2017-00211374-CU-WT

Eric Hazzard vs. Raley’s

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Coyle, Daniel J.

Defendant Raley’s (“Defendant” or “Raley’s”) motion for summary judgment or, in the alternative, summary adjudication is ruled upon as follows.

This employment action arises from the termination of Plaintiff Eric Hazard’s employment. Plaintiff was employed as a Pharmacist in Charge at Raley’s South Lake

Tahoe Pharmacy. He was allegedly terminated on March 20, 2017, for filling family prescriptions unsupervised, checking himself out unsupervised, and failing to obtain management sign-offs for family member prescriptions and register receipts.

Plaintiff filed his complaint on April 21, 2017, against Raley’s and two other individual defendants who have been dismissed from the action. The Complaint alleges the following three causes of action: (1) FEHA/CFRA retaliation and harassment; (2) FEHA retaliation; and (3) failure to prevent harassment, discrimination, and retaliation.

Raley’s now moves for summary adjudication as to each cause of action and Plaintiff’s claim for punitive damages, and summary judgment based thereon.

Objections to Evidence

Raley’s objections to evidence numbers 6, 8, 11, 12, 18, 20, 21, 29, and 30 are OVERRULED. The Court need not rule and does not rule on Raley’s remaining objections to evidence. (See Code Civ. Proc. § 437c(q).)

Legal Standard

In evaluating a motion for summary judgment or summary adjudication the Court engages in a three step process. First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant’s motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, quoting C.C.P § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advance, Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, at 853-855.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make “an affirmative showing” in support of its motion. (See Aguilar, supra, at 854-855 n.23; Addy v Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (C.C.P. § 437c(p); see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327.) Plaintiff must produce “substantial responsive evidence that the employer’s showing was untrue or pretextual.” (Hersant v. California Dept. of Social Services (1997) 57 Cal. App. 4th 997, 1004-1105.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, at 843.)

Summary adjudication requires disposition of an entire cause of action or claim for damages. (Code Civ. Proc. § 437c(f)(1); Hindin v. Rust (2004) 118 Cal. App. 4th 1247, 1256.)

Material Facts Presented by Raley’s

Plaintiff worked in various capacities during his employment with Raley’s, but assumed his final position as a Pharmacist in Charge at Raley’s South Lake Tahoe pharmacy from 2012 until March 20, 2017. (UMF 1.)

Plaintiff reported directly to David Fluitt, Regional Pharmacy Supervisor, from 2012 until September 2016. Fluitt was promoted to Director of Pharmacy Operations, and Rajdeep Bhanver was promoted to fill Fluitt’s open position as Regional Pharmacy Supervisor in September 2016. During the relevant period in question, Plaintiff reported directly to Fluitt or Bhanver. (UMF 2.)

Connie Cummins was the Store Team Leader and Donna Finn was the Assistant Store Team Leader of the Raley’s South Lake Tahoe store. (UMFs 17, 24.)

Plaintiff’s son is totally disabled with Hydrocephales, a build-up of water in the brain, scoliosis, and paralysis. (AUMF 2.) Due to his son’s health, Plaintiff requested leave under FMLA/CFRA on two separate occasions. Plaintiff requested intermittent leave in October 2015 and November 2016. Both requests were timely granted. (UMF 8.) Raley’s issued a letter dated December 9, 2016, granting Plaintiff’s request through November 1, 2017. (UMF 8.)

Raley’s “Protocol for Filling Personal and Family Prescriptions” states:

“Whenever possible, pharmacists and technicians should never fill prescriptions for themselves or family members. If it is unavoidable and necessary for a personal prescription to be filled when no other pharmacist is available, have another employee initial the prescription and receipt. After hours prescriptions must have management initials on the prescription and receipt. At no time is any employee allowed to ring up a prescription for themselves or another family member. All prescriptions are to be rung up by another Raley’s Banner employee.” (UMF 6.)

Raley’s “Entry into the Pharmacy After Normal Business Hours” written policy states:

“Should it become necessary to enter the Pharmacy outside of normal business hours, the registered pharmacist, prior to entry, must notify the appropriate store manager on duty.

When applicable, the pharmacist must insure that the alarm company has been notified and let them know how long the pharmacist will be in the Pharmacy. Upon exiting the secured Pharmacy, the alarm company needs to be notified, the alarm reset and store management notified. Under Pharmacy law no one is allowed to enter the Pharmacy without a registered pharmacist present.” (UMF 7.)

