Ralphs Grocery
Filed 3/26/13 Ramos v.
Ralphs Grocery CA4/1
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GUSTAVO A.
RAMOS,
Plaintiff and Appellant,
v.
RALPHS
GROCERY COMPANY, INC. et al.,
Defendants and Respondents.
D060196
(Super. Ct. No. 37-2010-00088103-CU-OE-CTL)
APPEAL
from a judgment of the Superior Court
of
County, William S. Dato, Judge.
Affirmed.
Appellant
Gustavo A. Ramos was employed by respondent Ralphs Grocery Company, Inc.
(Ralphs), from 1989 to 1990 and from June 1996 until he was terminated in March
2009 for twice calling a coworker a "fucking racist bitch." Ramos sued Ralphs and two of his former
supervisors, respondent John Meza and Jennifer Welker, asserting causes of
action for harassment (but
and national origin in violation of the Fair Employment and Housing Act (FEHA)
(Gov. Code,
title="">[1]
§ 12900 et seq.) and for intentional
and negligent infliction of emotional distress.
On
appeal, Ramos contends the trial court erred in granting summary judgment in
favor of Ralphs and Meza because (1) he raised material disputed facts in
support of his age harassment claim and because the court erred in applying the
law to that claim, and (2) his emotional distress claims were not barred by the
exclusivity provisions of the workers' compensation law. As we explain, we disagree with both
contentions and affirm the judgment.
BACKGROUND
The
following facts are undisputed:
Ramos held
the position of courtesy clerk or "bagger" at the Ralphs store in Del
Mar, California, from 1996 until
February 2006, when he was promoted to merchandise clerk. During his employment, Ramos was a member of
the United Food and Commercial Workers Union, Local 135. Ramos was again promoted in December 2006 to
the position of food clerk, which is the position he held at the time of his
termination in March 2009. When Ramos
received each promotion, he was told it was to increase his salary, but that he
was to remain a bagger because of his popularity with customers.
In late
2008 and early 2009, Ralphs faced a company-wide issue with union employees
working out of their job classifications.
Specifically, many union employees were performing job duties in job
categories that paid less than their assigned job classification. That is, instead of receiving the pay rate
for the job classifications for which they were performing duties, many union
employees were receiving the pay rate—which was higher—for their job
classifications, but they were not performing the duties of their job
classifications.
To
address this issue, Ralphs instructed all district managers and store directors
to correct the issue of job "misclassifications." Ralphs district manager Wayne Colwell was
responsible for "District 11," which included the Del
Mar store, and frequently discussed the misclassification issue at district
meetings. In early 2009, District 11
began correcting the misclassification problem by reassigning misclassified
employees to appropriate departments and positions to match their actual job
classification.
Ramos was
among the employees who were working out of their job classifications. In February and March 2009, John Meza took
over as store director of the Del
Mar store and realigned about 10 employees, including Ramos, into their proper
job classifications. Prior to the
realignment, Ramos was classified and paid as a food clerk, but as noted,
was performing the duties of a courtesy clerk. Meza moved Ramos from the "front of the
store" to the produce department.
In the produce department, Ramos would be performing job duties
appropriate for someone classified as a food clerk.
Ramos
told Steven Bodle, the comanager of the Del
Mar store, that he did not want to be assigned to work in produce. Ramos subsequently contacted district manager
Colwell about the reassignment. Colwell
in turn advised Meza to keep Ramos at the front of the store. Thus, Ramos did not move to produce and
continued to work as a courtesy clerk, even though he was classified and paid
as a food clerk.
As a
courtesy clerk, Ramos was responsible for greeting customers; packing
customers' groceries; helping customers carry groceries to their cars;
maintaining the cleanliness, orderliness and general appearance of the store
and checkstand area; retrieving shopping carts from the parking lot and
removing trash from the carts; performing miscellaneous cleanup duties in the
store and in the parking lot; and breaking down, removing and disposing of
cardboard boxes, among other duties.
Gabe
Navarette was the store director of the Del Mar Ralphs before Meza. Navarette frequently assigned Ramos general
cleaning duties at the store, including a recurring assignment every Wednesday
to clean the floors, pull empty pallets and empty cardboard boxes from the
store. Navarette also had Ramos clean
the floors, the storage room and the break room of the store. In addition, comanager Bodle also assigned
Ramos to mop, clean the frozen foods glass doors and wipe the chrome around the
milk stand.
