Shawn Parker v. Trader Joe’s Company, et al

Case Number

22CV03213

Case Type

Hearing Date / Time

Wed, 01/24/2024 - 10:00

Nature of Proceedings

Defendants’ Demurrer to Plaintiff’s First Amended Complaint

Tentative Ruling

For Plaintiff Shawn Parker: Jonathan McKee

For Defendants Trader Joe’s Company, Zeb Albert, and Caroline Neufeld: Brandie N. Charles, Nicole Vongchanglor, Littler Mendelson, P.C.

                       

RULING

For the reasons set forth herein:

1. Defendants’ demurrer to Plaintiff’s third cause of action for harassment in violation of FEHA is overruled as to Zeb Albert.
2. Defendants’ demurrer to Plaintiff’s third cause of action for harassment in violation of FEHA is sustained with leave to amend as to Caroline Neufeld.
3. Defendants’ demurrer to Plaintiff’s third cause of action for harassment in violation of FEHA is overruled as to Trader Joe’s Company.
4. Defendants’ demurrer to Plaintiff’s tenth cause of action for emotional distress is sustained without leave to amend.
5. Plaintiff shall file and serve his second amended complaint no later than February 14, 2024.

Background

This action was originally commenced on August 18, 2022, by the filing of the complaint by Plaintiff Shawn Parker against Defendants Trader Joe’s Company (Trader Joe’s) and Zeb Albert (Albert). On December 21, 2022, the Court scheduled a case management conference regarding service on Albert for February 1, 2023, and advised Plaintiff that a proof of service or a dismissal should be filed no later than January 30, 2023. On February 1, 2023, with no appearance by Plaintiff, and no proof of service on file for Albert, the Court set an order to show cause for Plaintiff counsel’s failure to comply with the December 21, 2022 order. On February 23, 2023, Plaintiff dismissed Albert without prejudice.

Trader Joe’s answered the original complaint on November 23, 2022, asserting a general denial and forty-seven affirmative defenses.

Following permission of the Court to do so, on October 12, 2023, Plaintiff filed the operative first amended complaint (FAC) for damages against Defendants Trader Joe’s, Albert, and Caroline Neufeld (Neufeld).

The FAC contains causes of action for: (1) Discrimination in violation of FEHA (Disability); (2) Discrimination in violation of FEHA (Race); (3) Harassment in violation of FEHA; (4) Retaliation in violation of FEHA; (5) Failure to accommodate disability; (6) Failure to engage in good faith interactive exchange re: accommodation of disability; (7) Failure to prevent harassment, retaliation or discrimination; (8) Violation of rights under the California Family Rights Act; (9) Wrongful termination in violation of public policy; and (10) Intentional infliction of emotional distress.

As alleged in the FAC:

Plaintiff was employed by Trader Joe’s as a crew member from July 1, 2006, until he was terminated on August 11, 2021. (FAC, ¶ 2.) Albert was, at all times material, Plaintiff’s manager and supervisor at Trader Joe’s. (FAC, ¶ 7.)

At all times material to this action, Plaintiff performed his job duties in a satisfactory manner. (FAC, ¶ 18.) During Plaintiff’s employment with Trader Joe’s, he “sustained multiple injuries as follows: July 31, 2011, specific to the head, neck and back; January 15, 2015, specific to the right knee; July 1, 2006 to September 27, 2015, to the bilateral wrists, arms, and upper extremities.” (FAC, ¶ 19.) As a result of Plaintiff’s medical conditions, had a history of need for reasonable accommodations, including lost time, surgery, and “probable” work limitations. (FAC, ¶ 21.)

In February 2020, prior to Albert becoming Plaintiff’s manager, Plaintiff received a very positive performance evaluation. (FAC, ¶ 23.) Prior to Albert becoming Plaintiff’s manager, in August 2020, Plaintiff was allowed limited time away from work to receive treatment for his medical conditions and injuries. (FAC, ¶¶ 24-25.)

After Albert became Plaintiff’s manager, Albert “commenced a systematic pattern of harassment, hostility, singling out, mistreatment and disparate treatment toward Plaintiff, subjecting Plaintiff to ridicule, criticism that was unjustified, and other adverse actions that negatively impacted Plaintiff’s ability to perform his job functions. The mistreatment included cutting Plaintiff’s work hours without justification, which resulted in a loss of medical insurance benefits to Plaintiff’s great detriment.” (FAC, ¶ 26.) Albert’s actions toward Plaintiff were motivated by Plaintiff’s race and prior history of being disabled due to workplace injuries occurring from 2006 through 2015. (FAC, ¶ 27.)

As a result of Albert changing store policy, Plaintiff was unable to work enough hours to keep his health care benefits. (FAC, ¶¶ 28-29.) In January 2021, Plaintiff contacted Human Resources Manager Vivian Wong and Region Manager Neufeld regarding the adverse actions and advised them that he had pre-existing medical conditions and provides medical insurance for his son. (FAC, ¶ 30.) Plaintiff was deprived on medical and health insurance through July 2021. (Ibid.)