On February 26, 2017, Plaintiff entered the pharmacy during non-operating hours, clocked in, and filled a prescription for his son. (UMFs 15, 17, 26.) Plaintiff informed Assistant Store Team Leader Finn that he had filled his son’s prescription during non-operating hours after the fact. (UMF 17.)

On March 1, 2017, Plaintiff entered the pharmacy during non-operating hours, clocked in, and worked for several hours filling backlogged prescriptions without authorization. (UMF 21.)

On March 4, 2017, during non-operating hours, Plaintiff filled prescriptions for his son and rang himself up without management supervision or sign-off. (UMFs 22, 27.)

Finn notified Store Team Leader Cummins about the February 26, 2017, incident once Cummins returned from vacation on March 2, 2017. (UMF 24.) Cummins, in turn, notified Human Resources Business Partner Michell Schroeder that same day. Schroeder contacted Bhanver and the two (Schroeder and Bhanver) undertook an immediate investigation on behalf of Raley’s. (UMF 24.)

During the investigation, the investigators obtained surveillance video footage, alarm logs, and cash register transaction logs detailing Plaintiff’s actions on February 26, 2017, March 1, 2017, and March 4, 2017. (UMF 25.) They also obtained witness statements from Finn and Cummins. (UMFs 26, 27.) Finn stated Plaintiff informed her after the fact that he had filled his son’s prescription during non-operating hours. (UMF 26.) Finn stated she did not authorize or sign-off on Plaintiff’s son’s prescription or receipt. (UMF 26.) Cummins reported she did not authorize Plaintiff to fill prescriptions for his son on March 4, 2017, nor did she know he would do so. Cummins stated she did not supervise or sign-off on Plaintiff’s son’s prescription or receipt. (UMF 27.)

The investigators met with Plaintiff on March 13, 2017, to discuss his conduct during the dates in question. (UMF 28.) During the meeting, the individuals discussed various Raley’s policies relating to Plaintiffs conduct. Plaintiff confirmed he entered the Pharmacy during non-business hours on February 26, 2017, to fill his son’s prescription, and rang himself up, without management supervision or sign-off. (UMF 28.) Plaintiff also admitted to working on March 1, 2017, without requisite authorization or notice to Raley’s. (UMF 28.) Plaintiff reported he also filled prescriptions for his son on March 4, 2017, and rang himself up, again without requisite management supervision or sign-off (UMF 28.) The Investigators placed Plaintiff on suspension pending Raley’s internal investigation into the matter, effective March 13, 2017. (UMF 29.)

The investigators determined that Plaintiff violated the following Raley’s policies: (1) filling personal and family prescriptions; (2) pharmacy entry after normal business hours; and (3) register procedures. (UMF 30.)

The investigation and determinations were presented to Fluitt for consideration. Fluitt

decided to terminate Plaintiff’s employment. (UMFs 30, 31.) Plaintiff met with Cummins on March 20, 2017, and was notified of his termination. (UMF 32.)

First Cause of Action – Retaliation and Harassment in Violation of FEHA/CFRA

Plaintiff couples two separate causes of action into his first cause of action: retaliation in violation of FEHA/CFRA and harassment in violation of FEHA/CFRA.

Retaliation

Plaintiff alleges he was subjected to retaliation in the form of: (1) Fluitt’s alleged comments and hostility; (2) suspension and investigation; and (3) termination. (UMF 1.)

To establish a prima facie case of retaliation in violation of CFRA, Plaintiff must show:

(1) Raley’s was an employer covered by CFRA; (2) Plaintiff was eligible to take leave pursuant to CFRA; (3) Plaintiff exercised his right to take a qualifying CFRA leave; and

(4) Plaintiff suffered an adverse employment action because of his exercise of his right to CFRA leave. (Cal. Govt. Code §§ 12945.1, 12945.2; Dudley v. Department of Transportation (2001) 90 Cal.App.4th 3 255, 261.)

Once an employee “establishes a prima facie case, the employer is required to offer a legitimate, non-retaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘drops out of the picture,’ and the burden shifts back to the employee to prove intentional retaliation.” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 885; Yanowitz, supra, 36 Cal.4th at 1042; McRae v. Cal. Dept. of Corrections & Rehab. (2006) 142 Cal.App.4th 377, 388.) To make this showing, Plaintiff must establish that Raley’s stated reason for his termination is unworthy of credence because it is “internally inconsistent or otherwise not believable.” (Chuang v. Univ. of Cal. (9th Cir. 2000) 225 F.3d 1115, 1127.) Plaintiff “must produce ‘specific’ and ‘substantial’ facts to create a triable issue of pretext.” (Godwin v. Hunt Wesson, Inc. (9 th Cir. 1998) 150 F.3d 1217, 1222.)

