred by Civil Code § 340(1), and summary judgment on those claims is appropriate. See. Summary judgment in favor of Agreserves. on all §. 226 claims that accrued before February 27, 2013 is appropriate.
With respect to claims that accrued after February 26, 2013, Agreserves has submitted the declaration of Walter Keenan, who is its Human Resources Director. -In pertinent part, Keenan declared: “Agre-serves has a policy of paying all wages due at time of termination. At the time of [Robles’s] termination, I believe that [Robles] was provided the full amount of wages for hours he worked at Agreserves, and I have a good faith belief that all wage statements Agreserves provided to him were compliant and accurate.” Keenan Dec. ¶ 10. Agreserves relies on this declaration to argue that it had a good faith belief that its wage statements were compliant with the law. See DUMF 50. Robles disputes DUMF 50 and Keenan’s declaration by pointing out that: (1) Robles’s foremen Caused him to miss 22 meal breaks, (2) none .of Robles’s paychecks reflect an hour’s wage for any of the 22 missed meal breaks, (3) another worker testified he was told to work through a meal break to finish a job if the job was urgent, and (4) Payne considered a statement by Campo that included Robles complaining to Campo that “Epifanio” prevented Robles from taking a meal break. See Plaintiffs Response to DUMF 50.
The’ Court cahnot conclude that Robles has not adequately refuted DUMF 50 or otherwise shown that Agreserve's’s violation of § 226(a) was “knowing and intentional.” First, the Court will assume that the absence of pay for any of the 22 missed meal periods demonstrates a violation of §§ 226(a)(1), (5), and/or (9). However, simply , demonstrating a violation of § 226(a) does not show “knowing and intentional” conduct. See Willner, 35 Supp.3d at 1131. Second, Ramon Lopez (a general labor employee of Agreserves) testified that, if a job is urgent, Agreserves instructed him to continue working until the job is finished, and then the break is taken. See Lopez Depo. 7:9:8:1.. Lopez also testified that Agreserves tries mostly to get the break before five hours, but depending on the situation, the break could occur after five hours. See id. This testimony shows that. Agreserves sometimes requests that an employee continue working until an urgent job is done, and then take a meal break. It does not discuss payment for the missed meal break, or whether any information or compensation concerning the missed meal break is included on pay
In short, Robles his demonstrated that employees sometimes are told to miss their meal periods and the he personally was not compensated. Robles has not shown that Agreserves knowingly and intentionally violated § 226(a). Summary judgment in favor of Agreserves on this claim is appropriate. See Willner,
G.11th Cause of Action — Labor Code § 558
Defendant’s Argument
Agreserves argues that because this claim is derivative of the meal and break period claim. Because meal and break period claim fails, the Labor Code § 558 claim also fails.
Plaintiff’s Opposition
Robles argues that summary judgment is improper. Labor Code § 558 provides penalties for violations of other Labor Code provisions. Because his meal break claims are viable, Robles argues that he should recover the penalties under § 558.
Discussion
Agreserves’s argument is based entirely on the viability of Robles’s claim for missed meal breaks. Because the Court has found that summary judgment is improper on Robles’s missed meal breaks claim, Agreserves’s express argument is unavailing.
Nevertheless, as discussed above, there is no private cause of action created by Labor Code § 558. See Renazco,
H.12th Cause of Action — California Business & Professions Code § 17200
Parties ’ Arguments
Agreserves argues that this claim is derivative of Robles’s other causes of action, and because those claims fails, this claim fails as well. Robles does not respond to this argument.
California Business & Professions Code sec 17200 prohibits “unfair competition,” which is defined to mean any “unlawful, unfair, or fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200; In re Tobacco II Cases,
Here, the Complaint shows that this cause of action is based on Agreserves failing to provide Robles with meal and rest breaks. See Complaint at ¶ 113. As discussed above, Robles has viable meal breaks claims, but not rest break claims. Because Robles has viable meal break claims, he has a viable § 17200 claim. Summary judgment on this claim is inappropriate.
