Case Name: Rotolo v. Banc of America Merchant Services, LLC
Case No.: 16CV300246

Defendant Bank of America Merchant Services, LLC (“Defendant” or “BAMS”) moves for summary adjudication of various claims asserted by plaintiff Linda Rotolo (“Plaintiff”).

I. Background

A. Factual

This is an action for employment discrimination, wrongful termination, and various violations of the Labor Code. According to the allegations of the operative Second Amended Complaint (“SAC”), Plaintiff began working for Defendant, a merchant services company that primarily assists businesses in handling debit and credit card transactions, in April 2012 as a merchant sales specialist. (SAC, ¶ 18.) Plaintiff alleges that her salary was materially lower than the salaries of similarly-situated male employees, with the latter making $55,000 to $65,000, and that she never received periodic and performance-based salary increases as others did. (Id. ¶ 20.) She further alleges that BAMS’ managers made disparaging remarks to her and older employees and expressed a desire to replace them with younger, male workers. (Id., ¶ 23.)

In November 2014, Plaintiff and Defendant became embroiled in a dispute regarding commissions and deductions made from those commissions; Plaintiff objected to these deductions and continued to raise the issue with her superiors. (SAC, ¶ 24.) BAMS retaliated against Plaintiff for her objections, withholding leads, opportunities and other employment benefits from her. (Id., ¶ 25.)

On July 20, 2015, BAMS terminated Plaintiff’s employment, explaining that her position was being eliminated in a reduction in force. (SAC, ¶ 26.) Plaintiff alleges that this was a pretext for unlawful discrimination and that she was replaced by several younger men of inferior experience. (Id., ¶ 27.)

After obtaining a right to sue letter and having given BAMS notice of her intention to file a complaint, Plaintiff sent Defendant a confidential settlement communication. (SAC, ¶¶ 29-32.) Plaintiff further requested for the parties to execute a tolling agreement in order to preserve her rights. (Id., ¶ 32.) Defendant indicated a desire to informally resolve Plaintiff’s complaints and represented that they did not believe that a tolling agreement was required. (Id., ¶ 34.)

The parties subsequently exchanged numerous communications regarding seeking alternative methods of resolving their dispute. (SAC, ¶¶ 35-41.) BAMS purportedly engaged in conduct that led Plaintiff to believe that it would not be necessary to file a lawsuit, and did not sign a tolling agreement as requested by Plaintiff. (Id. at ¶ 41.) Plaintiff relied on Defendant’s conduct and therefore did not file her complaint until September 22, 2016. The operative pleading, the SAC, was filed on June 19, 2017 and asserts the following causes of action: (1) sex discrimination; (2) age discrimination; (3) wage discrimination on the basis of sex (violation of Labor Code § 1197.5); (4) failure to prevent discriminatory practices; (5) retaliation (violation of Labor Code § 98.6); (6) wrongful termination; (7) unlawful deduction from wages (violation of Labor Code § 221); (8) failure to pay accrued vacation compensation (violation of Labor Code §§ 201, 203, 216, 218.5 and 227.3); (9) failure to reimburse business expenses (violation of Labor Code § 2802; (10) waiting time penalties (violation of Labor Code §§ 201, 202 and 203); (11) failure to provide accurate wage statement (violation of Labor Code § 226); (12) unlawful business practices (Business & Professions Code § 17200); (13) violation Private Attorneys General Act of 2004 (“PAGA”) (violation of Labor Code § 2698, et seq.); (14) intentional infliction of emotional distress; (15) negligent infliction of emotional distress.

On August 22, 2019, BAMS filed the instant motion for summary adjudication. Plaintiff opposes the motion.

B. Procedural

II. Defendant’s Motion for Summary Adjudication

With the instant motion, BAMS seeks summary adjudication of fourteen of the fifteen causes of action asserted in the SAC- i.e., all but the fifth cause of action for retaliation in violation of Labor Code § 98.6.

A. Legal Standard

1. General Burden of Proof on Summary Judgment/Adjudication

“A defendant seeking summary judgment [or adjudication] must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 [internal citations omitted].)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, Cal. Prac. Guide; Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 10:241, p. 10-104, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “The moving party’s declaration and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (opposing party’s) favor.’” (Id., ¶ 10:241.20, p. 10-105, citing Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion).” (Id., ¶ 10:242, p. 10-105, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) “Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id.)

2. Summary Judgment/Adjudication in Employment Discrimination Actions

Though not all of the claims asserted in this action are predicated on the FEHA, the bulk of this action is based on alleged discrimination that Plaintiff suffered at the hands of her former employer, Defendant.

In reviewing motions for summary judgment or adjudication in employment discrimination cases, California courts employ the burden-shifting formula articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (King v. United Parcel Service (2007) 173 Cal.App.4th 426, 433, fn. 2; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 173 Cal.App.4th 986, 1004.) Under McDonnell Douglas, the plaintiff bears the burden of establishing a prima facie case of discrimination, and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. (Mixon v. Fair Employment and Housing Commission (1992) 192 Cal.App.3d 1306, 1318.)

“A defendant employer’s motion for summary judgment slightly modifies the order or these [McDonnell Douglas] showings. [Citation.]” (Scotch, supra, 173 Cal.App.4th at 1005.) To prevail on its motion for summary judgment, the defendant employer “is required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for the decision to terminate the plaintiff’s employment [or whatever other adverse employment action].” (Avila v. Continental Airlines, Inc. (2000) 165 Cal.App.4th 1237, 1247 [internal citations omitted].) The elements for a discrimination claim based on the failure to hire are: (1) the plaintiff belongs to a protected category (racial minority, suffers from a disability, etc.); (2) the plaintiff applied and was qualified for a job which the employer was seeking applicants; (3) the plaintiff was rejected despite his or her qualifications; and (4) the position remained open and the employer continued to seek applicants from persons of plaintiff’s qualification. (McDonnell Douglas Corp., supra, 411 U.S. at 802.)