Plaintiff argues in opposition that “[a]n interference claim under the FMLA or CFRA does not require the [above discussed]… burden-shifting analysis.” Plaintiff contends a violation under the FMLA or the CFRA “simply requires that the employer deny the employee’s entitlement to FMLA/CFRA.” (Oppo. At 10:2-7.) While this may be accurate, Plaintiff’s first cause of action does not allege Raley’s interfered with his rights to take FMLA/CFRA leave. Plaintiff has alleged Raley’s retaliated against and harassed him because he exercised his rights to take CFRA leave. Accordingly, the standard proffered by Plaintiff is not applicable and the burden-shifting analysis applies.

Raley’s moves for summary adjudication on the grounds that Plaintiff cannot establish a prima facie case of retaliation and, even if he can, Raley’s has established a legitimate non-retaliatory reason for Plaintiff’s termination. In turn, Raley’s argues Plaintiff cannot establish pretext.

Raley’s contends it “justifiably investigated, suspended, and terminated Plaintiff’s employment due to gross violations of multiple company policies between February 26, 2017, and March 4, 2017.” (Memo. at 8:10-11.) In support, Raley’s cites to UMFs 1

-2, and 15-33.) Raley’s initiated an investigation on or about March 2, 2017, into Plaintiff’s February 26, 2017, incident wherein Plaintiff entered the pharmacy during non-operating hours and filled his son’s prescription without authorization. (UMF 24.) During the investigation, the investigators (Schroeder from HR and Bhanver, Plaintiff’s then direct supervisor) obtained surveillance video footage, alarm logs, and cash register transaction logs detailing Plaintiff’s actions on February 26, 2017, March 1, 2017, and March 4, 2017. (UMF 25.) They also obtained witness statements from Finn and Cummins. (UMFs 26, 27.) Finn stated Plaintiff informed her after the fact that he had filled his son’s prescription during non-operating hours. (UMF 26.) Finn stated she did not authorize or sign-off on Plaintiff’s son’s prescription or receipt. (UMF 26.) Cummins reported she did not authorize Plaintiff to fill prescriptions for his son on March 4, 2017, nor did she know he would do so. Cummins stated she did not supervise or sign-off on Plaintiff’s son’s prescription or receipt. (UMF 27.)

The investigators met with Plaintiff on March 13, 2017, to discuss his conduct during the dates in question. (UMF 28.) During the meeting, the individuals discussed various Raley’s policies relating to Plaintiffs conduct. Plaintiff confirmed he entered the Pharmacy during non-business hours on February 26, 2017 to fill his son’s prescription, and rang himself up, without management supervision or sign off. (UMF 28.) Plaintiff also admitted to working on March 1, 2017 6 without requisite authorization or notice to Raley’s. (UMF 28.) Plaintiff reported he also filled prescriptions for his son on March 4, 2017, and rang himself up, again without requisite management supervision or sign off (UMF 28.) The Investigators placed Plaintiff on suspension pending Raley’s internal investigation into the matter, effective March 13, 2017. (UMF 29.)

The investigators determined in good faith that Plaintiff violated the following Raley’s policies: (1) filling personal and family prescriptions; (2) pharmacy entry after normal business hours; and (3) register procedures. (UMF 30.) The investigation and determinations were presented to Fluitt for consideration. Fluitt decided to terminate Plaintiff’s employment. (UMFs 30, 31.) Plaintiff met with Cummins on March 20, 2017, and was notified of his termination. (UMF 32.)

Based on the foregoing, the Court finds Raley’s has established a legitimate, non-retaliatory reason for Plaintiff’s termination. The evidence cited by Plaintiff in an attempt to create a dispute regarding the foregoing does not create a dispute as to Raley’s basis for his termination. However, the Court finds Plaintiff has provided sufficient additional material facts to demonstrate the reasons were pretextual.