L 13th Cause of Action — California Labor Code § 1102.5
Defendant’s Argument
Agreserves argues that Robles cannot establish a prima facie case of “whistle-blower” retaliation. Robles bases his § 1102.5 claims on complaints about wage and hour violations and unsafe working conditions. However, these claims were brought to Payne’s attention via a written statement on April 1, 2013 — after his employment was terminated. Moreover, Robles cannot show a causal connection between any protected activity and his termination, and there is no evidence that Payne’s reasons for terminating Robles was pretext.
Plaintiffs Opposition
Robles argues that his knee was injured on March 14, 2013, while he was driving a tractor with a faulty seat over uneven ground, Robles argues that he complained •that his foreman instructed him to drive faster, which caused him to hit his knees on the steering wheel. Robles had also complained about race and national origin harassment. Payne allegedly terminated Robles for not participating in the investigation regarding Robles’s injured knee and using vulgar language. However, Robles argues that he explained why he was injured and what had happened, and that foremen often used vulgar language. Payne was obviously looking to find some reason to justify Robles’s termination following Robles’s complaints about unsafe work conditions and various kinds of harassment.
Legal Standards
Labor Code § 1102.5 is a “whistle-blower” statute. See Rope v. Auto-Chlor System of Washington, Inc.,
Discussion
Robles’s Complaint alleges claims under § 1102.6(b) and § 1102.5(c). See Complaint at ¶¶ 117,118.
With respect- to § 1102.5(b), Robles contends that he was retaliated against for complaining about harassment and unsafe .working conditions. See id. at ¶ 117. Robles’s opposition indicates that the complaints ’ he made were to Agre-serves personnel. See Doc. No. 36 at pp. 20-21. Under the 2013 version of § 1102.5, only complaints or reports made to a governmental ágency are protected; complaints or reports made “internally” to the employer are not protected. See Green v. Ralee Engineering Co.,
With respect to § 1102.5(c), the evidence does not reflect a refusal to engage in unlawful conduct. Instead, the evidence, shows that Robles complained about Camp'o’s conduct and workplace conditions to Cervantes, Barnum, or Payne, but Robles still performed his work, including riding on the tractor until his knee was injured; Complaining about various conditions is “reporting activity,” it is not a refusal to act. See Tobin v. City & Cnty. of San Francisco Police Dept.,
J. 14th Cause of Action — Wrongful Termination in Violation of Public Policy
Defendant’s Argument
Agreserves argues that summary judgment should be granted because no evidence indicates that the termination violated public policy or that the termination was motivated by a violation of public policy. Payne presented legitimate, non-retaliatory business reasons for terminating Robles. To wit, Robles was insubordinate, refused to cooperate with an investigation, was dishonest, and did not follow safety procedures. Robles cannot proffer any evidence that some unlawful retaliatory motive was what substantially motived the termination.
Plaintiffs Opposition
Robles argues that he has .presented evidence that Agreserves’s reason for termination was pretext and that the real
Legal Standards
The elements of a claim of wrongful termination in violation of public policy are: (1) the plaintiff was employed by the defendant, (2) the defendant discharged the plaintiff, (3) a violation of public policy was a motivating reason for the discharge, and (4) the discharge harmed the plaintiff. Nosal-Tabor v. Sharp Chula Vista Medical Center,
■Discussion
To the extent that Robles is relying on his retaliation causes of action, such reliance is unavailing. As discussed above, Robles has no viable claims for retaliation. With respect to Labor Code § 1102.5, Robles did not engage in “protected activity.” With respect to Title VII retaliation,
With respect to discrimination, California has an important fundamental public policy against discriminatory terminations, as reflected in FEHA. See Brown v. Superior Ct.,
K. 15th Cause of Action — False Imprisonment
Robles contends that Agreserves is vicariously liable for the false imprisonment committed by Campo during the “car incident,” and by Payne during the termination meeting. With respect to Campo, as
With respect to Payne, as discussed above, the Court has denied summary judgment in favor of Payne for false imprisonment. Therefore, summary judgment in favor of Agreserves must also be denied. See Lisa M. v. Henry Mayo Newhall Mem. Hosp.,
L. 16th Cause of Action — IIED
Defendant’s Argument
Agreserves argues that Robles’s IIED cause of action is based on seven claims: (1) national origin harassment; (2) religion harassment; (3) retaliatory termination fоr complaining about harassment and unsafe working conditions; (4) discriminatory termination; (5) false imprisonment; (6) assault by Campo; and (7) prohibiting Robles from having meal breaks. To the extent that the any of these underlying claims fail, so too fails the IIED claim.