Once Meza
became the store director, he instructed various courtesy clerks to clean,
because that was one of the duties of a courtesy clerk. Meza instructed Ramos and other courtesy
clerks to clean the frozen foods glass doors, both inside and outside, and the
bottom metal bumper alongside the freezers, among other cleaning duties. Meza also instructed Ramos to clean the
outside of the store's windows, to pick up trash and debris that accumulated
behind the store, and to clean the baseboards and ceiling panels inside the
store.
In
mid-March 2009, Ramos became involved in a verbal dispute with the store's
sales manager Anita Cerniglia. While
Cerniglia was at a checkstand ringing up the groceries of a customer who frequently
shopped at the store,
name="_ftnref3" title="">[3]
Ramos came over and told another bagger who was already helping with the
customer, "I got this one" or words to that effect, and began
unloading the customer's cart and bagging the customer's groceries. Cerniglia directed Ramos to leave, but Ramos
refused. After Cerniglia repeated her
demands to Ramos, Ramos told Cerniglia at least twice in a hushed tone,
"leave me alone, fucking racist bitch."
The
following day, Meza reported the incident to Ralphs's labor relations representative
Kirk Reynolds. Reynolds suspended Ramos
and directed Meza to obtain witness statements about the incident. After reviewing those statements, including
the statement by Cerniglia and by the other courtesy clerk who witnessed the
incident, Reynolds recommended that Ramos be terminated. Ramos was subsequently terminated from
employment at Ralphs for (1) violation of company rules, (2) foul/abusive
language to coworkers, (3) inappropriate behavior/unprofessional conduct and
(4) causing a disturbance.
Ramos
subsequently filed a grievance statement with his union seeking reinstatement
of employment and back pay. In this
multiple-page statement, Ramos alleged that Meza created a hostile work
environment because he was upset that Ramos earned higher wages than the other
courtesy clerks; that Meza assigned him difficult manual labor tasks and then
criticized his performance of those tasks in an effort to
"demoralize" Ramos; and that Cerniglia purposely provoked the
confrontation with Ramos, which led to his swearing at her, because she too had
become hostile toward Ramos after he had obtained Colwell's assistance to
remain in the front of the store rather than be transferred to produce.
Defendants
subsequently moved for summary judgment/adjudication.
the trial court granted summary judgment/adjudication in favor of respondents
as follows:
"Plaintiff
Gustavo Ramos is 55 years old and a citizen of Venezuela. (Ramos Decl. ¶ 1.) He was initially employed with Ralphs from
1989 to 1990. (Ramos Decl. ¶ 2.) In 1996 he resumed his employment with
Ralphs, and he continued to work there until his termination on March 20, 2009. (UMF 1.)
From at least 1997, plaintiff worked at the Del Mar store, where he
performed Courtesy Clerk duties. (UMFs
2, 4.) Such duties include: (1) greeting customers, (2) packing
customers' groceries and helping them to their car, (3) maintaining the
cleanliness and orderliness of the checkstand area, (4) performing
miscellaneous cleanup duties in the store and parking lot, (5) breaking down
and disposing of cardboard boxes, (6) handling cleanups throughout the store,
and (7) retrieving carts from the parking lot and removing trash from
them. (UMF 5.) The clerks scheduled to work in the mornings
are often asked to generally clean up the store. (UMF 6.)
"Plaintiff
loved his job and, in particular, the personal relationships he developed with
customers. (Ramos Decl. ¶ 9; Def. NOL,
Patajo Decl., Ex. 1, p. 171.) In
February 2006, he was promoted from Courtesy Clerk to General Merchandise
Clerk, with an attendant increase in pay.
(UMFs 24-25.) In December 2006,
plaintiff was promoted to Food Clerk, which resulted in another increase in
pay. (UMFs 26-27.) He was told that he was given these
promotions to increase his salary, but that he would 'remain a bagger' due to
his outstanding customer service skills.
(Ramos Decl. ¶ 3.)
"John
Meza assumed the role of Store Director in February 2009. (Meza Decl. ¶ 2.) Plaintiff claims that his relationship with
Meza was strained from the beginning because Meza 'made it abundantly clear
that he felt that I was paid too much money.'