On February 23, 2021, Albert gave Plaintiff a negative performance evaluation that was false and pretextual. (FAC, ¶ 32.) Following several incidents involving Plaintiff and Albert, on August 2, 2021, Defendant conducted a “crew review” which assessed Plaintiff as meeting expectations “in every category and describes him as exhibiting considerable improvement, as solid, versatile, valuable, integral, that he does an excellent job, and provides a WOW customer experience.” (FAC, ¶ 42.)

On August 2, 2021, Plaintiff notified Defendants that he needed to take time off for hand surgery and recovery, starting on September 3, 2021. (FAC, ¶ 43.) On August 11, 2021, Trader Joe’s and its agent Albert terminated Plaintiff employment because, according to an incident report, on August 5, 2021, Plaintiff entered the Trader Joe’s store without a face covering to pick up his paycheck. (FAC, 44.)

On December 19, 2023, Trader Joe’s, Albert, and Neufeld (collectively Defendants) filed the present demurrer to Plaintiff’s FAC arguing that the third cause of action for harassment in violation of FEHA, and the tenth cause of action for intentional infliction of emotional distress, do not state facts sufficient to constitute causes of action against Defendants.

Plaintiff opposes the demurrer.

Analysis

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the Court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

“[A] Court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the Plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. “ ‘[W]e are not limited to Plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The Courts of this state have . . . long since departed from holding a Plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.’ ” [Citations.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.)

Third Cause of Action for Harassment in Violation of FEHA (Hostile Work Environment)

Government Code section 12923 went into effect on January 1, 2019. It clarified existing law relating to harassment in California.

“The Legislature hereby declares its intent with regard to application of the laws about harassment contained in this part.

“(a) The purpose of these laws is to provide all Californians with an equal opportunity to succeed in the workplace and should be applied accordingly by the Courts. The Legislature hereby declares that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being. In this regard, the Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that in a workplace harassment suit “ ‘the Plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the Plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.’ ” (Id. at 26).

“(b) A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the Plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuit’s opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.

“(c) The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the “ ‘stray remarks doctrine.’ ”

“(d) The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, Courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties. The Legislature hereby declares its disapproval of any language, reasoning, or holding to the contrary in the decision Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.

“(e) Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues “ ‘not determinable on paper.’ ” ” (Gov. Code, § 12923.)

Plaintiff brings his harassment cause of action pursuant to Government Code section 12940, subdivision (j). That section provides, among other things, that it is an unlawful employment practice: “For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, reproductive health decisionmaking, or veteran or military status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer's control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.”

“To establish a prima facie case of unlawful harassment under FEHA, a Plaintiff must show “ ‘(1) he was a member of a protected class; (2) he was subjected to unwelcome . . . harassment; (3) the harassment was based on [the Plaintiff’s membership in an enumerated class]; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) [Defendant] is liable for the harassment.’ ” [Citation.]” (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 137.)

“A showing that harassment created a hostile work environment requires a showing “ ‘ “that the Defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee.” ’ ” [Citations.] “ ‘The law prohibiting harassment is violated ‘ “[w]hen the workplace is permeated with discriminatory intimation, ridicule and insult that is “ ‘ “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” ’ ” ’ ” [Citation.]” (Ibid.)

                        Harassment Claims Alleged Against Albert

Defendants argue that Plaintiff cannot assert a cause of action against Albert based on Plaintiff’s race and disability on the grounds that Plaintiff only alleges that Albert reduced Plaintiffs hours, was involved in Plaintiff’s loss of health benefits, gave one negative performance evaluation, and terminated Plaintiff. Defendants argue: “At best, the conduct that Plaintiff alleges to support his claim of ‘harassment’ are personnel management decisions, which as a matter of law do not support a claim for unlawful harassment.” (Demurrer, p. 10, ll. 2-4.) Defendants also acknowledge that Plaintiff alleges that Albert asked a colleague (referring to Plaintiff), “what’s up with you and the big black dude?” stared at Plaintiff and another colleague, and stared at Plaintiff, shook his head, laughed, and told a colleague: “some people are just funny and never learn.”

Here, Defendants are asking the Court to weigh evidence and make a factual determination that the alleged conduct is not severe or pervasive enough to qualify as harassment under FEHA. It would be improper to do so. As stated above: “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the Plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (Gov. Code, § 12923, subd. (b).) A reasonable trier of fact could conclude that Albert’s conduct and comments could amount to harassment. The demur to the third cause of action, as to Albert, will be overruled.

                        Harassment Claims Alleged Against Neufeld

Defendant claims that Plaintiff harassment cause of action fails as to Neufeld because Plaintiff failed to exhaust his administrative remedies against her by failing to file a DFH complaint against her, with the Fair Employment & Housing Department and receiving a Right to Sue letter.