If any of the underlying claims survive, summary judgment is still warranted because Robles cannot meet the elements of IIED. First, none of the acts complained of are sufficiently outrageous. Second, there is no credible evidence that Robles suffered “severe emotional distress.” Third, no one at Agreserves intended to cause Robles emotional distress.
Additionally, Agreserves argues that workers’ compensation bars this IIED claim because each of the relevant acts is a normal part of the employment relationship.
Plaintiff’s Opposition
Robles argues that the false imprisonment by Payne and the false imprisonment, assault, battery, and harassment by Campo were “outrageous,” and that Agre-serves is vicariously liable for those acts. Robles also argues that he has provided sufficient evidence of severe emotional distress based on the fear, depression, anxiety, nightmares, etc. that he experienced.
Discussion
The Court has largely dealt with these arguments' in resolving Campo’s and Payne’s respective summary judgment motions, or in resolving other portions of Agreserves’s motion. Initially, as discussed above, Robles has submitted sufficient evidence that he experienced “severe emotional distress.” See PUMF’s 162-168.
With respect to assault by Campo, the Court has found that there is no viable cause of action. Therefore, the alleged assault by Campo is not a basis for IIED, and summary judgment on this claim is appropriate.
With respect to battery by Campo, the Court has found that there is no viable cause of action. Therefore, the alleged battery by Campo is not a basis for IIED. Alternatively, the alleged battery (being struck in the hand two to three times while Campo hit the truck seat) is not close to being sufficiently outrageous to support an IIED claim. See Hughes,
With respect to FEHA national origin harassment by Campo, the Court has found that there is no viable cause of action. Therefore, the alleged national origin harassment by Campo is not a basis for IIED, and summary judgment on this claim is appropriate.
With respect to false imprisonment by Payne, although there is a viable cause of action, the Court has found that Payne’s conduct is not sufficiently outrageous. Therefore, the alleged false imprisonment by Payne is not a basis for IIED, and summary judgment on this claim is appropriate.
With respect to retaliation for reporting harassment and unsafe working conditions, the Court has found no viable causes of action. Therefore, the alleged retaliation by Agreserves is not a basis for IIED, and summary judgment is appropriate.
With respect termination based on religion animus, the Court has found that there is no viable cause of action. Therefore, the alleged religion discrimination by Agreserves is not a basis for IIED, and summary judgment is appropriate.