(Ramos Decl. ¶ 8.) According to
plaintiff, Meza told him 'I can get two for you. I can get two [baggers] for the price for
what we pay you.' (Pltf. NOL, Ex. 3, p.
223.) Plaintiff heard from others that
Meza had complained about this issue at a meeting of the district store
directors, but that District Manager Wayne Colwell told Meza to leave him alone
because he 'was a great favorite with the customers.' (Ramos, Decl. ¶ 8.)
"Meza
was unfriendly to plaintiff, belittled him in front of others, and assigned him
difficult and unusual tasks to prevent him from having customer contact. (Ramos Decl. ¶¶ 10-11.) Meza ordered plaintiff to clean the outside
of all of the store windows, a task he did not believe any other store employee
had ever done. (Ramos Decl. ¶ 11.) While he was cleaning, Meza frequently came
by, made comments about how much money he made and what a lousy job he was
doing, and ordered him to rewash [the] windows.
(Ramos Decl. ¶ 11.)
"On
another occasion, Meza ordered plaintiff to wash baseboards, which he did not
believe any other employees had ever done.
(Ramos Decl. ¶ 12.) Plaintiff
states that it 'was the most arduous and difficult task' he had ever done while
at Ralphs, as the job took 3 to 4 days to complete and required him to either
lie on the floor or work on his knees, without anything to prevent him from
inhaling the dirt and dust from the floor and without any pads to protect his
knees. (Ramos Decl. ¶ 12.) Again, Meza frequently came out to observe
his work, criticize him, and order him to redo certain baseboards. (Ramos Decl. ¶ 12.)
"Around
plaintiff's birthday, Meza ordered him to the rear of the store to perform yet
another job plaintiff did not believe anyone else had been ordered to
do—cleaning up a large debris pile consisting of items such as broken chairs,
old cash registers, broken glass and old shopping carts. (Ramos Decl. ¶ 13.) The pile was covered in rust, mold and
dirt. (Ramos Decl. ¶ 13.) Plaintiff believes that Meza ordered him to
the rear of the store so that he would not have contact with customers who
would normally wish him well on his birthday.
(Ramos Decl. ¶ 13.) Meza also
ordered plaintiff to clean the ceiling panels, which was an impossible
task. (Ramos Decl. ¶ 14.) Meza again criticized plaintiff but,
ultimately realizing the futility of the work, ordered new panels. (Ramos Decl. ¶ 14.)
"Meanwhile,
Ralphs was addressing a company-wide issue with union employees working out of
their job classification, such that they were performing job duties in job
categories that paid less than their assigned classifications. (Colwell Decl. ¶ 4.) Ralphs instructed all District Managers and
Store Directors to correct this issue.
(Colwell Decl. ¶ 5.) Ramos was
one of the employees working out of his job classification, because he
continued to perform Courtesy Clerk duties despite the fact that he was
classified and paid as a Food Clerk.
(UMFs 23, 28; Meza Decl. ¶ 8.)
"Thus,
after Meza took over he realigned several employees, including plaintiff, so
that they would be working in their proper job classifications. (UMF 21; Meza Decl. ¶¶ 2, 7-8.) Meza told plaintiff he would be transferred
to the Produce department where he would perform the duties of a Food
Clerk. (Meza Decl. ¶ 8.) Plaintiff believed that Meza's intent was to
isolate him from the customers, and the only reason given for the change was
that 'other baggers make less money and it is not fair to them.' (Ramos Decl., ¶ 16.) Plaintiff was devastated by this news and
offered to take a pay cut to remain in the bagger position. (Ramos Decl. ¶ 16.) Meza refused, saying 'I wouldn't look good
with customers if I cut your pay.'
(Ramos Decl. ¶ 16.)
"Two
days later, plaintiff discussed the issue with Steve Bodle, co-manager of the
store. (Ramos Decl. ¶ 18; Bodle Decl. ¶
2.) Bodle told plaintiff he didn't want
him to transfer to Produce either, and suggested he call Colwell. (Ramos Decl. ¶ 18.) Colwell also agreed with plaintiff and told
Meza to keep him at the front of the store, which Meza did. (Ramos Decl. ¶ 18; Colwell Decl. ¶¶ 8-9; UMF
33.) According to plaintiff, he then
began to receive taunts, especially from Front End Manager Jennifer Welker and
Anita Cerniglia. (Ramos Decl. ¶
19.) Plaintiff theorizes that since Meza
had been rebuffed by Colwell, he had devised another plan to get rid of
him—disclosing plaintiff's salary information to other employees, who then
became resentful. (Ramos Decl. ¶ 19.)
