Case Name: Saucedo v. Victoria’s Secret Stores Brand Management, Inc., et al.
Case No.: 2013-1-CV-248689

Defendants Victoria’s Secret Stores, LLC and Retail Store Operations, Inc. (“VSS”) Shawn Thompson (“Thompson”) and Amy Germain (“Germain”) (collectively, “Defendants”) move for summary judgment, or in the alternative, summary adjudication in their favor and against plaintiff Leticia Saucedo (“Plaintiff”).

After full consideration of the evidence, authorities and separate statements submitted by the parties, the Court makes the following rulings:

Defendants’ motion for summary judgment, or in the alternative, summary adjudication, is GRANTED. With regard to the first cause of action for disability discrimination, as a threshold matter, as pleaded in the Complaint, the first cause of action is asserted against only VSS and not Germain and Thompson. Consequently, though Defendants are correct as a general matter that an aggrieved individual has no FEHA claim against individual supervisors or coworkers who discriminate against him or her (see Reno v. Baird (1998) 18 Cal.4th 640, 645), this argument by Defendants is ultimately of no consequence.

Turning to VSS’s other arguments asserted in connection with its request for summary adjudication of this claim, “[o]n a disability discrimination claim, the prima facie case requires the plaintiff to show he or she (1) suffered from a disability, or was regarded as suffering a disability; (2) could perform the essential duties of the job with or without reasonable accommodations [i.e., was qualified to do the job]; and (3) was subjected to an adverse employment action because of the disability or perceived disability. [Citation.]” (Wills v. Superior Court (1995) 195 Cal.App.4th 143, 159-160.) VSS first argues that Plaintiff cannot establish a prima facie case of disability discrimination because she was not a qualified individual due to the fact that she was not performing competently in her role as Store Manager. This assertion, however, demonstrates a misunderstanding on the part of VSS as to the meaning of “a qualified individual” under FEHA for the purposes of establishing a prima facie case of disability discrimination. As Plaintiff notes in her opposition, FEHA’s requirement that a disabled employee be “qualified” refers only to limitation(s) on job performance caused by the employee’s disability. (See Green v. State of California (2007) 42 Cal.4th 254, 262-263.) In reference to this requirement, FEHA does not prohibit an adverse action based on disability “if the disability renders the employee unable to perform his or her essential duties, even with reasonable accommodation.” (Id., at 264.)

Here, VSS has presented no evidence that Plaintiff’s anxiety rendered her unable, even if reasonably accommodated, to perform the essential duties of her job, including accurate time-keeping, to the extent that such an action is essential, which VSS has also not demonstrated. In short, it is not enough for VSS to say that Plaintiff cannot establish a prima facie case of discrimination because she failed to perform certain functions of her job. The question is whether she could or not, and not whether she actually did, with or without reasonable accommodations. Thus, this argument does not provide a basis for adjudication in VSS’s favor on the first cause of action.

With its second argument, however, VSS meets its initial burden on the motion on Plaintiff’s claim for disability discrimination by demonstrating that it had a legitimate, non-discriminatory reason for terminating her employment- namely, she edited her own time and attendance records in violation of company policy and procedure. (UMF Nos. 40, 42, 44.) It is well established that terminating an employee for violating company policy constitutes a legitimate, non-discriminatory reason for an employee’s discharge. (See, e.g., Tomada v. Home Depot U.S.A., Inc. (N.D. Cal. 2014) 2014 WL 2538792, *11-12.) Having submitted evidence of the foregoing, VSS meets its initial burden on this cause of action and the burden therefore shifts to Plaintiff who, in order to defeat summary adjudication with respect to this claim, must “demonstrate a triable issue by producing substantial evidence that [VSS’s] stated reasons [for her termination] were untrue or pretextual, or that [VSS] acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or otherwise unlawful action.” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 553 [internal citations omitted].)

The Court finds that Plaintiff has failed to demonstrate that VSS’s stated reason for terminating her employment was untrue or pretextual. Plaintiff concedes that Fogarty, who made the ultimate decision to terminate her, had no knowledge of her anxiety disorder, the effects of the medication she was taking for that condition, and her expressed desire to take a stress leave. (Fogarty Decl., ¶ 12.) While asserting that Thompson “orchestrated” her termination because of her disability, Plaintiff ultimately presents no evidence which demonstrates that Thompson acted with any discriminatory animus towards her or that that the reason offered for her termination lacks credence.

Given Plaintiff’s failure to establish that VSS’s stated reason for firing her was pretextual, VSS’s request for summary adjudication of the first cause of action for disability discrimination is granted.

