MARTHA VAQUERA VS CINTAS CORPORATION ET AL

Tentative Rulings

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Case Number: ****0733 Hearing Date: August 20, 2021 Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20

Date: Friday, August 20, 2021

Case Name: Martha Vaquera v. Cintas Corp., et al.

Case No.: ****0733

Motion: Summary Adjudication

Moving Party: Defendants Cintas and Arce

Responding Party: Plaintiff Vaquera

Notice: OK

Ruling: The Motion for Summary Adjudication is GRANTED as to the causes of action against Arce for breach of implied-in-fact contract, intentional infliction of emotional distress, wrongful termination and negligent hiring and supervision. The Motion is GRANTED as to the cause of action for breach of implied-in-fact contract as stated against Defendants generally.

The Motion is DENIED as to the causes of action against Defendants generally for failure to accommodate, failure to engage in the interactive process, failure to prevent harassment, and DENIED as to each of the FEHA claims against Arce.

Defendants to give notice.

If counsel do not submit on the tentative, they are encouraged to appear remotely rather than in person.

BACKGROUND

On October 24, 2017, Plaintiff Martha Vaquera filed a Complaint against Defendants Cintas Corporation, Isabel Juarez, Oscar Martinez, Brad Feldtz, Richard Arce and Does 1-100, stating causes of action for age and disability discrimination, age and disability harassment, retaliation, failure to prevent harassment, failure to provide reasonable accommodation, failure to engage in the interactive process, breach of implied-in-fact and/or oral contract, negligent supervision, whistleblower retaliation, wrongful termination and intentional infliction of emotional distress. The claims arise out of Plaintiff’s employment with Cintas between July 28, 1999 to December 12, 2016 principally as a folder of garments.

On May 7, 2019, Defendants filed a Motion for Summary Judgment or Adjudication.

On August 6, 2021, Plaintiff filed an Opposition.

On August 13, 2021, Defendants filed a Reply.

DISCUSSION

Evidentiary Objections

Plaintiff filed 42 objections to excerpts of her own deposition. Defendants did not file evidentiary objections.

At the outset, the objections based on vagueness and ambiguity are all OVERRULED. In the context of the deposition, there is no real vagueness or ambiguity as to terms such as "restrictions," "job duties," or "training." The objections of ambiguity as to the time period at issue lack merit when the deposition excerpts are read in context. It is frivolous to claim the word "sue" is ambiguous in asking why Plaintiff initiated a lawsuit against Arce. Objections 1, 8-11, 14, 16, 17, 31, and 33 are based solely on such objections and are OVERRULED.

Objections 19, 21, 22 and 30 are OVERRULED as the subject "out-of-court" statements are extracted from Plaintiff\'s verified Complaint.

Objections 20, 24, 25 and 34 are OVERRULED because the reference to an out-of-court discussion without describing its contents does not constitute inadmissible hearsay.

Objections 18, 27 and 40 are OVERRULED as the excerpts do not contain hearsay and are not argumentative or conclusory.

Objections 1, 23, 28, 29, 32 and 37 are OVERRULED as the excerpts lack hearsay.

Objections 18, 41 and 42 are OVERRULED as clearly meritless.

However, Objections 26, 38 and 39 are SUSTAINED as to argumentative questions. Objections 2-5, 12, 13 and 15 are SUSTAINED as constituting inadmissible hearsay. Objections 6, 7, 12, 13 and 15 are also SUSTAINED as the subject testimony contravenes the secondary evidence rule.

Applicable Law

Summary judgment is proper when the moving party is entitled to judgment as a matter of law and there are no triable issues of material fact. (CCP sec. 473c(c).) In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) The moving party must satisfy the initial burden of proof by presenting facts to negate or establish an essential element of each claim at issue. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the moving party has met its burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material fact exists. (CCP ; 437c(o)(2).) “Materiality is measured by the law applicable to the legal theories put in issue by the complaint [or petition].” (Panattoni v. Superior Court (1988) 203 Cal.App.3d 1092, 1094.) Factual issues are immaterial if they are “outside the scope of the pleadings.” (AARTS Production, Inc. v. Crocker National Bank (1986) 176 Cal.App.3d 1601, 1065.) The trial court “can find a triable issue of material fact ‘if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1271 (quoting King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.))