Specifically, Plaintiff presents the following evidence. When Plaintiff would request intermittent FMLA/CFRA days off, Fluitt would make disparaging comments to him, such as “you should not hide behind your son’s medical condition to not do your job,” “Again you are going out from work?” or “you have to work … there is no coverage.” (AUMF 6.) Plaintiff would then call all of the neighboring Raley’s and beg other pharmacists to cover his shift. (AUMF 6.) Plaintiff complained to Fluitt that he was entitled to immediate intermittent leave whenever he requested time off and often times Fluitt told Plaintiff “I don’t have coverage for you” or “Eric you are hiding behind your son’s disability.” (AUMFs 8, 10.) In late 2015, Plaintiff complained to Bonnie Wagner, Raley’s HR manager, about Fluitt’s rejections and feeling pressure by Fluitt not to utilize his intermittent leave. (UMF 9.) Fluitt was then informed by HR that any days off requested by Plaintiff had to be covered by Fluitt. (AUMF 30.) Fluitt continued to tell Plaintiff he needed to find coverage if he wanted to take leave. (AUMF 31.) Fluitt

felt that as Plaintiff’s leave requests became more and more frequent, the pharmacy was really struggling. (AUMF 24.) Plaintiff was the only pharmacist under Fluitt who was exercising FMLA/CFRA leave. (AUMF 33.)

As to Plaintiff’s alleged violation of the policy regarding entry after normal business hours, Fluitt testified he has never terminated a pharmacist for coming in early to work on back logged scripts and not notifying the store team leader. Fluitt testified he would not terminate a pharmacist for doing this and would be praiseworthy of him/her. (AUMF 26.)

As to Plaintiff’s alleged violation of the policy regarding filling personal and family prescriptions without authorization, Plaintiff contends Fluitt had sanctioned an unwritten policy for over 13 years allowing this conduct. Plaintiff contends Fluitt had informed him for years that filling a family member’s prescription and not having a third person review and sign-off on it was not prohibited. (AUMF 23.) Plaintiff also cites to evidence provided by Garnett Carlson, a pharmacist with Raley’s who has worked for the company for over 14 years. (AUMF 17.) According to Garnet Carlson, Raley’s had an unwritten policy of allowing pharmacists in the region on an emergency basis to open a closed pharmacy, fill out a family member’s prescription, and notify a grocery department supervisor of what had occurred, without fear of repercussions. Under the unwritten policy, a pharmacist could open the closed pharmacy without informing the store lead team member, and fill a prescription so long as no monies were transacted. This unwritten policy had been allowable for over 13, 14 years, and was in place at the time Plaintiff was suspended and terminated. (AUMFs 18, 38.) Carlson testified this unwritten policy had been sanctioned by Fluitt. (AUMF 36.)

Plaintiff reasons that all of the foregoing, taken together, “suggests sufficient evidence for a rational trier of fact to conclude that Raley’s tendered justification is mere pretext.” The Court agrees. A fact-finder could find that Fluitt’s comments about Plaintiff’s taking leave and that he would not terminate a pharmacist for coming in early without authorization to work on back logged prescriptions are evidence that Raley’s reasons for Plaintiff’s termination were pretextual. After all, Fluitt not only made the comments, he was the individual who made the ultimate decision to Plaintiff’s employment. ( Santiago-Ramos v. Centennial P.R. Wireless Corp. (1st Cir. 2000) 217 F.3d 46, 55 (one way to show pretext “is to show that discriminatory comments were made by the key decision maker or those in a position to influence the decisionmaker.”).) Further, a fact-finder could determine the reasons were pretextual because there was an unwritten policy that Plaintiff could fill his family members’ prescriptions on an emergency basis without authorization.

On reply, Raley’s contends UMFs 18 and 23 show, even if these unwritten policies existed, Plaintiff did not fill his son’s prescription as an emergency. UMFs 18 and 23 indicate Plaintiff could have gone to a different store (Store 127), which was three miles away from the South Lake Taheo Store, to have his son’s prescriptions filled, but he went to his store out of convenience. The fact that Plaintiff could have gone to another store does not indicate the situation was not an emergency. Accordingly, the Court is not persuaded this argument alters the finding of pretext.

Based on the foregoing, Raley’s motion for summary adjudication of Plaintiff’s first cause of action for retaliation in violation of FEHA/CFRA is DENIED.

Harassment

To prevail on a claim of hostile work environment harassment, an employee “must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees … .” (Miller v. Department of Corrections (2005) 36 Cal. 4th 446, 462.) Harassment that is “occasional, isolated, sporadic, or trivial” generally fails to meet this standard. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal. 4th 264, 283.) This standard contains both subjective and objective components. (Id. at 283-284.) “[A] plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff’s position, considering all the circumstances, would not share the same perception. Likewise, a plaintiff who does not perceive the workplace as hostile or abusive will not prevail, even if it objectively is so.” (Id. at 284.)

A hostile work environment claim must be evaluated in light of the totality of the circumstances, which may include “‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” (Miller, supra, at 462 (citations omitted).)