"Events
reached a head on March 15, 2009, when plaintiff became involved in a verbal
dispute with Cerniglia, a sales manager at the time. (UMF 34.)
Plaintiff had come over to Cerniglia's checkstand to assist a customer
that he knew well, Kim Admire, unload her groceries. (UMF 35; Ramos Decl. ¶ 20.) Ramos was concerned and wanted to help
because Admire had her three young children with her and, while she was trying
to unload the groceries, her baby began crying.
(Ramos Decl. ¶ 21.) Cerniglia
repeatedly told plaintiff his help was not needed and asked him to leave. (UMFs 36-37; Ramos Decl. ¶ 21.) Plaintiff and Admire both state that
Cerniglia was very hostile and agitated.
(Ramos Decl. ¶ 21; Admire Decl. ¶ 10.)
Exasperated, plaintiff twice told Cerniglia 'leave me alone, fucking
racist bitch.' (Ramos Decl. ¶ 21.) According to plaintiff, he used a low tone so
as not to embarrass Admire. (Ramos Decl.
¶ 21.)
"Meza
was not at work the day of the incident, but when he learned about it he
contacted Ralphs Labor Relations. (Meza
Decl. ¶ 10.) Based on the incident,
Senior Labor Relations Representative Kirk Reynolds decided to suspend Ramos
and later recommended that he be terminated for: (1) violation of company
rules; (2) foul/abusive language to co-workers; (3) inappropriate
behavior/unprofessional conduct; and (4) causing a disturbance. (Reynolds Decl. ¶¶ 3-4.) Plaintiff was terminated on March 20, 2009,
and subsequently filed this action. He asserts
four claims: intentional infliction of
emotion distress (1st cause of action); negligent infliction of emotional
distress (2nd cause of action); harassment based on age under FEHA (3rd cause
of action); [and] harassment based on national origin (4th cause of action).
"
subd. (j)(1)):
"In
his third cause of action, plaintiff alleges he was harassed based on his
age. (FAC ¶¶ 61-72.) Defendants assert this claim has no merit
because plaintiff cannot show that any of the alleged mistreatment was based on
his age. Plaintiff concedes that nobody
ever mentioned his age during any of the alleged harassing incidents, and that
he has never been told by anyone, or read any documents, indicating that he was
subjected to harassment because of his age.
(UMFs 390-392.) Rather, plaintiff
claims that Meza harassed him because of how much plaintiff was paid. (UMFs 386-388.) Plaintiff asserts that, in effect, this
constituted harassment based on age
because he made more money than the younger employees who had not worked at
Ralph's as long as he had. (Pltf. Opp.,
pp 13-14.) In early 2009, none of the
other baggers were even near plaintiff's age, and plaintiff guessed that the
average age of the other baggers was 16 to 21.
(Pltf. NOL, Ex. 3, p. 223.)
"Under
FEHA, disparate treatment or termination based on salary or wages may
constitute age discrimination 'if use of the criterion adversely impacts older
workers as a group . . . .'
(Gov. Code, § 12941 [emphasis added].) Focusing on the latter phrase, the Supreme
Court in Guz v. Bechtel Nat. Inc. (2000)
24 Cal.4th 317 responded to a plaintiff's claim that his employer had engaged
in discriminatory efforts to reduce salaries by releasing higher-paid older
workers. The court emphasized that the
employer's decision to select one junior employee for a junior position did not
'have a disparate impact on older workers as
a group.' (Id.
at p. 390, fn. 29.)
"While
there is evidence that Meza may have harassed plaintiff based on his wage rate,
plaintiff has failed to introduce any evidence that Meza engaged in this type
of conduct toward higher-paid and older workers as a group. The Court recognizes that in this case there
may not have been any older baggers.
However, that would not preclude plaintiff from establishing, for
example, that Ralphs or Meza were working to get rid of older and higher-paid
employees in general. No such evidence
was presented. Plaintiff has thus failed
to create a triable issue of fact that Meza's conduct was the result of age
discrimination.