Application to Facts

On October 29, 2003, Plaintiff (then 47 years old) suffered a shoulder injury. (UMF 46.) Plaintiff underwent shoulder surgery in January 2004 and took a leave of absence through May 31, 2004. (UMF 49 (undisputed surgery occurred)) After the surgery, Plaintiff received modified work instructions from her doctor indicating she should not perform heavy lifting, pushing or pulling with weight restrictions. (UMF 47, 49 (disputed as to amount of weight for restrictions.)) Plaintiff claims Defendants "ignored" the restrictions and returned her to "her usual and customary work duties." (Vaquera Decl., para. 7, 13-15.) Plaintiff then performed much of her work with her uninjured shoulder, unsurprisingly with decreased efficiency, and exacerbated the injury to her injured shoulder in the process. (UMF 50.)

On August 2, 2005, Plaintiff claims Defendant Juarez informed her that her work restrictions had been lifted. (UMF 57.) Defendants do not appear to dispute this, but it is disputed whether the work restrictions had in fact been lifted; Cintas claims Plaintiff was permitted to continue working under her restrictions but insists they were lifted, while Plaintiff claims she called her doctor and confirmed the restrictions had not actually been lifted. (UMF 58; compare Vaquera Decl., para. 22-23.) On October 17, 2005, Plaintiff alleges Defendant Martinez directed her to lift bundles above her head in excess of her work restrictions; Plaintiff refused, though claims she suffered repercussions later. (UMF 61, 63.) Plaintiff also claims Juarez badgered Plaintiff for "proof of her work restrictions even though she already had them” when Plaintiff contested Juarez’s claims the restrictions had been lifted and Martinez’s directions to lift mats in excess of her weight restrictions.

Plaintiff underwent a second shoulder surgery in April 2008 and took a two-month leave of absence to recover. (UMF 51.) Upon return, Plaintiff received work modification instructions from her doctor indicating she should be placed on "light duty" which would not require lifting, pushing or pulling more than 30 pounds. (UMF 51.) Plaintiff claims these modifications were "permanently required . . . regarding her left shoulder." However, Plaintiff claims she was again returned to her ordinary work duties without modification.

In 2009, Cintas introduced a token-based production incentive system, in the process cutting the base hourly pay of employees such as Plaintiff and providing payment for tokens obtained proportionate to work completed (e.g., one token per bundle folded and submitted).[1] Plaintiff argues this system was inherently discriminatory by "singling out injured employees who could not work fast enough" to make up the loss of pay. (Opposition, p. 5.) The token system also enabled more precise tracking of employee productivity. In particular, Plaintiff alleges she experienced pressure to work faster in order to "meet the production requirements"—and, presumably, to ensure she is able to maintain similar income. (Vaquera Decl., para. 55-58 (“The new token system program placed me under a lot of stress to produce more”); cf. UMF 52 (Defendants claim Plaintiff’s work sped up based on work experience rather than pressure from the token system))

In 2010, Plaintiff called an internal Cintas hotline to complain regarding her disability accommodations. (UMF 32 (undisputed that Cintas Directline is a "24-hour, toll-free number" to "report workplace concerns"; disputed that Directline was a legitimate means to confidentially raise concerns); Vaquera Decl., para. 59) Plaintiff alleges her coworkers soon discovered she had placed this call, even though it was intended to remain confidential. (Vaquera Decl., para. 59.) Later that year, Plaintiff received a warning for not “meeting company standards” for productivity. (UMF 53; Vaquera Decl., Exh. 21.) Plaintiff claims this was a formal disciplinary action based on Cintas\'s policies and Martinez’s testimony that verbal action is disciplinary in nature, which Defendants dispute. (See Martinez Depo., p. 112:23-113:1 (testifying he considers "a verbal warning" to be "part disciplinary process"))

On November 11, 2014, Plaintiff suffered a second workplace injury, this time to her elbow. (Evidence.) Plaintiff reported her injury to Defendants Gonzalez and Arce. However, Plaintiff claims Arce "deliberately" ignored the injury and did not investigate. Plaintiff claims Arce "refused to send Plaintiff to the clinic, he did not check on the gravity of her injury, he never walked over to see Plaintiff’s condition, and he forced her to suffer in pain and continue working for another 3 hours before Defendant Martinez took her to the clinic." (Vaquera Decl., para. 72-74.) Arce was transferred to a different Cintas location in June 2016 and was not employed as Plaintiff\'s supervisor after the transfer. (UMF 1.) Plaintiff claims Arce\'s conduct created a continuous hostile work environment after his transfer because Arce "set the pattern and practice” at the location for “how management must treat older individuals and individuals suffering from a disability."