Plaintiff alleges Fluitt: (1) presented a hostile and resentful attitude towards Plaintiff’s request for leave; and (2) asked questions about Plaintiff’s son’s medical condition in a superficial manner. (UMF 42.) Plaintiff alleges Bhanver asked him about his own medical condition as well as his son’s and reduced his staff hours to make his job more difficult. (UMF 43.)

Raley’s contends this conduct, even if accepted as true, does not rise to the level of actionable harassment because it is based solely upon Plaintiff’s subjective perception of harassment. Plaintiff concedes Fluitt’s actions were based solely on his impression of Fluitt’s attitude towards Plaintiff taking leave. (UMF 44.)

As to Bhanver, Raley’s contends the reduction of staffing hours cannot form the basis for harassment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 879 (“necessary personnel management actions such as hiring and firing, job project assignments . . . the provision of support . . . and the like, do not come within the meaning of harassment.”) Here, Bhanver reduced the Pharmacy’s staffing hours due to legitimate business restrictions on the Pharmacy’s labor budget. (UMF 45.) As to Bhanver’s questions about Plaintiff’s and his son’s medical condition, Plaintiff volunteered the information. (UMF 46.) Plaintiff does not dispute any of the foregoing.

In opposition, Plaintiff makes no argument as to why Bhanver’s alleged conduct rises to the level of actionable harassment. Bhanver’s actions are not addressed whatsoever and the Court finds Bhanver’s alleged conduct does not rise to the level of actionable harassment.

As to Fluitt, Plaintiff argues the facts in support of his FEHA harassment claim include:

“1. Hazzard complained to Fluitt that he was entitled to immediate Intermittent FMLA leave whenever he requested time off for his sick son. Often times, Fluitt told Hazzard “I don’t have coverage for you.” Hazzard missed one of Andrew’s medical appointments in the spring of 2016 due to Fluitt’s refiasal to provide FMLA leave, fri early 2015, Fluitt told Hazzard, “Eric you are hiding

behind your son’s disability.” (UMF 8)

2. Whenever, Plaintiff sought to utilize intermittent FMLA, Fluitt would state, “Again you are going out from work.” On other occasions, Fluitt would just refuse Plaintiffs request to take his son to the hospital or visit him there. Other times, Fluitt stated, “you have to work … there is no coverage.” Hazzard would then have to call all of the neighboring Raley’s and beg other pharmacists to cover his shift. (UMF 10)”

Even accepting the foregoing allegations as true, the Court agrees with Raley’s that it does not rise to the level of actionable harassment. The alleged responses by Fluitt to Plaintiff’s requests for leave are not sufficiently severe or pervasive “to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees … .” (Miller, supra, at 462.) While the comments were clearly perceived by Plaintiff as hostile, his subjective perception is insufficient. The Court is not persuaded that a reasonable person, in Plaintiff’s position, considering all the circumstances, would perceive the comments so hostile or abusive to create a hostile work environment.

Based on the foregoing, Raley’s motion for summary adjudication of Plaintiff’s first cause of action for harassment in violation of FEHA/CFRA is GRANTED.

Second Cause of Action – Retaliation in Violation of FEHA

To establish a prima facie case of retaliation under FEHA, a plaintiff must show: (1) she engaged in a “protected activity;” (2) the employer subjected the employee to an adverse employment action; and (3) a causal link existed between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Once an employee establishes a prima facie case, the employer is required to offer a legitimate, non-retaliatory reason for the adverse employment action. (Ibid.) If the employer produces a legitimate reason for the adverse employment action, “the presumption of retaliation drops out of the picture and the burden shifts back to the employee to prove intentional retaliation.” (Ibid.)

Plaintiff alleges Raley’s retaliated against him by suspending and initiating an investigation against him and terminating his employment. (UMF 42.) Raley’s contends Plaintiff’s claim fails because he cannot establish a causal connection between his request for FMLA/CFRA leave and any personnel action taken against him and even assuming he could, Raley’s has established a legitimate, non-retaliatory reason for its personnel actions. Raley’s contends Plaintiff’s own admissions, in part, as well as direct witness observations, pharmacy alarm logs, and cash register logs prove Plaintiff violated company policy on February 26, 2017, March 1, 2017, and March 4, 2017. (UMFs 24-30.) Raley’s then argues Plaintiff cannot establish pretext.