“If the employer has met its burden by showing a legitimate reason for its conduct, the employee must demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 553 [internal citations omitted].) “Speculation cannot be regarded as substantial responsive evidence.” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) “Further, an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons.” (Guz, supra, 24 Cal.4th at 360-361.) “[E]ven where the plaintiff has presented a legally sufficient prima facie case of discrimination, and has also adduced some evidence that the employer’s proffered innocent reasons are false, the fact finder is not necessarily entitled to find in the plaintiff’s favor.” (Id. at 361-362,) “For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.” (Id. at 362.)

B. Analysis

1. Sex Discrimination (1st Cause of Action)

In the first cause of action, Plaintiff alleges that she suffered discrimination on the basis of her sex, to wit: her salary was materially lower than that received by similarly situated male employees, and further, BAMS, through various supervisors, made a number of comments to and about her that “exhibited motivations, intentions, and consciousness” which constitute discrimination based on sex. (SAC, ¶ 47.) She maintains that her termination was based on such discrimination. BAMS argues that it is entitled to summary adjudication of this claim because (1) Plaintiff cannot establish a prima facie case of discrimination based on her sex; (2) BAMS had a legitimate, non-discriminatory reason for terminating Plaintiff’s employment and compensating her as it did; and (3) Plaintiff has no evidence of pretext.

Per the materials submitted by BAMS, Plaintiff became an at-will employee of the company on April 9, 2012, at the age of forty-five. (BAMS’ Separate Statement of Undisputed Material Facts in Support of Motion for Summary Adjudication (“UMF”), Nos. 3, 5, 9.) Plaintiff was employed as a Merchant Sales Specialist in the Small Business Sales division and at the time of her hiring, was directly supervised by Danilo Chang. (UMF Nos. 3, 10.) Plaintiff was supervised by Dileep Surapaneni from 2012 to September 12, 2014 and then by Tony Gonzalez from December 2014 through the end of her employment on July 20, 2015. (UMF Nos. 11, 12.)

According to BAMS, in the summer of 2015 it initiated a reduction in force (“RIF”) in order to improve company efficiency. (UMF No. 53.) In order to achieve a reduction in expenses, it was determined that over 100 positions would be eliminated. (Id.) BAMS’ executive team compiled a list of associates who were among the lowest performers (i.e., bottom 10%) in their respective groups and would be considered for position elimination. (UMF No. 54.) The BAMS’ executive team, along with the regional sales managers and human resources, reviewed the list line by line to determine who on the list would be terminated, and considered factors such as performance, length of employment and leaves of absence taken. (UMF No. 55.)

After reviewing the performance date for the region, Plaintiff was determined to have been in the bottom 10% of the Silicon Valley group and was placed on the list for consideration of position elimination. (UMF Nos. 56, 57.) The category given the most weight when determining the bottom 10% was total revenue. (Id.) The executive team ultimately collectively decided to terminate 30 individuals within the Small Business Metro Group (Plaintiff’s Group) and 5 within the West region (Plaintiff’s region). (UMF No. 58.) So no team would be left severely understaffed, the position eliminations were spread amongst the San Francisco Metro, Arizona, San Diego, Las Vegas and Silicon Valley group. (Id.) Plaintiff was determined to be the lowest performer in the Silicon Valley group and thus her position was eliminated and her employment terminated on July 20, 2015.

Based on the SAC and information obtained in discovery, it is Plaintiff’s positon that she was discriminated against because of her sex based on the following: (1) her salary was materially lower than similarly situated male employees; (2) she was told by her then-supervisor, Dileep Surapaneni (“Surapaneni”), on approximately 10 occasions from 2013-2014, that she did not fit the build of a salesperson and that a salesperson should be young and male; (3) she had banking centers taken away from her because of her gender; and (4) a younger male was hired three weeks after her termination. (UMF Nos. 32-33.)

a. Prima Facie Case

BAMS first argues that Plaintiff cannot establish a prima facie case of sex discrimination, which requires a plaintiff-employee to establish the following: (1) she is a member of a protected group; (2) she was subjected to an adverse employment decision; (3) she was qualified for the position; and (4) she was replaced by a person outside the protected class, or similarly situated non-protected employees were treated more favorably.” (Vincent v. Brewer (6th Cir. 2007) 514 F.3d 489, 494.) In particular, BAMS argues that Plaintiff cannot establish that she suffered an adverse employment action because of her sex, i.e., that there was a causal connection between her sex and any of the adverse actions she claims to have suffered. Plaintiff’s attempt to establish this connection is based on disparate treatment that she allegedly suffered.

In attempting to demonstrate that Plaintiff cannot establish a prima facie case of sex discrimination, BAMS first disputes her assertion that she had banking centers/opportunities taken away from, arguing that she lacks evidence establishing that she suffered such an adverse action, and submitting evidence which it claims undercuts her allegation. According to BAMS’s evidence, in May 2015, Plaintiff had six banking centers assigned to her. (UMF No. 42.) A Merchant Sales Associate/Business Consultant such as Plaintiff receives referrals from a number of different sources, including partnered Bank of America banking centers. (Id.) Plaintiff’s banking centers had monthly referral opportunities totaling seventy-six. (Id.) At that time, there were fourteen business consultants actively employed in Plaintiff’s group, the Silicon Valley Group. (UMF No. 43.) Plaintiff had as many or more banking centers than ten of her colleagues in her group, four of which were male. (Id., ¶ 44.) She also had as many or more referrals than seven of her colleagues in her group, three of whom were male. (Id., ¶ 45.) Thus, BAMS explains, Plaintiff was not treated differently from similarly situated male employees in this regard.

