Case No.: 1-13-CV-254190

This is an action for wrongful termination based on age discrimination and retaliation. Plaintiff Sabin Lupan (“Plaintiff”) alleges that he was recruited to work for defendant International Rectifier Corp. (“IRC”) as a field applications engineer (“FAE”) where he would have opportunities to advance to senior positions. (See complaint, ¶ 7.) However, soon after he started, IRC froze the compensation of its FAEs, and Plaintiff was not assigned the positions or roles where he could use the skills for which he had been hired. (See complaint, ¶¶ 8-11.) Plaintiff raised concerns to IRC that he felt that IRC’s business practices were unethical, and thereafter, he was assigned to less desirable customer accounts. (See complaint, ¶¶ 12-17.) Plaintiff was eventually terminated. (See complaint, ¶¶ 19-23.)

On October 4, 2013, Plaintiff filed a complaint against defendants IRC and supervisor Adam White (collectively, “Defendants”), asserting causes of action for: wrongful termination in violation of public policy; violation of FEHA; failure to maintain workplace free of discrimination in violation of FEHA; and, intentional infliction of emotional distress. Defendants demurred to the fourth cause of action on the ground that it is preempted by the Workers’ Compensation Act and that Plaintiff has failed to state facts sufficient to constitute a cognizable claim. Defendant White also demurred to the first three causes of action; however, on February 25, 2014, Plaintiff filed a dismissal against White on the first three causes of action. Therefore, White’s demurrer to the first through third causes of action is MOOT, and the lone issue for the Court is the demurrer to the fourth cause of action for intentional infliction of emotional distress.

In opposition, Plaintiff asserts that “[i]t is well settled that violations of FEHA are not within the normal conditions of an employment relationship and are not subject to the workers compensation exclusive remedy.” (Pl.’s opposition to demurrer, p.4:5-13.) However, the first case to which Plaintiff cites, Livitsanos v. Super. Ct. (Continental Culture Specialists, Inc.) (1992) 2 Cal.4th 744, notes that if the defendants’ misconduct failed to exceed the normal risks of the employment relationship, that it would be a basis for sustaining a demurrer. Moreover, the cases to which Plaintiff cites predate Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, in which the California Supreme Court plainly stated that “[t]he alleged wrongful conduct, however, occurred at the worksite, in the normal course of the employer-employee relationship, and therefore workers’ compensation is plaintiffs’ exclusive remedy for any injury that may have resulted.” (Id. at p.902.) The Miklosy court further stated that “[a]s to the exception for conduct that “exceeds the risks inherent in the employment relationship,” it might seem at first blush to apply here—based on the argument that whistleblower retaliation is not a risk inherent in the employment relationship—but we rejected this same argument in Shoemaker v. Myers, supra, 52 Cal.3d at page 25.” (Miklosy, supra, 44 Cal.4th at p.903.) “Like plaintiffs here, the plaintiff in Shoemaker alleged whistleblower retaliation and also a Tameny cause of action, and although he incorporated these allegations as part of his claim of intentional infliction of emotional distress, we held workers’ compensation to be his exclusive remedy and affirmed the trial court’s dismissal of that cause of action.” (Id.) (See also Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832-833.)

“With respect to the requirement that a plaintiff show severe emotional distress, [the California Supreme C]ourt has set a high bar.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051 (also stating that “[l]iability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities”); see also Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001 (stating that “outrageous” conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilized community).) The fourth cause of action alleges conduct neither outside the normal course of the employer-employee relationship, nor sufficiently outrageous. Plaintiff in opposition fails to show how he might amend his complaint to otherwise allege a cognizable claim. (See Goodman v. Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff [or a defendant answering a complaint] must show in what manner he can amend his complaint [or answer] and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627, 636; see also Hendy v. Losse (1991) 54 Cal. 3d 723, 742 (stating that “the burden is on the plaintiff [or answering defendant]… to demonstrate the manner in which the complaint [or answer] might be amended”).) Accordingly, the demurrer to the fourth cause of action is SUSTAINED without leave to amend.

The Court will prepare the order. As no claims remain against Defendant Adam White, Defendant shall prepare a judgment of dismissal consistent with this order after Defendant has served notice of entry.