Ultimately, on October 27, 2016, Cintas employees, including Laura Perez, accused Plaintiff and another employee of submitting chips reflecting a greater amount of work than they actually performed, falsely inflating productivity for more pay. Plaintiff alleges the investigation was "one-sided" as Defendants did not take a statement from Plaintiff before firing her on December 12, 2016. Further, Plaintiff argues the limited investigation conducted failed to comply with Cintas\'s own policies, including suspending Plaintiff with pay pending the investigation and taking her statement. Plaintiff instead worked during the investigation until she was fired. Plaintiff also notes Cintas took a statement from the other accused employee.

On November 23, 2016, reporting employee Perez allegedly assaulted Plaintiff. Plaintiff reported the assault to Defendant Martinez, who apparently took no further action. (UMF 42.) On December 1, 2016, Perez allegedly kicked Plaintiff again at work, which prompted Plaintiff to report the incident to Martinez again. Martinez again failed to take any further action in response to this report. Plaintiff was undisputedly fired on December 12, 2016. On October 23, 2017, Plaintiff filed a complaint with the Department of Fair Employment and Housing (DFEH). (UMF 2.) On October 24, 2017, Plaintiff filed the instant Complaint.

FEHA Statute of Limitations—Arce

First, Defendants argue Plaintiff\'s second, fourth, fifth, seventh and eight causes of action against Arce are barred by the statute of limitations for FEHA claims. “FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred.’” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63.) Here, Plaintiff filed a complaint with the DFEH on October 23, 2017. (UMF 2.) Thus, Plaintiff’s DFEH complaint encompassed events in the preceding year—through October 23, 2016. Plaintiff argues she can still sue for conduct preceding October 23, 2016 under the continuing violation doctrine.

In Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, the Supreme Court “h[e]ld that an employer\'s persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation if the employer\'s unlawful actions are (1) sufficiently similar in kind recognizing . . . that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [cite]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Id. at 823.) “[C]onsistent with [California] case law and with the statutory objectives of the FEHA,” the Court “h[e]ld that ‘permanence’ in the context of an ongoing process of accommodation of disability, or ongoing disability harassment, should properly be understood to mean the following: that an employer\'s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.” (Id.)

Plaintiff argues Arce\'s conduct outside the limitations period (i.e., before October 23, 2016) was sufficiently similar in kind to events occurring within the statute of limitations. However, Plaintiff\'s showing consists of assertions that Arce (1) “harassed Plaintiff by dismissing her injuries, ignoring her work restrictions, and ignoring her disability history” and (2) "remained very involved and in contact with partners at Location 53 because he remained employed at Cintas through Plaintiff’s termination, albeit at another location and by his own testimony, ‘[moved] roles back and forth a lot at Cintas.’” (Opposition, p. 14.) This fails to identify any conduct after October 23, 2016 which is sufficiently similar to Arce’s conduct before that time.

The only conduct identified within the statute of limitations would be (1) the false accusation of token manipulation and subsequent termination after a brief investigation and (2) the failure to investigate two alleged assaults by Perez. Plaintiff failed to articulate how a false investigation and pretextual termination would be “similar” to the alleged conduct by Arce, which consisted of essentially ignoring Plaintiff. The Court also fails to see how the failure to investigate physical assaults by a coworker are “similar” to ignoring Plaintiff’s work restrictions, even if the coworker accused Plaintiff of token manipulation. The events are dissimilar.