BAMS next addresses the salary issue, submitting evidence that as of June 1, 2015, there were fifty-eight business consultants employed in the west region, including Plaintiff. (UMF No. 35.) The base salary range for these individuals was $35,000 to $50,000, and Plaintiff’s salary at the time of her hiring, based on her education level and prior work experience, fell in the middle of the range for individuals with equal work in the region. (UMF Nos. 37-38.) Seventeen of the male business consultants earned a base salary less than Plaintiff and eighteen of them earned a base salary that was more than hers. (UMF No. 39.) Consequently, BAMS explains, Plaintiff cannot establish that similarly-situated male employees received higher salaries than her as alleged.

Finally, BAMS challenges the notion that Plaintiff was replaced by a person outside the protected class she belongs to, i.e., a (younger) man. According to BAMS, Plaintiff has admitted that she has no personal knowledge that she was replaced by a younger man within three weeks of her dismissal as she claims. With this argument, BAMS also appears to be arguing that Plaintiff lacks evidence which shows that she was replaced by a man. A party moving for summary judgment/adjudication can meet its initial burden by demonstrating that a plaintiff cannot establish a necessary element of his claim by presenting evidence that the plaintiff “does not possess and cannot reasonably obtain, needed evidence.” (Aguilar, supra, 25 cal.4th at 866.) Such evidence usually consists of admissions by the plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action, but can also be met by factually devoid discovery responses where there has been an adequate opportunity for discovery. (Id. at 848; see also Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) Critically, it is not enough for a defendant to merely show that the plaintiff has no evidence on a key element of his or her claim; that defendant must also produce evidence showing that the plaintiff cannot reasonably obtain the evidence to support that claim. (See Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) In short, a defendant cannot merely assert that a plaintiff cannot establish a particular thing; he must back up that assertion with evidence.

BAMS’ showing does not completely establish that Plaintiff lacks the necessary evidence to show that she was replaced by a younger man or cannot obtain it. Plaintiff merely testified at her deposition that individuals at her banking center- John Bui and Tony Delara- had advised her, approximately three weeks after her termination, that they had met her “replacement” and he was young and male. (UMF No. 46.)

In any event, with respect to its own showing, BAMS explains that three individuals were hired into the Silicon Valley group in late 2015, when the company’s financial condition had improved. (UMF No. 47.) The first was hired on September 21, 2015, to replace an employee who had voluntarily left the month prior, the second and third were hired in late November/early December, respectively, as the company began looking toward an increased 2016 revenue goal and needed to increase its headcount to accomplish that after the RIF. (UMF Nos. 47-50.) All three of these individuals, hired as business consultants, the same position as Plaintiff, were men. Because of the fact that all of these individuals were men and their hirings took place a relatively short period of time after Plaintiff’s termination, BAMS does not establish that Plaintiff was not replaced by men and therefore is unable to establish this element of the prima facie showing. Consequently, BAMS is not entitled to summary adjudication of this cause of action based on its contention that Plaintiff cannot establish a prima facie case of sex discrimination.

b. Legitimate, Non-Discriminatory Reason for Adverse Actions

BAMS continues that even if Plaintiff can establish a prima facie case of sex discrimination, the resulting presumption of discrimination disappears because it had legitimate, non-discriminatory reasons for compensating her the way that it did and for terminating her employment.

With respect to the compensation issue, BAMS reiterates that Plaintiff’s base salary was in the middle range for the business consultants in the Silicon Valley group. (UMF Nos. 13, 36-39.) BAMS evidence shows that Plaintiff’s claim that similarly situated male employees were making $55,000 to $65,000 is unfounded and inaccurate.

As for Plaintiff’s termination, BAMS submits evidence that it was the result of a RIF initiated in the summer of 2015, when the company restructured in order to improve its efficiency. (UMF Nos. 53-61.) According to this evidence, and as explained above, a list of associates who were among the lowest performers (i.e., bottom 10%) was gathered and discussed, and reviewed line by line to determine who would have his or her employment terminated. (UMF Nos. 56-59.) Total revenue was the category given the most weight when determining which employees were the lowest performing. (UMF No. 56.) After reviewing performance data for the region and considering whether any individuals were newly hired and had not had time to build their business record or had taken leaves of absence, Plaintiff was determined to be in the bottom 10% of her group and was placed on the list. (Id.) The executive ultimately decided to terminate 30 individuals within the Small Business Metro Group (Plaintiff’s group) and 5 within the West Division (Plaintiff’s division). (UMF No. 58.) The position eliminations were spread amongst the division so that no team would be left severely understaffed. (Id.) Because Plaintiff was the lowest performer in her group, her position was eliminated. (UMF No. 60.)

The foregoing showing by BAMS is sufficient to demonstrate that it had legitimate, non-discriminatory reasons for terminating Plaintiff’s employment. Consequently, any inference of discrimination raised by Plaintiff’s prima facie case is dispelled and the burden shifts to her establish that BAMS stated reasons for terminating her- that she was the lowest performer in her group and her position was eliminated as part of a RIF- was a pretext for discriminating against her on the basis of her sex. The burden therefore shifts to Plaintiff.

c. Pretext

The burden is on Plaintiff to “demonstrate a triable issue by producing substantial evidence that [BAMS’] stated reasons [for her termination or other adverse actions] were untrue or pretextual, or that [BAMS] 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].) Generally, a plaintiff can prove pretext either (1) indirectly, by showing that the employer’s proffered explanation is unworthy of credence (e.g. because it is internally inconsistent or otherwise unbelievable); or (2) directly, by showing that unlawful discrimination more likely motivated the employer. (Raad v. Fairbanks North Star Borough School Dist. (9th Cir. 2003) 323 F.3d 1185, 1194.) An inference of intentional discrimination cannot be drawn, however, solely from proof that the employer’s stated reasons are unworthy of belief: “The pertinent statutes do not prohibit lying, they prohibit discrimination.” (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 361.)

