Filed 3/26/13 Ramos v. Ralphs Grocery CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D060196
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2010-00088103- CU-OE-CTL) RALPHS GROCERY COMPANY, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego 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 not wrongful termination) based on age and national origin in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code,1
§ 12900 et seq.) and for intentional and negligent infliction of emotional distress.2
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
1 All statutory references are to the Government Code unless otherwise indicated.
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. 2 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, ante, 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
3 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
4 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,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
3 Ramos testified that customers often tipped him when he took groceries to their cars and during the holiday season. 5 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.4 As
relevant to the issues in this proceeding, 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
4 See footnote 2, ante. 6 (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
7 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
8 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
9 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)
10 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).
"Harassment based on age (Gov. Code, § 12940, 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
11 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,
12 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, supra, 52 Cal.3d at p. 20.)
"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
13 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.'
(Id. at p. 161.)
"Beagle v. Rite Aid Corp. (N.D. Cal. 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
Beagle, the district court concluded 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 Garcia-Barajas the plaintiff premised
his emotional distress claim on the employer intentionally exposing him to serious known
14 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 trial, such that the defendant is entitled to
judgment as a 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
15 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.
Ramos 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
16 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 129415 when it found 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, did not require Ramos to submit 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
5 Section 12941 provides in part: "The Legislature declares its intent that the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if use of that criterion adversely impacts older workers as a group, and further declares its intent that the disparate impact theory of proof may be used in claims of age discrimination." (Italics added.) 17 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.)6
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 negligent infliction of emotional
distress are preempted by the exclusivity provisions of the workers' compensation
law . . . ." (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 747; see also Shoemaker v.
6 In light of our decision, we deem it unnecessary to decide respondents' alternative contention that the alleged conduct by Meza was not severe enough or sufficiently pervasive to a reasonable person to create a hostile work environment and constitute harassment. 18 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'"].)
However, 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 Charles J. Vacanti, M.D., Inc. v. State 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
19 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 Fermino v. Fedco, Inc. (1994) 7 Cal.4th 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
20 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.