However, while Plaintiff does not make this argument, the court considered whether a continuing violation could be established only by evidence that Plaintiff continued to work without necessary work restrictions before and after October 23, 2016. In fact, Richards expressly supports this conclusion. Where the conduct has not acquired a degree of permanence, “[t]here is particularly good reason to view the failure over time to reasonably accommodate a disabled employee as a single course of conduct." (Richards, supra, 26 Cal.4th at 821.) A single “instance of an employer\'s failure to accommodate that in isolation may seem trivial can assume greater significance and constitute a greater injury when viewed as one of a series of such failures.” (Id. at 822.) As a result, many courts “have found a continuing violation for the entire course of the employer\'s unlawful conduct” in failing to accommodate an employee. (Id.)

Here, Plaintiff has provided sufficient evidence that Arce ignored her work restrictions before the statute of limitations period and, once Arce was replaced, Defendants similarly continued to ignore her restrictions until firing her in December 2016. This continuous failure to accommodate is a continuing violation, particularly when Arce’s conduct is viewed “as one of a series of such failures” extending back through 2004. (Id. at 822.) Indeed, when viewed in this context the conclusion that the conduct complained of “occurred with reasonable frequency” is inescapable. Defendants do not argue Arce\'s actions had acquired a degree of permanence.

The Motion is therefore DENIED on statute of limitations grounds.

Breach of Contract, Wrongful Termination Negligent Supervision

Arce argues the breach of employment contract, negligent supervision and wrongful termination claims against him fail because he is not an employer. (See, e.g., Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-1214 ("An employer may be liable to a third person for the employer\'s negligence in hiring or retaining an employee who is incompetent or unfit.”)) Plaintiff did not respond to this argument, instead asserting the claims are "sufficiently linked to unlawful conduct within the limitations period" notwithstanding that Arce did not raise the statute of limitations. Plaintiff has offered no evidence or authority indicating Arce was an "employer" so as to be liable for negligent supervision of employees. To the extent Plaintiff argues "Arce did not have training on reasonable accommodations or the interactive process and would not know how to manage such request for accommodation," this would not support a claim for negligent supervision, hiring and retention against negligently trained employee Arce, but against the employer itself. (Opposition, p. 16.) The claim therefore fails against Arce.

The Motion for Summary Judgment is GRANTED as to the causes of action against Richard Arce for breach of contract, wrongful termination and negligent supervision, hiring and retention. Arce carried his initial burden to show Plaintiff would not be able to establish an essential element of these claims—that Arce was responsible for employment decisions, i.e., was an employer. Arce could not have breached an agreement not to terminate Plaintiff without good cause because Arce did not terminate Plaintiff. For the same reason, Arce could not have wrongfully terminated Plaintiff. Negligent supervision claims hold an employer liable for failing to train and supervise employees. (Federico, supra, at 1214.) Plaintiff failed to offer any evidence regarding Arce’s employer status. Plaintiff therefore has not shown a triable issue of fact exists to defeat summary judgment.

IIED—Arce

Next, Arce argues the IIED claim fails because Plaintiff cannot establish extreme and outrageous conduct, merely "personnel management decisions." In response, Plaintiff argues Arce "intentionally failed to follow company policy" (AUMF 22-25) and "dismiss[ed] her injuries, ignor[ed] her work restrictions, ignor[ed] her disability history, and . . . wrongfully admonish[ed] her for unfinished work and a messy workstation." She argues he “did not need to act so callously in addressing her workplace injuries and restrictions.”

But Plaintiff does not address or rely upon any authority finding extreme or outrageous conduct in an employment context, nor does Plaintiff address Janken and other cases cited by Defendants concluding certain personnel management decisions cannot as a matter of law rise to the level of outrageous conduct. While some of the conduct alleged by other Defendants could arguably rise to the level of outrageous conduct (e.g., pretextual termination based on a faulty investigation), the failure to investigate a report of disability discrimination and admonishments for unfinished work do not as a matter of law constitute outrageous conduct. “Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) Even if Plaintiff contends Arce’s failure to investigate her injuries and work restrictions was intentional or in violation of company policy, “personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.” (Id.) “If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination”—not infliction of emotional distress. The claim therefore fails as pleaded against Arce.

Failure to Accommodate and Failure to Engage in Interactive Process

“A reasonable accommodation is a modification or adjustment to the work environment that enables the employee to perform the essential functions of the job he or she holds or desires.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.) “The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee\'s disability.” (Id.) “[A]ssuming the employee is disabled, the employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that (1) reasonable accommodation was offered and refused; (2) there simply was no vacant position within the employer\'s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.)