Plaintiff argues that she has evidence of pretext, which can be summarized as follows: (1) BAMS deviated from its own policies and procedures, with Plaintiff not only not being the lowest performer, but not having received a written warning or having been placed on a disciplinary action at the time of her termination; (2) BAMS did not investigate Plaintiff’s claim for wage theft and retaliation; (3) there are inconsistencies and contradictions in BAMS’ explanation for Plaintiff’s termination; (4) Plaintiff’s direct manager, Surapaneni, made comments to Plaintiff that she did not fit the build of salesperson and the company needed to hire younger men who did fit that build; (5) Plaintiff was treated differently than other employees; (6) Plaintiff was performing satisfactorily in her job, in contrast to later assertions that she was a low performer; and (7) Plaintiff’s termination was temporally close to her engaging in protected conduct- particularly in November 2014 – by raising her concerns with superiors over how the company was recouping commissions. Each of these will be discussed below.

Plaintiff first suggests that BAMS deviated from its own policies and procedures in the manner in which it terminated her employment, having not issued her a written warning or having placed her on disciplinary action prior to that point in time. But Plaintiff does not offer evidence which establishes what the relevant policies and procedures were or how BAMS deviated from them. Moreover, because Plaintiff was supposedly let go in a RIF, it is not entirely clear to the Court whether the presence of prior warnings or disciplinary action would be material as she was not being fired directly for poor performance. Consequently, no evidence of pretext is provided by Plaintiff with regard to a potential deviation by BAMS from its own policies and procedures.

Next, Plaintiff argues that pretext can be gleaned from the fact that BAMS did not investigate her claims of wage theft and retaliation. A significant portion of Plaintiff’s lawsuit is her assertion that BAMS improperly recouped commissions earned by her and that BAMS retaliated against her for questioning the company’s compensation/incentive plans. According to Plaintiff, she received so-called PCI bonuses in 2012 and 2013. (Declaration of Linda Rotolo in Support of Opposition to Motion for Summary Adjudication (“Rotolo Decl.”), ¶ 29.) PCI is a fee that is charged to individual merchants when they sign up for merchant services. (UMF No. 22.) In December 2014, Plaintiff did not receive a PCI bonus and was later informed that BAMS had changed the requirements for a business consultant to qualify for such a bonus. (Rotolo Decl., ¶¶ 30, 32.) Plaintiff was confused because the company incentive plan from January 2014 did not reflect such prerequisites, nor did the revised version provided in July. (Id., ¶ 33.) From December 2014 to July 2015, Plaintiff purportedly complained to BAMS’ management regarding its new PCI policy. It is difficult for the Court, however, to ascertain from the materials presented by Plaintiff when she contacted superiors to complain, how she contacted them, and how frequent her complaints were. Some of this difficulty is due to the Court’s inability to read the materials provided, with various typewritten documents (including email communications) barely legible. Thus, it is not clear to the Court what specific complaints/grievances were received by BAMS and how those were dealt with such that Plaintiff’s assertion that the company did not investigate her claims of wage theft and retaliation have merit.

Moreover, even if it is true that the company did not investigate such claims, the connection between this failing and Plaintiff allegedly being terminated and/or otherwise treated differently because of her sex is not apparent to the Court. Consequently, Plaintiff’s argument that pretext can be gleaned from the fact that BAMS did not investigate her claims of wage theft and retaliation is unavailing.

Plaintiff also asserts that there are inconsistencies and explanations in BAMS’ explanation for her termination. She states that BAMS has explained that she was terminated due to a RIF, but asserts that in none of the termination conversations she had with Defendant did it mention to her that her performance had anything to do with her termination. But BAMS has not argued that it terminated Plaintiff because she was not performing well in her job; rather, she was terminated due to a RIF and her performance, and those of all other employees, was considered in order to determine which positions would be eliminated as part of that RIF. Plaintiff submits no evidence that she was told she was being terminated for reasons other than a RIF. She therefore fails to establish pretext based on the notion of shifting reasons being given for her termination.

Plaintiff next maintains that pretext can be gleaned from comments made by her one-time supervisor, Surapaneni. According to Plaintiff’s evidence, during the time Surapaneni was her direct supervisor from 2012 to August/September 2014, the following occurred: (1) Surapaneni told Plaintiff that “you can’t teach an old dog new tricks”; (2) Surapaneni told Plaintiff that she did not fit the mold of a salesperson on ten occasions, insinuating that a young man with no experience and poor performance was the correct fit; and (3) Surapaneni pointed out a male sales representative younger than Plaintiff and stated “that is how a sales representative should look- young and well dressed.” (UMF No. 51; Declaration of Linda Rotolo in Support of Opposition to Motion for Summary Adjudication (“Rotolo Decl.”), ¶ 17.)

The problem with the foregoing, however, is that Surapaneni was not Plaintiff’s supervisor when she was terminated, and in fact did not even work for the company at that time, with his employment with BAMS having ended on September 12, 2014, nearly a year prior. (UMF No. 62.) Discriminatory remarks by someone who was not the decisionmaker and who was not involved in the adverse employment decision are usually not admissible to prove a discriminatory motive by the employer. (See, e.g., Long v. Teachers’ Retirement System of State of Ill. (7th Cir. 2009) 585 F.3d 344, 351; see also Williams v. Williams Electronics, Inc. (7th Cir. 1998) 856 F.2d 920, 924.) Plaintiff does not allege that anyone other than Surapaneni made comments about her age, nor that he treated her differently, outside of the comments, with regards to her job and opportunities provided (or not provided) to her. (UMF No. 52.) Surapaneni’s comments therefore do not evidence pretext on the part of BAMS with regard to its explanation for her termination.