[¶] . . . [¶]
"Negligent
and Intentional infliction of emotional distress:
"Defendants
contend that plaintiff's two emotional distress claims are barred by the exclusive
remedy provision of the worker's compensation law. (Lab. Code, § 3600 et seq.) Generally,
emotional distress claims are barred by the exclusivity rule unless the
defendant's conduct falls outside the normal part of the employment
relationship or violates a fundamental public policy statute. (See Shoemaker
v. Myers (1990) 52 Cal.3d 1, 25 ['The kinds of conduct at issue (e.g.,
discipline or criticism) are a normal part of the employment relationship. Even if such conduct may be characterized as intentional,
unfair or outrageous, it is nevertheless covered by the workers' compensation
exclusivity provisions']; Cole v. Fair
Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 ['when the misconduct
attributed to the employer is actions which are a normal part of the employment
relationship, such as demotions, promotions, criticism of work practices, and
frictions in negotiations as to grievances, an employee suffering emotional
distress causing disability may not avoid the exclusive remedy provisions of
the Labor Code by charactering the employer's decisions as manifestly unfair,
outrageous, harassment, or intended to cause emotional disturbance resulting in
disability']; Miklosy v. Regents of
University of California (2008) 44 Cal.4th 876, 902; Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24
Cal.4th 800, 812.) This rule applies
whether the injuries were caused by the wrongful termination of employment, or
the acts leading up to the termination.
(Shoemaker,
"Plaintiff
argues that these claims are not barred because they arise from unlawful
discrimination and harassment, and that '[t]he actions of Meza and Welker in
fabricating reasons to dismiss the plaintiff were clearly outside the
"employment relationship" and the "compensation
bargain."' (Pltf. Opp., pp.
8-9.) However, as set forth above,
plaintiff has failed to establish that he was discriminated against or harassed
based on his age . . . .
Moreover, there is no evidence that Welker played any role in deciding
whether to terminate plaintiff and, although Meza did participate to some
extent in the termination, the recommendation was made by Reynolds.
"Finally,
even if Meza's conduct relative to the cleaning tasks he assigned plaintiff
could be considered unfair or outrageous, it does not fall outside of the
employment relationship so as to bring plaintiff's claims outside of the
exclusivity rule. (Cole, supra, 43 Cal.3d at
pp. 160-161.) There is no distinguishable
difference between this case and Cole,
where the plaintiff alleged that the assistant chief harassed him in a number
of ways, including assigning plaintiff to perform 'humiliating and menial
duties.' (Id. at pp. 152-153.) The
California Supreme Court held that plaintiff's emotional distress claims were
barred by the worker's compensation exclusivity rule: 'the allegations in the instant case as to
the conduct of the employer and the
assistant chief reflect matters which can be expected to occur with substantial
frequency in the working environment.
Some harassment by superiors when there is a clash of personality or
values is not uncommon.' (
"
Sept. 23, 2009, No. C 08-1517 PJH) 2009 WL 3112098 and Garcia-Barajas v. Nestle Purina Petcare Co. (E.D. Cal. July 15,
2009) 2009 WL 2151850, neither of which are binding on this Court, are
inapposite because the emotional distress claims involved alleged violations of
fundamental public policy. In
that to the extent plaintiff's emotional distress claims were premised on
sexual harassment, or the failure of her employer to take action to prevent the
harassment, 'those claims cannot be considered to be based on the normal
employment relationship' and therefore would not be barred by the exclusivity
rule. (Beagle, supra, 2009 WL at
p. *13.) Similarly, in
his emotional distress claim on the employer intentionally exposing him to serious
known health hazards and then terminating him when he exercised his statutory
right to complain. (Garcia-Baraja, supra,
2009 WL at p. *8.) Here, by contrast,
Ramos has not introduced any evidence tending to show that Meza's harassment
violated a fundamental public policy or statute."
DISCUSSION
"On
appeal after a motion for summary judgment has been granted, we review the
record de novo, considering all the evidence set forth in the moving and
opposition papers except that to which objections have been made and
sustained. [Citation.] Under California's traditional rules, we
determine with respect to each cause of action whether the defendant seeking
summary judgment has conclusively negated a necessary element of the
plaintiff's case, or has demonstrated that under no hypothesis is there a
material issue of fact that requires the process of
matter of law. [Citations.]" (Guz v.