Cintas’s argument does not fall under any of these three approaches, instead arguing it in fact accommodated Plaintiff in accordance with her work restrictions. Cintas claims “it is undisputed that Cintas engaged in the interactive process and accommodated Plaintiff\'s alleged disability." (UMF 82.) But this fact is strongly disputed; Plaintiff contends she continued to work despite pain and further injury due to informal reprimands for lack of productivity, pressure from the token system, interference with her work restrictions by requesting she do work not within the restrictions, badgering for updated restrictions, and general nonresponsiveness of Defendants to her complaints regarding her disability. Plaintiff’s testimony indicates she performed work in excess of her work restrictions on a consistent basis despite recurring injuries and treatment. (See generally Vaquero Decl., para. 36-86 (discussing in detail Plaintiff’s work experience, injuries, treatments, and proposed work restrictions between 2006 and 2016.)) This is consistent with Plaintiff’s deposition testimony—though the Court has only the excerpts provided by Defendants. Given this, there is a triable issue of fact as to whether Defendants in fact accommodated Plaintiff’s work restrictions or merely did so nominally while pressuring Plaintiff in other ways to work outside and beyond those restrictions. A reasonable trier of fact could find the latter on the evidence presented.

This is clearly not a case where Defendants offered an accommodation which was refused, or a case where Cintas did “everything in [its] power to find a reasonable accommodation” but failed “because the employee failed to engage in discussions in good faith.” (Jensen, supra, at 263.) Nor is this a case where there “simply was no vacant position within the employer\'s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation”—Plaintiff’s Opposition addresses at length the availability of wrapout duties which would be less strenuous than her bulk department duties, but which were denied to her. Defendants’ argument fails to sufficiently address this point. In sum, the Motion is DENIED as to this claim because there is a triable issue of fact as to whether Defendants in fact accommodated Plaintiff and Defendants have not established entitlement to summary judgment under any Jensen prong.

Next, Cintas argues it is entitled to summary adjudication of the claim for failure to engage in the interactive process because "Plaintiff did not request a transfer to any different department nor did she request any type of changes with her job duties because of her pain or injuries.” Cintas’s position that Plaintiff never asked for accommodations is belied by the repeated submission of work restriction reports from Plaintiff’s doctor, at least some of which undisputedly were received by Cintas. It is not plausible to contend Plaintiff’s submission of proposed accommodations would not constitute a request for accommodations.

Further, Cintas’s position that Plaintiff was required to take further steps to initiate the interactive process beyond submitting work restrictions is unsupported by law. An employer has an \'affirmative duty\' to reasonably accommodate a disabled employee," i.e., an employee with a "known physical or mental disability." (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969; Gov. Code sec. 12940(m).) Upon submission of Plaintiff\'s work restrictions, which occurred at least twice after each surgery, Plaintiff had a "known physical . . . disability" which Defendants had an affirmative and "continuing" duty to at least attempt to accommodate. Defendants\' insistence that Plaintiff bore a further burden beyond providing proposed accommodations is contrary to law. Cintas therefore has not carried its initial burden by merely claiming Plaintiff did not request accommodations.

Failure to Prevent Harassment

Defendants argue they are entitled to summary judgment of this failure to prevent claim because they maintained anti-harassment training and policies, including a hotline for workplace complaints (Directline). At the outset, Defendants’ argument relies on the premise that summary adjudication of a failure to prevent claim can be obtained by producing evidence of anti-harassment policies. The Court does not agree. This premise is based entirely on Oliver v. Microsoft Corp. (N.D. Cal. 2013) 966 F.Supp.2d 889, an easily distinguishable (and non-binding) decision. The failure to prevent claim in that case "fail[ed] in the absence of a viable underlying claim" for harassment—as is often the case for failure to prevent claims. (Id. at 898.)

While the Oliver court found the plaintiff had not established a “triable issue of fact that the implementation and enforcement of [anti-harassment] policies were legally insufficient,” this is dicta given the conclusion that there was no underlying viable harassment claim, and the implication that plaintiff needed to show uneven enforcement of anti-harassment policies to defeat summary judgment is unsupported by any authority. Oliver is at most persuasive authority and for these reasons, the Court was unpersuaded by the Oliver court’s conclusion that the plaintiff needed to contest evidence of anti-harassment policies.