Plaintiff also insists that she was treated differently than other associates, explaining that she was the only business consultant that was terminated from the entire Western Region of BAMS to due to the RIF. Even if this is true, this does not, without more, establish that Plaintiff was discriminated against. Moreover, BAMS submits evidence that a total of five positions, including Plaintiff’s, were eliminated in the west region. (UMF No. 58)

Next, Plaintiff insists that she was performing in a satisfactory manner when she was terminated and that any suggestion that she was a poor performer is “revisionist history.” But BAMS has not argued that Plaintiff was a poor performer, generally; rather, that she was the lowest performer in her group. Plaintiff challenges this characterization, insisting that others on her team actually performed below her. She names those individuals and cites to various lists produced by BAMS in response to production requests propounded by Plaintiff, but does not explain the meaning of those lists or how they compare to the lists purportedly prepared by BAMS to determine what positions would be eliminated in the RIF. That is, it is not clear how the performance metrics cited by Plaintiff relate to the methodology used by BAMS to determine the order of performance by their employees in relation to the RIF. Because of this, Plaintiff has not demonstrated that she performed better than other individuals using BAMS’ methodology or otherwise shown that BAMS’ methodology lacks credence and that she was not the lowest performer in her group. Consequently, no pretext has been demonstrated by Plaintiff with the foregoing argument.

Finally, Plaintiff maintains that pretext is shown based on the timing of her termination relative to when she engaged in protected activity, i.e., complained about commission deductions by BAMS. While such timing may have a bearing on Plaintiff’s retaliation claim (fifth cause of action) (see, e.g., Passantino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000) 212 F.3d 493, 507), which is not the subject of the instant motion, it does not establish that the explanation proffered by BAMS was a pretext for discriminating against Plaintiff on the basis of her sex. Plaintiff otherwise offers no evidence establish animus towards her by BAMS on the basis of her gender.

In sum, Plaintiff has failed to demonstrate a triable issue by producing substantial evidence that BAMS’ stated reason for terminating her employment and/or treating her differently during the course of that employment were untrue or pretextual, or that BAMS acted with a discriminatory animus, such that a reasonable trier of fact could conclude that Defendant engaged in intentional discrimination or otherwise unlawful action. Accordingly, given that BAMS met its initial burden, its request for summary adjudication of the first cause of action is GRANTED.

2. Age Discrimination (2nd Cause of Action)

The second cause of action is predicated on the allegation that Plaintiff’s termination was motivated, at least in part, by her age. (SAC, ¶ 55.) As with the preceding cause of action, BAMS contends that it should be granted summary adjudication of this cause of action for the following reasons: (1) Plaintiff cannot establish a prima facie case of discrimination based on her age; (2) BAMS had a legitimate, non-discriminatory reason for terminating Plaintiff’s employment and compensating her as it did; and (3) Plaintiff has no evidence of pretext.

a. Prima Facie Case

BAMS first argues that Plaintiff cannot establish a prima facie case of age discrimination, which requires a plaintiff-employee to establish the following: (1) at the time of the adverse employment action she was 40 years of age or older; (2) an adverse employment action was taken against the employee; (3) at the time of the adverse action the employee was satisfactorily performing his or her job; and (4) the employee was replaced in her position by a significantly younger person. (Hersent v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1002-1003.)

In her opposition, Plaintiff maintains that the burden-shifting test of McDonnell Douglas is not even implicated with respect to her age discrimination claim because she has direct evidence of BAMS’ discriminatory intent towards her, i.e., evidence that proves animus without inference or presumption. This evidence consists of the statements made allegedly by Surapaneni, which are set forth above. The problem with these statements, as explained previously, is that Surapaneni was not a decisionmaker. (UMF No. 62.) Consequently, his remarks are not admissible to prove a discriminatory motive by BAMS. (See, e.g., Long v. Teachers’ Retirement System of State of Ill. (7th Cir. 2009) 585 F.3d 344, 351; see also Williams v. Williams Electronics, Inc. (7th Cir. 1998) 856 F.2d 920, 924.)

Although BAMS argues that Plaintiff cannot establish a prima facie case of age discrimination, other than asserting that Surapaneni’s statements carry no weight with regards to her termination because was not involved in the decision to terminated her employment, it otherwise does not touch on any of the elements required to make such a showing and explain how Plaintiff cannot meet them. Thus, because BAMS has not demonstrated that Plaintiff cannot make a prima facie showing of age discrimination, it is not entitled to summary adjudication of this claim on this basis.

b. Legitimate, Non-Discriminatory Reason for Adverse Actions

BAMS does, however, meet its initial burden by demonstrating, as it did in connection with the preceding cause of action, that it had a legitimate, non-discriminatory reason for terminating Plaintiff’s employment: her employment was terminated as a result of a RIF initiated in the summer of 2015 to improve the company’s efficiency. (UMF Nos. 53-61.) Accordingly, the burden shifts to Plaintiff to demonstrate by substantial evidence that the reason given by BAMS for her termination is untrue or pretextual or that its actions against her were motivated by discriminatory animus.

c. Pretext

Plaintiff submits the same arguments regarding pretext to this claim as she did for the preceding cause of action for sex discrimination. None establish pretext or discriminatory animus for the reasons discussed above. Moreover, at no point is there any discussion by Plaintiff of the ages of the individuals who allegedly replaced her after she was terminated, only that they were men. Plaintiff therefore fails to demonstrate by substantial evidence that the reason given by BAMS for her termination is untrue or pretextual or that its actions against her were motivated by discrimination on account of her age. Therefore, as BAMS has met its initial burden on this cause of action, its request for summary adjudication is GRANTED.

3. Wage Discrimination (Violation of Labor Code § 1197.5) (3rd Cause of Action)

In the third cause of action, Plaintiff alleges that she was treated less preferably than similarly situated make BAMS employees who performed equal work and discriminated again her by subjecting her to discriminatory pay, denial of bonuses and other compensation incentives and denial of advancement opportunities/promotion. (SAC, ¶ 60.) BAMS maintains that summary adjudication of this claim in its favor is warranted because Plaintiff’s allegations are demonstratively false.