With respect to meal breaks, Robles does not defend this basis for an IIED claim. Therefore, summary judgment for this reason is appropriate. See Ramirez,
To the extent that Robles relies on battery by Payne, the Court has found that there is no viable cause of action. Therefore, the alleged battery by Payne is not a basis for IIED. Alternatively, the alleged battery (pushing Robles once during the termination meeting) is not close to being sufficiently outrageous to support an IIED claim. See Hughes,
Finally, with respect to religion harassment and discharge based on national origin discrimination, the Court has found that Robles has viable claims. California courts recognize that FEHA discrimination and harassment constitute “outrageous” conduct. See Murray,
ORDER
Accordingly, IT IS HEREBY ORDERED that:
1. With respect to Payne’s motion, summary judgment is GRANTED as to Robles’s causes of action for:
a. Assault; and
b. Battery;
2 With respect to Payne’s motion, summary judgment is DENIED as to Robles’s cause of action for false imprisonment;
3 With respect to Campo’s motion, summary judgment is GRANTED as to Robles’s causes of action for:
a. Title VII;
b. The California Constitution;
c. FEHA national origin harassment;
d. Assault;
e. Battery;
f. False imprisonment;
g. Labor Code § 558; and
h. Intentional infliction of emotional distress based on assault, battery, false imprisonment, and national origin harassment;
4 With respect to Campo’s motion, summary judgment is DENIED as to Robles’s causes of action for:
a. FEHA religion harassment; and
b. Intentional infliction of emotional distress based on religion harassment;
5. With respect to Agreserves’s motion, summary judgment is GRANTED as to Robles’s causes of action for:
a. Title VII harassment and retaliation based on national origin;
b. Title VII discrimination and retaliation based on religion;
c. Assault;
d. Battery;
e. Labor Code § 226;
g. Labor Code § 558;
h. Labor Code § 1102.5;
i. False imprisonment based on conduct by Campo;
h. wrongful termination violation of public policy based on violation of Labor Code § 1102.5;
i. Common counts for work performed and quantum meruit; and
j. IIED based on assault, battery, missed meal breaks, retaliation, national origin harassment, religion discrimination, and false imprisonment;
6. With respect to Agreserves’s motion, summary judgment is DENIED as to Robles’s causes of action for:
a. Title VII discrimination based on national origin;
b. Title VII harassment based on religion;
c. Labor Code § 226.7 & § 512;
d. Business & Professions Code § 17200;
e. False imprisonment based on conduct by Payne;
f. Wrongful discharge in violation of the policy reflected in FEHA; and
g. IIED based on religion harassment and discriminatory discharge; and
7.The Clerk shall CORRECT the docket to reflect that that “George Campo,” and not “Jorge Campos,” is the proper defendant.
IT IS SO ORDERED.
Notes
. “Jorge Campos” appears as a defendant on the docket, but Robles’s opposition names a "Jorge Campo,” Defendants’ motion identifies a "George Campo,’'’ and "George Campo” filed a declaration as a defendant. See Doc. No. 33-8. Given the papers and the declaration, the Court concludes that "Jorge Campos,” “Jorge Campo” and George Campo are one in the same. The Court will follow the declaration and identify this party as "George Campo” and also will order the Clerk to correct the docket to reflect that "George Cam-po,” and not "Jorge Campos,” is the correct party.
. "DUMF” refers to Defendants’ Undisputed Material Fact, and "PUMF” refers to Plaintiff's Undisputed Material Fact. The parties make numerous objections to the proffered undisputed facts. Most of the objections are unnecessary and without merit. Objections that are not expressly addressed in this order are deemed overruled for purposes of Defendants’ motions. The Court notes that Defendants have improperly cited the California Evidence Code in almost all of their objections. It is the Federal Rules of Evidence, not the California Evidence Code, that apply in this case. See Fed. R. Evid. 101; Primiano v. Cook,