Bechtel National Inc. (2000) 24 Cal.4th 317, 334-335.)
A. Age
Harassment Claim
The FEHA is limited to the categories specifically enumerated in the
statute. (See Rojo v. Kliger (1990) 52 Cal.3d 65, 79-80 ["FEHA bars
discrimination only on the grounds specified"].) As pertinent here, the FEHA makes it "an
unlawful employment practice" "[f]or an employer
. . . , because of
. . . age . . . , to harass an
employee . . . ."
(§ 12940, subd. (j)(1), italics added.)
Respondents
contend the trial court correctly granted summary judgment/adjudication of
Ramos's claim that he was harassed "because of" his age, in violation
of section 12940, subdivision
(j)(1), inasmuch as Ramos admitted that nobody in this lawsuit ever mentioned
his age during any of the alleged harassing incidents and he was never told by
anyone, or read any documents, indicating that he was subjected to harassment
"because of" his age. !(CT 682)! As such, respondents contend the
burden shifted to Ramos to establish by admissible evidence a triable issue of
fact that he was in fact harassed "because of" his age.
argues he proffered sufficient evidence establishing a causal link between the
alleged harassment and his age, and thus is entitled to a trial on his
claim. Specifically, he argues that the
evidence of his long tenure at Ralphs supports the inference he was harassed
"because of" his age, inasmuch as he was much older than the other
courtesy clerks and earned higher wages than them as a result of his
longstanding employment at Ralphs, which spanned more than a decade and
included at least two promotions.
Although
there is evidence that Meza may have
harassed Ramos, there is no evidence in the record that Ramos was harassed
"because of" his age.
(§ 12940, subd. (j)(1); see also Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d
1420, 1426 [concluding section 12940, subdivision (b) did not apply because
plaintiff failed to show he was harassed because
of plaintiff's sex].) Indeed, Ramos
cannot point to any evidence establishing that respondents took any actions
against him as a result of his age. The
comments by Meza that Ramos made "too much money," that the other
courtesy clerks were upset at the amount Ramos was paid by Ralphs to do the
same job and that based on what Ramos was paid, Meza allegedly could "get
two baggers" for the Del Mar store are age neutral, as respondents
correctly note. In any event, harassment
for being a higher paid employee than other similarly situated employees (i.e.,
"wage-rate" harassment—a term used by the trial court here) is not a
protracted class or category recognized by the FEHA. (See Rojo
v. Kliger, supra, 52 Cal.3d at
pp. 79-80.)
Moreover,
we reject Ramos's contention that the trial court improperly applied the law in
granting summary judgment/adjudication of his age harassment claim. Ramos contends the trial court improperly
interpreted section 12941
Ramos must be an established member of a "group" for his age
harassment claim to proceed. Because
Ramos could not establish that Meza engaged in discriminatory behavior against
other older employees at Ralphs, according to Ramos his age harassment claim
could not go forward.
The
trial court in its ruling, ante,
evidence of age-based harassment against other older employees of Ralphs in
order to create a disputed material fact to defeat summary
judgment/adjudication of this claim.
Rather, the trial court noted that because of the lack of evidence
proffered by Ramos that respondents' alleged actions were due to his age, Ramos
could not establish a disputed material fact merely by introducing evidence of
Meza's alleged statements about Ramos's salary unless—as section 12941 states—Ramos also offered evidence of
salary discrimination against other similarly situated (i.e., a
"group") older employees. (See
§ 12941.) There is no such evidence
in the record.
We
thus independently conclude the trial court properly granted summary
judgment/adjudication of Ramos's age harassment claim because respondents have
demonstrated that under no hypothesis is there a disputed material fact that
requires the process of trial on this claim.
(Guz v. Bechtel National Inc.,
supra, 24 Cal.4th at pp. 334-335.)
B. Emotional
Distress Claims
Ramos next
contends the trial court erred when it found his emotional distress claims were
barred by the exclusive remedy provisions of the Workers' Compensation Act.
The
workers' compensation statutes, set forth in Labor Code section 3200 et seq.,
provide the full remedy, "in lieu of any other liability whatsoever,"
for injuries "arising out of and in the course of . . .
employment." (Lab. Code,
§ 3600, subd. (a).) Our Supreme
Court has held that "claims for intentional or
provisions of the workers' compensation
law . . . ." (Livitsanos
v. Superior Court (1992) 2 Cal.4th 744, 747; see also Shoemaker v. Myers
(1990) 52 Cal.3d 1, 15.)