Labor Code section 1197.5 (“Section 1197.5”), subdivision (a), provides in relevant part that “[a]n employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates” that the wage differential is based upon one or more of the following factors: “(A) A seniority system[;] (B) A merit system[;] (C) A system that measures earnings by quantity or quality of production[;] (D) A bona fide factor other than sex, such as education, training, or experience. …” As the statute originally mirrored the Federal Equal Pay Act of 1963 (see 29 U.S.C. § 206, subd. (d)(1)), California courts rely on federal authorities construing the federal statute in interpreting the EPA. (See Green v. Par Tools, Inc. (2003) 111 Cal.App.4th 620, 623.) Few California cases address the EPA: “The apparent reason is that an aggrieved employee generally brings suit under both the California statute and the federal Equal Pay Act …, or under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (a)) or its federal counterpart, Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.).” (Ibid.)

The three-stage burden shifting analysis used to establish sex discrimination under the federal Equal Pay Act is applied to a claim under Section 1197.5. (See Green v. Par Tools, Inc., supra, 111 Cal.App.4th at pp. 623-626 [analogizing to the “McDonnell Douglas” burden shifting analysis applied in Title VII and FEHA cases].) Under this standard, once the plaintiff makes a prima facie showing in support of her claim, “the employer then has the burden of showing that one of the exceptions listed in section 1197.5 is applicable.” (Ibid.) The employee may then show that the employer’s stated reasons are pretextual. (Ibid.)

The elements of a prima facie case under the EPA are (1) the employer paid a male employee more than a female employee (2) for equal (or, since 2016, substantially similar) work on jobs the performance of which requires equal skill, effort, and responsibility, and (3) which are performed under similar working conditions. (Green v. Par Pools, Inc., supra, 111 Cal.App.4th at p. 628, citing Corning Glass Works v. Brennan (1974) 417 U.S. 188, 195; CACI No. 2740 (2019).) To make this prima facie showing, a plaintiff must ultimately demonstrate that she is paid lower wages than an appropriate “male comparator” for equal work. (Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 324-325.) An EPA plaintiff “need only establish that she was paid less than a single male employee for equal work on the basis of sex to prevail on her claim” and “need not establish a pattern and practice of sex discrimination.” (Dubowsky v. Stern, Lavinthal, Norgaard & Daly (D.N.J. 1996) 922 F.Supp. 985, 990-991.)

Here, BAMS meets its initial burden because demonstrates that Plaintiff cannot establish a prima facie case of wage discrimination because it submits evidence which shows that similarly situated male employees were not paid more than her. (UMF Nos. 35-39.) This evidence is discussed in greater detail above in connection with first cause of action for sex discrimination. The burden therefore shifts to Plaintiff to raise triable issues of material fact with regard to the issue of unequal compensation. Plaintiff fails to do so. Accordingly, BAMS’ request for summary adjudication of the third cause of action is GRANTED.

4. Failure to Prevent Discrimination (4th Cause of Action)

In the fourth cause of action, Plaintiff alleges that BAMS failed in its affirmative duty to take all reasonable steps necessary to prevent discrimination on the basis of sex from occurring in violation of the FEHA. (SAC, ¶ 67.)

Under the FEHA, an employer who “knows or should have known of unlawful harassment and retaliation, and fails to take immediate and appropriate corrective action, may be liable for the resulting damages ….” (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880, citing Gov. Code, § 12940, subd. (j)(1); see also Gov. Code, § 12940, subd. (k) [stating that it is an unlawful employment practice for an employer to “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring”].) “When a plaintiff seeks to recover damages based on a claim of failure to prevent discrimination or harassment, she must show three essential elements: (1) plaintiff was subjected to discrimination, harassment, or retaliation; (2) defendant failed to take all reasonable steps to prevent discrimination, harassment or retaliation; and (3) this failure caused plaintiff to suffer injury, damage, loss or harm.” (Lelaind v. City & County of San Francisco (N.D. Cal. 2008) 576 F.Supp.2d 1079, 1103.)

BAMS asserts that it is entitled to summary adjudication of this claim because Plaintiff’s preceding causes of action for age and gender discrimination fail. Indeed, no action for failure to prevent lies if no harassment or discrimination has actually taken place. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286.) Therefore, BAMS request for summary adjudication of the fourth cause of action is GRANTED.

5. Wrongful Termination (6th Cause of Action)

In the sixth cause of action, Plaintiff alleges termination of her employment was motivated, at least in part, by her age and therefore said termination was unlawful and violated public policy. (SAC, ¶¶ 78-82.) BAMS maintains that this claim fails because the preceding discrimination claims fail.

A claim for wrongful discharge in violation of public policy requires a plaintiff to prove (1) that he was employed by the defendant, (2) the defendant discharged him, (3) a violation of public policy was a motivating reason for the discharge, and (4) the discharge caused him harm. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641.) This claim is essentially derivative of the preceding claims for discrimination based on the FEHA and portions of the Labor Code, as it is based on the exact same conduct. (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [where a claim for wrongful discharge in based on the anti-discrimination policy embodied in the FEHA, the tort claim is essentially derivative of any underlying FEHA cause of action alleged in the complaint]; see also Le Bourgeois v. Fireplace Mfg. (1998) 68 Cal.App.4th 1049, 1060, fn. 14.) It follows that because summary adjudication of those claims is warranted, it is also warranted for Plaintiff’s wrongful termination claim. (Id. [explaining that if a FEHA cause of action is found to lack merit, it necessarily follows that the tort claim for wrongful discharge also lacks merit].) Consequently, BAMS’ request for summary adjudication of this cause of action is GRANTED.