For the same reasons discussed above, the Court finds Raley’s has established a legitimate, non-retaliatory reason for the adverse employment action. However, also for the same reasons discussed above, the Court finds Plaintiff has sufficiently established a triable issue of material fact regarding pretext.

Based on the foregoing, Raley’s motion for summary adjudication of the second cause of action for retaliation in violation of FEHA is DENIED.

Third Cause of Action – Failure to Prevent Retaliation, Harassment, or Discrimination

In order for Plaintiff to prevail on a claim for failure to prevent discrimination, harassment, or retaliation under FEHA, Plaintiff must demonstrate actionable discrimination, harassment, or retaliation in the first place. (See Trujillo v. North County Transit. Dist. (1998) 63 Cal. App. 4th 280, 289.)

Raley’s argues Plaintiff’s failure to prevent claim fails because Plaintiff cannot establish his retaliation or harassment claims. Because the Court denied summary adjudication as to the first and second causes of action for retaliation, it also DENIES summary adjudication as to Plaintiff’s dependent “failure to prevent” cause of action.

Punitive Damages

Raley’s contends Plaintiff’s punitive damages claim fails because he cannot prove, by clear and convincing evidence, that an officer, director or managing agent of Raley’s committed an act of oppression, fraud, or malice, or that a managing agent of Raley’s had knowledge of and authorized or ratified such conduct. (Civ. Code § 3294.)

Plaintiff relies solely upon Fluitt’s actions to support his claim for punitive damages. (UMF 35.) Plaintiff alleges Fluitt engaged in the following malicious conduct: (1) allegedly stating that Plaintiff should not hide behind his son’s disability to avoid performing his job in or around January 2015 (the “January 2015 comment”); and (2) Fluitt’s alleged hostile attitude towards Plaintiff due to Plaintiffs request for leave. (UMF 36.)

Raley’s then argues Fluitt did not have authority, discretion, or control to create, alter, or deviate from Raley’s policies in January 2015. Had Fluitt done so, he would have been subject to disciplinary action, up to and including termination. (UMF 51.) Further, Fluitt never served as an officer or director for Raley’s. (UMF 52.)

In opposition, Plaintiff contends there is a triable issue as to whether Fluitt is a managing agent. Plaintiff presents Fluitt’s testimony wherein he stated that in his present position as Director of Pharmacy Operations he does “change policy.” (AUMF 42, 43.)

A managing agent is one who exercises substantial discretionary authority of significant aspects of a corporation’s business. (See White v. UltraMar (1999) 21 Cal.4th 563, 577; see id. at 576-577 [“[P]rincipal liability for punitive damages [does] not depend on employees’ managerial level, but on the extent to which they exercise substantial discretionary authority over decisions that ultimately determine corporate policy”] [brackets added].) The authority must influence formal corporate policies affecting a substantial portion of the business, and thus must be broad enough to support punishing the corporation itself. (See Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 714-715.)

While Fluitt may not have had sufficient authority in January of 2015 to change corporate policies, he testified that in his role as Director of Pharmacy Operations he does, in fact, “change policy.” A fact-finder could determine Fluitt, therefore, is a managing agent of Raley’s. Further, despite Raley’s contentions whether or not Fluitt had such authority in 2015 does not fully inform the Court’s determination. Plaintiff basis his claim for punitive damages not only on the January 2015 comment, but also

on Fluitt’s general hostile attitude towards Plaintiff due to Plaintiff’s request for leave, which Plaintiff alleges ultimately resulted in Fluitt deciding to terminate his employment.

Raley’s then argues, even if Fluitt were an officer, director, or managing agent, there is no evidence Fluitt acted with malice, oppression, or fraud because malice requires “despicable conduct.” “Malice” under Civil Code §3294(c)(1), however, means conduct intended to injure the plaintiff or despicable conduct by the defendant with a willful and conscious disregard of others. Raley’s does not address whether Plaintiff can establish Fluitt’s conduct was intended to injure Plaintiff. Based on the full discussion abive, it appears there is a triable issue of fact as to whether or not a fact-finder could determine that such intent was present.

Raley’s motion for summary adjudication of Plaintiff’s claim for punitive damages is DENIED.

Conclusion

Raley’s motion for summary judgment is DENIED as the Court did not grant the summary adjudication as to each cause of action.

Raley’s motion for summary adjudication of the first cause of action for retaliation in violation of FEHA/CFRA, second cause of action for retaliation in violation of FEHA, and claim for punitive damages is DENIED.

Raley’s motion for summary adjudication of Plaintiff’s first cause of action for harassment in violation of FEHA is GRANTED.

The minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.