With regard to the second cause of action for failure to accommodate, VSS meets its initial burden by demonstrating that Plaintiff never actually requested a reasonable accommodation. Plaintiff concedes in her opposition that the two telephone conversations with Thompson in which she mentioned thinking about a stress leave do not, by themselves, trigger any duty on the part of VSS to initiate the interactive process or provide her with a reasonable accommodation because she never referred to her underlying medical condition. Nevertheless, she insists that those duties were triggered because “Thompson was well aware, and in fact investigating, a complaint from one of [Plaintiff]’s managers that [Plaintiff] had begun showing up later for work” and he “hardly had to be a rocket scientist to surmise that a connection probably existed between [Plaintiff]’s expressions of interest in a stress leave and the irregular times that she was starting her work shifts, i.e., that [her] stress was sufficiently great to impair her ability to begin work as scheduled.” (Plt’s Opp., 15:22-16:1.) Plaintiff continues that even assuming, for the sake of argument, that no duties arose in April on the part of VSS to accommodate her, they did at the May 1st meeting where she explained why she was working irregular times.

Plaintiff’s contentions are unavailing. It is undisputed that Plaintiff never expressly requested a leave of absence due to her anxiety condition during the May 1st meeting with Thompson, Germain and Fogarty. (UMF No. 39.) Where there has been no request for an accommodation, Courts decline to find liability for failure to accommodate under FEHA. (See Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.) While it is true, as set forth above, that employers who are aware of an employee’s disability have an affirmative duty to make reasonable accommodations for such disability, even if no accommodation has been requested by that individual (see 2 Cal. Code. Regs § 11068, subd. (a); see Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 949-950), Thompson was not aware during those conversations, and subsequent to them when he was investigating the complaint about Plaintiff’s work attendance, that she suffered from an anxiety disorder, and to assume that he would have inferred that Plaintiff was suffering from a qualifying disability because she’d mentioned that she’d been thinking about taking a stress leave and he was aware that she had some attendance issues is a leap unsupported by evidence or case authority.

Given the foregoing, Plaintiff has failed to raise a triable issue of material fact in connection with her failure to accommodate cause of action. Accordingly, VSS’s request for summary adjudication of this claim is granted.

Summary adjudication of Plaintiff’s third cause of action for failure to engage in the interactive process is warranted because VSS submits evidence demonstrating that Plaintiff cannot establish all of the necessary elements of this claim, particularly that she requested a reasonable accommodation for her disability so that she would be able to perform the essential functions of her job. As articulated above, Plaintiff did not inform Thompson of her disability during her phone conversations with him when she mentioned having thoughts about taking a stress leave, and she never requested that she be permitted to take such a leave during the May 1st meeting with Thompson, Germain and Fogarty. Plaintiff has not demonstrated a triable issue in this regard, and therefore summary adjudication in VSS’s favor is proper.

As for the fourth cause of action, a claim for intentional infliction of emotional distress exists when there is “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard for the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) To recover on this claim, the employer’s actions must be “so extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Alcorn v. Anbro Eng., Inc. (1970) 2 Cal.3d 493, 497-499.)
Here, Plaintiff has not set forth conduct by Defendants which qualifies as “extreme and outrageous.” Firing an employee by itself does not constitute “outrageous” conduct, even if the firing was without cause. (Buscemi v. McDonnell Douglas Corp. (9th Cir. 1984) 736 F.2d 1348, 1352 [applying California law].) Moreover, personnel management activity, even when an improper motivation is alleged, is insufficient by itself to support a claim for intentional infliction of emotional distress. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) The authorities cited by Plaintiff in her opposition which purport hold to the contrary do not so hold and are otherwise distinguishable, with the court evaluating whether a claim for infliction of emotional distress was precluded by the “exclusivity rule” relating to workers’ compensation benefits. With Plaintiff having failed to identify extreme and outrageous conduct on the part of Defendants, summary adjudication of this claim is appropriate.

Finally, with respect to Plaintiff’s final cause of action, as Defendants note in their papers, there is no independent tort of negligent infliction of emotional distress; rather, negligent infliction claims are a species of negligence. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.App.4th 965, 984; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 818.) The elements of such a claim are: (1) the defendant engaged in negligent conduct (involving usual issues of duty and breach); (2) the plaintiff suffered “serious” emotional distress; and (3) the defendant’s negligent conduct was a substantial factor in causing the emotional distress suffered by the plaintiff. (See CACI No. 1620; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) Consistent with the argument raised by Defendants, courts have rejected claims for negligent infliction of emotional distress resulting from employment termination because the employer’s supervisory conduct is inherently intentional, not negligent. (See, e,g., Semore v. Pool (1990) 217 Cal.App.3d 1097, 1105 [“It is clear … that there was no duty not to discharge defendants and that any actions by the employer were intentional, not negligent.”]; see also Edwards v. United States Fid. & Guar. Co. (N.D. Cal. 1994) 848 F.Supp. 1460, 1466 [applying California law] [“where the conduct is intentional, it cannot be used as the basis for a negligent infliction of emotional distress claim”].) Thus, Defendants meet their initial burden with respect to this claim.

In opposition, Plaintiff does not address this cause of action in any capacity, thereby impliedly conceding the merits of Defendants’ argument. Consequently, she fails to raise a triable issue and therefore Defendants’ request for summary adjudication of this claim is granted.