To the extent Defendants contend they "took all reasonable steps to prevent harassment given what [they] knew at the time," the reasonableness and sufficiency of the measures taken to prevent harassment present a question of fact for the jury. The mere existence of an anti-harassment policy or training measure is insufficient to demonstrate as a matter of law that the employer did not fail to prevent harassment. Moreover, Defendants did not carry their initial burden to show they responded to Plaintiff’s complaints of harassment. Defendants argue Plaintiff merely “assum[ed]” her complaint(s) regarding Perez’s assault(s) were not relayed to Juarez. But there is no evidence from which a trier of fact could conclude Plaintiff’s complaints were relayed. There is no evidence of any investigation or action taken, or testimony that the complaint was relayed. The only complaint allegedly resolved by Defendants was Plaintiff\'s objection to lifting mats in excess of her work restriction weight limits. It is unclear to the Court that this constituted a complaint of harassment, but in any event Defendants make no effort to address Plaintiff’s discussion of her complaint to Juarez, after which she was allegedly badgered for updated work restrictions she did not need or have. Defendants have not made a sufficient showing to carry the initial burden on summary judgment.

Breach of Contract

“Labor Code section 2922 establishes a presumption of at-will employment if the parties have made no express oral or written agreement specifying the length of employment or the grounds for termination. This presumption may, however, be overcome by evidence that despite the absence of a specified term, the parties agreed that the employer\'s power to terminate would be limited in some way, e.g., by a requirement that termination be based only on ‘good cause.’” (Foley vs. Interactive Data Corp. (1988) 47 Cal.3d 654, 677.) In Miller v. Pepsi-Cola Bottling Co. (1989) 210 Cal.App.3d 1554, 1559, the Court of Appeal concluded there was no triable issue of fact as to the existence of an implied-in-fact agreement not to terminate except for cause where (1) it was “uncontroverted that Pepsi had no established policies, written or unwritten, governing the termination of sales personnel”; (2) no “additional consideration [was provided by employee] . . . beyond the usual performance of his job”; and (3) the employee did not “receive[] repeated oral assurances of job security while employed by Pepsi.” (Id. at 1558-1559; compare Foley, supra, 47 Cal.3d at 680-82 (finding implied-in-fact contract sufficiently alleged where the plaintiff alleged “repeated oral assurances of job security and consistent promotions,” breach of written policies concerning termination of employees, and additional consideration via a non-compete agreement.))

Miller is on point here. Plaintiff does not claim she received any oral reassurances during her employment that she would not be fired except for good cause. Plaintiff does not claim she provided Defendants any additional consideration for what would otherwise be an unenforceable gratuitous promise to not fire absent good cause. Plaintiff has provided only the deposition testimony of HR Director Meyers agreeing that “there\'s a mutual agreement that arises from the conduct of the employees and their employer.” (Meyers Depo., 125:10-12.) Meyers’ opinion that a mutual agreement arises from the “conduct” of the parties appears to be a legal conclusion but in any event is insufficient to create a triable issue of fact as to the existence of an implied-in-fact contract. No reasonable trier of fact could, based on Meyers’ testimony alone, conclude the parties actually agreed to a further limitation. Indeed, Plaintiff herself was unaware of and could not have relied on Meyers’ opinion in the course of her employment, and there is no evidence of any other promise to her. This is not sufficient to support even a potential finding of an implied-in-fact contract.

CONCLUSION

The Motion for Summary Adjudication is GRANTED as to the causes of action against Arce for breach of implied-in-fact contract, intentional infliction of emotional distress, wrongful termination and negligent hiring and supervision. The Motion is GRANTED as to the cause of action for breach of implied-in-fact contract as stated against Defendants generally.

The Motion is DENIED as to the causes of action against Defendants generally for failure to accommodate, failure to engage in the interactive process, failure to prevent harassment, and DENIED as to each of the FEHA claims against Arce.

Defendants to give notice.

If counsel do not submit on the tentative, they are encouraged to appear remotely rather than in person.

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