Such
claims are preempted even if they result from allegedly wrongful termination (Shoemaker
v. Myers, supra, 52
Cal.3d at p. 25), and an employee "may not avoid the exclusive remedy
provisions of the Labor Code by characterizing the employer's decisions as
manifestly unfair, outrageous, harassment or intended to cause emotional
disturbance resulting in disability."
(Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160-161 [allegations of intentional employer
misconduct are insufficient to avoid the exclusivity provisions of the workers'
compensation system, inasmuch as an "employer's supervisory conduct is
inherently 'intentional'"].)
in certain "'exceptional circumstances'" a separate civil action may
lie where the employee's injury results from employer conduct that is outside
the normal risk of employment. (See
Comp. Ins. Fund (2001) 24 Cal.4th 800, 812.) In making this determination, the key issue
is whether the alleged acts themselves, bereft of claimed motives, "'can
ever be viewed as a normal aspect of the employer relationship' . . . ." (Id. at p. 822.)
Here, the
record shows Ramos's emotional distress claims were based on his purported
transfer to the produce department and his change of hours in order to limit
allegedly Ramos's interaction with customers, which interaction gave Ramos the
most job satisfaction; Meza's repeated criticisms of Ramos's work performance;
Meza's comments that Ramos was overpaid to work as a bagger; and Meza's
directives to Ramos to perform allegedly menial and difficult cleaning tasks
that were "outside [Ramos's] job description and experience."
We
therefore conclude that Ramos's emotional distress claims are preempted as they
are premised on alleged acts of harassment that fall squarely within the normal
risk of employment. (See
701, 717 [an employee's claims are barred under the exclusive remedy provisions
of the workers' compensation law if the claims are based on an employer's
intentional acts that are "a 'normal' part of the employment
relationship"]; see also Cole v.
Fair Oaks Protection Dist., supra,
43 Cal.3d at pp. 160-161 [allegedly "outrageous" acts by employer
were normal risks and conditions of employment and thus plaintiff could not
maintain his emotional distress claim even with evidence that employer:
intentionally harassed plaintiff in union negotiations; demanded that plaintiff
report to a meeting for performance evaluation and possible disciplinary action
and refused to allow plaintiff to attend a funeral; took punitive action
against plaintiff for his union activities; assigned plaintiff
"'humiliating and menial duties'" once he returned to work after
being out on medical leave due to high blood pressure from job stress; and
placed plaintiff in the entry-level position of dispatcher after employer
publicly stripped plaintiff of his fire fighter's captain badge, claiming
plaintiff was dishonest].)
Ramos
also contends his emotional distress claims are outside the exclusivity
provisions because he was subjected to age harassment in violation of section
12940, subdivision (j)(1). (See, e.g., Murray
v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1363
[emotional distress claims based on an employer's harassment or discrimination
are not barred by the exclusivity provisions of workers' compensation laws].)
Ramos's
contention fails because as we discussed ante,
he has no basis for an FEHA claim (see Jones v. Department of Corrections
& Rehabilitation (2007) 152 Cal.App.4th 1367, 1382 [plaintiff's
emotional distress claims failed to the extent they were tethered to an unestablished
sex discrimination claim]) and has proffered no evidence to show the motive
behind his employer's alleged acts of harassment violated a "'fundamental
policy of this state' [citation]."
(Charles J. Vacanti, M.D., Inc. v.
State Comp. Ins. Fund, supra, 24
Cal.4th at p. 812.) Therefore, we
independently conclude the trial court properly granted summary
judgment/adjudication of Ramos's emotional distress claims.
DISPOSITION
The
judgment is affirmed. Respondents Ralphs
and Meza are awarded their costs on appeal.
BENKE, Acting P. J.
WE CONCUR:
McINTYRE,
J.
AARON,
J.
name="_ftn1" title="">[1] All statutory references are to the Government Code unless
otherwise indicated.
name="_ftn2" title="">[2] Ramos does not challenge on appeal the judgment in favor of
Welker or the adjudication of his race/national origin claim in respondents'
favor.