. PUMF 92 is based on Paragraph 24 of Robles’s Declaration. Defendants object in part that Paragraph 24 is a sham because it contradicts Robles’s deposition. In his deposition, Robles was asked: "To be clear, the only individual that directly told you to not take a .break and to do sweeping instead was this John, correct?” Robles responded, "Yes.” See Robles Depo. 124:5-10. However, this deposition passage is referring to sweeping. The cited .deposition passage does not refer to incidents in the field, where Campo allegedly prevented Robles from taking a break. Because different incidents appear to be involved, the Court cannot say that Paragraph 24 of Robles's Declaration contradicts Page 124 of Robles's Deposition to such a degree that the declaration is a sham. See Yeager v. Bowlin,
. Defendants object that testimony about what Cervantes said is hearsay. However, Cervantes’s statements appear to fit under Federal Rules of Evidence 801(d)(2)(D), see Nigro v. Sears, Roebuck, & Co.,
.Defendants dispute PUMF 93 on the same grounds they dispute PUMF 92, including that the relevant portion of Robles’s declaration is a sham. For the same reasons discussed with respect to PUMF 92, the Court cannot conclude that PUMF 93 is. based on a "sham” declaration. See Footnote 3, supra. Additionally, Defendants object that there is no evidence that Cervantes had any authority to prevent Robles from taking a meal break. However, Cervantes intemewed Robles during the hiring process, Cervantes was a foreman, and Robles worked under Cervantes, See Robles Dec. ¶ 44; PUMF’s 12, 13. Given Cervantes’s actions, title, and the common understanding of what a foreman does,,there is sufficient evidence to infer that Cervantes had authority' to direct Robles’s áctions. 'See Naravan,
. With respect to a number of Defendants’ undisputed facts (such as DUMF 15), Robles attempts to create a dispute by repeating his version of the facts surrounding the acсident, his interactions with Campo, or the complaints he made about Campo. Robles’s responses to Defendants’ facts generally are extremely lengthy and repetitive, i.e. a lengthy response to one DUMF is cut and pasted as a response to another DUMF. The responses generally do not directly address the purported fact, rather they are Robles's narrative repeated over and over and over again. That is not a proper response and it does not create a genuine dispute. A proper response directly and clearly addresses a purported fact, not a possible inference from the fact; it should be concise, explain the basis for the factual dispute, and cite to evidence that demonstrates a dispute. There should be no need for the Court to sift through a lengthy narrative in the hopes of finding something that actually addresses and disputes the purported fact. See Simmons,
. DUMF’s 27 and 30 indicate that Payne was not aware of Robles's national origin or of anyone uttering words about Robles’s national origin. However, as discussed infra., there is evidence that Payne uttered words about Robles's national origin. Accordingly, the aspects of DUMF's 27 and 30 that deal with Payne's knowledge or perception of Robles's national origin are not accepted for purposes of this motion. See Narayan,
. The recording lasted about three minutes. See DUMF 36. The recording was played at the deposition and transcribed as part of the deposition by the reporter. See Robles Depo. 159:9-163:11.
.The deposition transcript identifies "J.R.” as Robles, and then identifies other speakers as “Voice.” It is not clear whether the "Voice” was Payne or Keenan. However, from the context, Payne’s declaration, and some of Robles’s PUMF's, it appears that Payne most likely did most of the speaking. See PUMF’s146-157; Payne Depo. 121:19-122:20. 125:6-128:21; Payne Dec. ¶ 11. Unless otherwise noted, the Court will assume for purposes of this motion that Payne is the person speaking when the deposition transcript identifies "Voice.”