“A Plaintiff asserting a cause of action arising under FEHA must first file a timely complaint with the DFEH and obtain the agency’s permission to file a civil action in Court. [Citation.] To be timely, the administrative complaint must generally be filed within “ ‘one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred.’ ” (Gov. Code, § 12960, subd. (d).)” (Brown v. City of Sacramento (2019) 37 Cal.App.5th 587, 598.)

As alleged in the FAC: “Plaintiff exhausted his administrative remedies by filing DFEH Complaints against Defendants with the Fair Employment & Housing Dept. in timely fashion, and by receiving a Right to Sue Letters from the Fair Employment & Housing Dept. on August 17, 2022. A true and correct copy is attached as Exhibit A.” (FAC, ¶ 61.)

Exhibit A lists Trader Joe’s and Albert. It does not identify Neufeld.

Plaintiff does not dispute that he was required to comply with Government Code section 12900 et seq. and exhaust his administrative remedies prior to the Court acting. He also does not dispute that Neufeld was not named in the original DFEH complaint that resulted in the initial right to sue letter.

In order to correct his admitted error, Plaintiff attaches an FEHA complaint, naming Neufeld, that is dated January 8, 2024. Plaintiff does not properly request that the Court take judicial notice of the complaint or right to sue letter.

“The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.” (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.)

As the Court may not consider anything other than the pleading, and matters of which it may take judicial notice, Plaintiff’s attempt to correct the error fails. Plaintiff also fails to allege any harassing conduct on the part of Neufeld.

The demurrer to the third cause of action as to Neufeld will be sustained. As this is the first ruling on demurrer, Plaintiff will be given leave to amend.

                                 Harassment Claims Against Trader Joe’s

Defendants argue that the third cause of action against Trader Joe’s fails because Plaintiff does not allege any additional conduct on the part of Trader Joe’s.

Trader Joe’s may be held liable pursuant to Government Code section 12940, subdivision (j)(1), which is quoted above, for harassment “if the entity, or its agents or supervisors,” knew of the conduct and failed to take immediate and appropriate action.

Here, Plaintiff alleges harassment and that “[d]efendants or its supervisors or agents knew or should have known of the conduct and failed to take immediate and appropriate corrective action.” (FAC, ¶ 94.) The allegations, when read in context of the entire complaint, are sufficient to overcome demurrer.

The demurrer to the third cause of action as to Trader Joe’s will be overruled.

            Tenth Cause of Action for Intentional Infliction of Emotional Distress

Defendants argue that the tenth cause of action fails because: (1) It is preempted by the exclusive remedy provision of the California Workers’ Compensation Act (WCA); and (2) Defendants’ alleged conduct is not extreme and outrageous.

Despite Plaintiff’s argument that his IIED claim falls out of the exclusive remedy rule: “The alleged wrongful conduct, however, occurred at the worksite, in the normal course of the employer-employee relationship, and therefore workers’ compensation is Plaintiffs’ exclusive remedy for any injury that may have resulted.” (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902.)

Plaintiff provides no coherent argument or persuasive authority refuting Defendants’ argument that, because the alleged actions took place in the normal course of the employer-employee relationship, Workers’ Compensation is Plaintiff’s exclusive remedy. As such, the demurrer will be sustained as to the tenth cause of action.

In the alternative:

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the Defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the Plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the Defendant's outrageous conduct.’ [Citations.] A Defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] And the Defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, internal quotation marks omitted (Hughes).)

Plaintiff’s allegations regarding his IIED claim are, as acknowledged in his opposition:

“Plaintiff was subjected to unwanted harassing conduct, and a hostile work environment, based on disability and age. Defendants engaged in conduct that created a hostile work environment by intentional, improper conduct including, but not limited to, rude comments, questions and behavior directed to Plaintiff on a regular basis, including disability-based, derogatory comments directed to Plaintiff; shunning of Plaintiff; belittling of Plaintiff’s job; reprimands of Plaintiff in front of Plaintiff’s coworkers; hostile social interactions with Plaintiff in the workplace; lying to Plaintiff about the terms and conditions of employment; failing to pay Plaintiff all amounts owed and earned; refusing to assign work to Plaintiff; firing Plaintiff based on knowingly fabricated grounds; and similar actions undertaken in a way that sent a demeaning or offensive message to Plaintiff, and consisted of a combination of hostile social interactions and official employment actions that reinforced an underlying hostile message, which constitute evidence of harassment, and created a hostile working environment.” (FAC, ¶ 91.)

At most, Plaintiff’s allegations, assuming them to be true, constitute insults, indignities, and annoyances that are insufficient to constitute a cause of action for intentional infliction of emotional distress. (See Hughes, supra, 46 Cal.4th at p. 1051 [“[l]iability for intentional infliction of emotional distress ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ [Citation.]”]; Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128 [“there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances”].)

As it does not appear the complaint is capable of amendment to allege facts sufficient to support a claim for IIED, the demurrer to the tenth cause of action for IIED will be sustained without leave to amend.