6. Unlawful Deduction of Wages (Violation of Labor Code § 221) (7th Cause of Action)

In the seventh cause of action, Plaintiff alleges that BAMS unlawfully deducted wages from her by “recouping” commissions that she had already earned. (SAC, ¶ 86.) Labor Code section 221 (“Section 221”) provides that “[i]t shall be unlawful for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee.” (See Hudgins v. Neiman Marcus Group, Inc. (1995) 34 Cal.App.4th 1109.) Wages are defined broadly to include “all amounts for labor performed.” (See Harris v. Investor’s Business Daily, Inc. (2006) 138 Cal.App.4th 28, 40.) Plaintiff maintains that she is entitled to $12,280.50 for commissions deducted from March 1, 2014 to July 31, 2015, with $5,030.50 of that amount recouped commissions and the remaining $7,250 PCI compliance bonuses. (UMF Nos. 16-17.) As stated above, PCI is a fee that is charged to individual merchants when they sign up for merchant services. (UMF No. 22.)

BAMS insists that summary adjudication of this claim is warranted because (1) no deductions were taken from Plaintiff after commissions became earned and (2) Plaintiff expressly approved that chargebacks/recoups could be made.

According to BAMS, in addition to an annual base salary, Plaintiff had the opportunity during her employment to earn incentive compensation which was summarized in a commission plan that specified how commissions were to be paid and in what instances unearned commissions would be recouped. (UMF Nos. 14-15, 19-20.) Relevant provisions of the commission plan included the following:

 “[L]ease incentive is paid when the equipment is deployed, however, it is not earned until all requirements of the lease are met, and four payments are made” (UMF No. 19);
 “BAMS is contractually obligated to buy back leases that default within the first four payments” (Id.);
 “Leases which are bought back by BAMS between 5 and 12 payments will be recouped at 50% of the commission and 50% of the revenue credited” (Id.);
 “These recoups are generally approved by an RSM or SAE and are bought back for courtesy or retention reasons” (Id.);
 As to recoups after month four, “six months after activation, the location is tested to determine if processing volumes are less than $21,000 year to date. If the location fails testing, then revenue credit and commissions will be recouped” (Id.)
 Commissions are not earned (even if advanced) until after month four. (UMF Nos. 19-20.)

While Section 221 prohibits the recapture of wages already earned or paid, “where the parties so understand and agree, final compensation, or at least a portion thereof, may be contingent on events that occur after the employee has performed service, and even where he or she has already received advance sums.” (Prachasaisoradej v. Ralphs Grocery Co., Inc. (2007) 42 Cal.4th 217, 239.) Further, an employee who receives both wages and sales commissions may agree in writing to a chargeback against commissions for commissions advanced by the employer if the sale later falls through (e.g., the customer returns the merchandise). (Steinhebel v, Los Angeles Times Communications (2005) 126 Cal.App.4th 696, 705.) This is because “[a]n advance … by definition is not a wage because all conditions for performance have not been satisfied.” (Id.) If the commission is fully earned at the time of sale, however, and the employee has not agreed in writing to the chargeback, a commission chargeback is unlawful. (Harris v. Investor’s Business Daily, Inc. (2006) 138 Cal.App.4th 28, 41.)

BAMS argues no deductions were taken after commissions became earned and that Plaintiff’s claim stems from her incorrect belief that her commissions were earned after the first payment was made by the customer, when in fact they were not earned (even if advanced) until after month four. (UMF Nos. 18-20.) It further argues that Plaintiff misunderstands PCI incentives, explaining that prior to 2014 BAMS charged PCI as a one-time fee, but in 2014 changed PCI to be able to include the fee in the monthly charge for services to merchants. (UMF No. 22.) Thus, BAMS states, Plaintiff was not entitled to a one-time PCI incentive at the end of 2014 as such incentive was being paid out as commission from recurring revenue throughout the 2014 calendar year.

BAMS submits evidence that upon her hiring and during each subsequent year of employment, Plaintiff received an incentive plan that specified how commissions would be paid to her and in what instances unearned commissions would be recouped, and electronically acknowledged and agreed to these terms. (UMF Nos. 14-15.) The evidence submitted by BAMS shows that the incentive plans contained all of the aforementioned terms regarding when commissions were earned and possible recoupment of amounts paid and that Plaintiff expressly agreed to them. Thus, as set forth by BAMS, its commission policy appears to comply with Section 221, because Plaintiff agreed in writing that BAMS could make chargebacks against commissions advanced to her. Because Plaintiff’s claim appears to be predicated on the belief that no commissions could be recouped from her, when in fact they could be in certain circumstances because she agreed, BAMS meets its initial burden on this claim by demonstrating that it was lawfully permitted to recoup commissions advanced to Plaintiff that were not fully earned pursuant to the terms of the company’s policy.

In opposition, Plaintiff fails to demonstrate the existence of triable issues with respect to the legality of BAMS’ commission policy and the assertion that BAMS recouped commissions that she actually earned as determined by the terms of that policy. Plaintiff asserts that she contested recoupment of a commission earned because BAMS’ incentive plan provided that “Technology deployed the first four days of the month are counted with the prior month revenue and payout; this helps align technology credit with approvals.” (UMF Nos. 18-21.) However, it is not clear to the Court how the foregoing establishes that BAMS unlawfully recouped from Plaintiff commissions that she had already earned, especially with Plaintiff not addressing the particular terms of BAMS’ commission policy that define the point at which a commission is earned and establishing that those terms were met but commissions were nonetheless recouped from her.

Plaintiff also fails to establish that the new PCI policy did not comply with Section 221. Plaintiff maintains that BAMS’ incentive plans were frequently modified, with the company randomly changing how it enforced those plans throughout the year. Plaintiff explains that she does not take issue with the plans themselves, but rather how BAMS utilizes and enforces plan changes throughout the year. It is not clear to the Court how BAMS’ enforcement of its plan(s) violates Section 221, if it all. If the plans complied with Section 221, the Court does not understand how the mere fact that BAMS frequently changed the terms of those plans results in liability under this particular code section. Thus, Plaintiff has not demonstrated the existence of a triable issue of material fact with regard to her seventh cause of action and consequently BAMS’ request for summary adjudication of this claim is GRANTED.