. Defendants object to Robles’s testimony. Defendants cite Federal Rule of Evidence 1002, the "best evidence rule,” and argue that the recording speaks for itself, Rule 1002 reads in part, "An original ... recording ... is required in order to prove its content unless these rules or a federal statute provides otherwise.” Defendants’ objection is unpersuasive because Rule 1002 does not apply to Robles’s testimony. Robles was not testifying as to the content of the recording at the relevant point in his deposition. See United States v. Diaz-Lopez,
. Payne denies that he ever said anything derogatory regarding Mexicans. See Payne Dec. ¶ 10. However, for purposes of summary judgment, Robles's version of events is credited. Narayan,
. Despite state rules, the Court may consider unpublished state cases as persuasive authority. See Employers Ins. of Wausau v. Granite State Ins. Co.,
. The Court recognizes that these are criminal cases. However, the California Supreme Court has explained that the tort of false imprisonment is “identically defined” as the crime of false imprisonment. See Fermino,
. The Court notes that Robles did not defend any of his claims under the California Constitution. This is another basis for granting summary judgment. See Ramirez v. City of Buena Park,
. Robles also declared that he complained to Cervantes that Campo had sáid, “stupid Mexican," and Cervantes called Payne about the complaint. See Robles Dec. ¶¶ 12, 13, 14. These assertions are contrary to Pages 200 and 201 of Robles’s deposition because Robles did not hear Campo say “stupid Mexican." Therefore, the Court also strikes Paragraphs 12, 13 and 14 of Robles’s declaration as a sham. See Yeager,
. Defendants also object that Paragraph 8 contradicts Pages 360 and 361 of Robles’s deposition. However, Pages 360 and 361 deal with a conversation that Robles had with another foreman. There are no questions on Pages 360 or 361 about what Campo said in general, or in particular whether Campo ever said that .he was "above all the Mexicans.” Defendants have not shown that Robles’s declaration is a "sham” compared with Pages 360 and 361 of Robles’s deposition. See Yeager,
. Membership in the same national origin can be considered in determining whether the totality of the circumstances demonstrate harassment or a hostile work environment. See Ferguson v. Waffle House, Inc.,
. The Court notes that Robles declares that he was forced to pray three times while under Campo’s'supervision. See Robles Dec. ¶21. However, Robles testified at his deposition that one of the three times was when someone “big” in Agreserves talked to the workers about how well the company was doing. See Robles Depo. 439:7-14, It was that “big” indb vidual who had the workers pray, not Campo. See id. Therefore, Campo was not resрonsible for forcing or requiring Robles to pray three times. Because the Court finds that Campo’s four statements a day to Robles over a 15 day period is sufficient to show harassment, the Court need not decide whether Paragraph 21 'of Robles’s declaration should be stricken as a sham, See Yeager,
. Campo declared that he did not hit Robles. See Campo Dec. ¶ 6.
. Robles did not testify that Campo intentionally or consciously struck him. See Robles Depo. 123:9-25. Further, although Robles submitted a declaration, his declaration does not mention the "car incident” with Campo. See Doc. No. 39.
. As discussed above, there is insufficient evidence to contradict Campo’s declaration that he was shooting at coyotes to drive them away from the farmland. See Campo Dec. ¶ 5. As such, there is also no evidence that Campo acted with the intent to injure Robles. See Cal. Lab. Code § 3601(a)(1); Jones,
. The Court notes that an aggrieved employee can recover the penalties of Labor Code § 558, but he must utilize the procedures of Labor Code § 2699.3. See Chang v. Biosuccess Biotech Co., Ltd.,
. Under the McDonnell Douglas burden shifting framework, the plaintiff first must establish a prima facie case of discrimination. Sanders v. City of Newport,
. From other parts of the memo, it is possible that Arreola works in - the human resources department.
. Estrada is a foreman who was working with Meza and Robles on March 14, 2013, SeePUMF 114.
. The Court notes that only a portion of Payne’s- deposition was provided to the Court. This is contrary to Local Rules 133(j) and 260, which requires parties to submit á full courtesy copy of any deposition upon which they rely.
. Robles worked under Campo from February 4 to February 25, 2013. See DUMF 7; see also Campo Dec. ¶3; Guleser Dec. Ex. 19. Each of these dates fall outside of § 340(a)’s one-year limitations period. Depending on when Robles was given his pay stubs/wage statements, it is possible that a significant portion of Robles’s § 226 claims may be timé barred.
. Robles declares that he filed a complaint with OSHA against Agreserves. See Robles Dec. ¶ 24, However, the submitted evidence shows that the complaint was filed in early April 2013, after his termination. See Robles Dec. Ex. 25. Because the termination predates the OSHA complaint, the termination could not have been retaliatory.
. The Complaint contains two Title VII retaliation claims, but no FEHA retaliation claims. See Doc. No. 1-1.