7. Failure to Pay Accrued Vacation Compensation (Violation of Labor Code §§ 201, 203, 216, 218.5 and 227.3) (8th Cause of Action)

Plaintiff’s eighth cause of action is predicated on allegations that BAMS maintained a “use it or lose it” vacation policy which required employees to take vacation days or lose them after a maximum number have accrued in violation of Labor Code section 227.3 (“Section 227.3”). (SAC, ¶ 93.) Plaintiff further alleges that Defendant willfully failed to pay her for vested vacation time she had accrued at the time of her termination, also in violation of Section 227.3. BAMS argues that it is entitled to summary adjudication of this cause of action because Plaintiff was never denied an opportunity to take vacation, its vacation policy complied with applicable Labor laws and her final paycheck included payment for unused, vested vacation time.

Section 227.3 requires an employer to pay an employee for vested, unused vacation time upon separation of employment, and precludes an employer from providing for the forfeiture of vested vacation time upon termination. In this vein, vacation pay is treated the same as all other forms of compensation at termination. (Labor Code, §§ 201, 202.) An employment agreement may place a legitimate “cap” on accrual of vacation pay after which no further vacation will accrue. (See Boothby v. Atlas Mechanical, Inc. (1992) 6 Cal.App.4th 1595, 1602-1603.)

According to the evidence submitted by BAMS, during Plaintiff’s employment it maintained a vacation policy whereby it set a maximum number of days that an associate in California (and Montana) could accumulate, and when the associate met that maximum, no additional days would be added until the associate used some of the previously accrued days. (UMF Nos. 26-27.) At the end of each year, the associate’s accrued or unused vacation would carry over into the next year, and additional vacation time would accrue only when the total vacation balance was less than the maximum annual vacation allotment. (Id.) BAMS submits evidence showing that as an employee with less than five years of service, Plaintiff’s maximum annual vacation allotment was two weeks or 80 hours, and that her final paycheck included payment of 83.33 hours of vacation time. (UMF Nos. 28- 29.) This evidence is sufficient to meet BAMS’ initial burden on this cause of action because it demonstrates that Defendants paid Plaintiff for her vested, unused vacation time- the maximum two weeks- upon her termination in accordance with Section 227.3. The burden therefore shifts to Plaintiff to raise a triable issue of material fact.

Plaintiff does not address this claim in her opposition, nor dispute in her separate statement that she received payment for her vested, unused vacation time upon her termination. Thus, she impliedly concedes that her claim has no merit and fails to raise a triable issue of material fact. Consequently, BAMS’ request for summary adjudication of the eighth cause of action is GRANTED.

8. Failure to Reimburse Business Expenses (Violation of Labor Code § 2802) (9th Cause of Action) and Waiting Time Penalties (Violation of Labor Code §§ 201, 202 and 203) (10th Cause of Action)

In her ninth cause of action, Plaintiff alleges that she incurred “reasonable and necessary expenses in the course of completing her job duties, which were not reimbursed by [Defendant]. These expenses include but are not limited to cell phone costs.” (SAC, ¶ 100.) Plaintiff alleges that she is entitled to reimbursement of these expenses pursuant to Labor Code section 2802 (“Section 2802”). (Id., ¶ 101.) In her tenth cause of action, Plaintiff alleges that she is owed waiting time penalties for BAMS failure to pay the foregoing amounts immediately upon her termination. (Id., ¶¶ 108-109.)

Section 2802, subdivision (a), provides that “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.” BAMS maintains that summary adjudication of this claim is proper because it has compensated Plaintiff the entire amount she claims to have been owed by it.

BAMS submits evidence that despite what is alleged in the SAC, Plaintiff is not seeking reimbursement for phone usage, and is fact only seeking reimbursement for allegedly unpaid mileage expenses she is owed in the amount of $1,643.36. (UMF No. 30.) This fact is undisputed. BAMS further submits evidence that on August 16, 2019, its counsel sent a letter to Plaintiff’s counsel enclosing the following two checks from Defendant made out to Plaintiff: (1) a check in the amount of $11,441.70 for the payment of waiting time penalties and (2) a check in the amount of $1,643.36 for the payment of Plaintiff’s alleged unpaid mileage. (Declaration of Meagan Bainbridge in Support of Motion for Summary Adjudication (“Bainbridge Decl.”), ¶ 31, Exhibit 29.) Under Labor Code Section 201 (“Section 201”), an employer is required to pay a discharged employee “the wages earned and unpaid at the time of the discharge” immediately. (Lab. Code, § 201, subd. (a).) If an employer “willfully fails to pay, without abatement or reduction, in accordance with [Section 201], any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate paid or until an action therefor is commenced; but wages shall not continue for more than 30 days.” (Lab. Code, § 203, subd. (a) [emphasis added].)

The foregoing penalty is typically referred to as a “waiting time penalty.” “A willful failure to pay wages within the meaning of Labor Code Section 203 occurs when employer intentionally fails to pay wages to an employee when those wages are due.” (8 Cal. Code Regs., tit. 8, § 13520.) The term does not require a showing that the employer knew of its obligation and intentionally refused to act. (Baker v. American Horticulture Supply, Inc. (2010) 186 Cal.App.4th 1059, 1076.) Further, to be at fault within the meaning of the statute, the employer’s refusal to pay “need not be based on a deliberate evil purpose to defraud workmen of wages which the employer knows to be due”; as used in this code section, “willful” simply means that the employer failed or refused to perform an act which was required to be done. (Barnhill v. Robert Saunders & Co. (1981) 125 Cal.App.3d 1, 7.) A good faith dispute that any wages are due on the part of the employer “will preclude the imposition of waiting time penalties under Section 203.” (Cal. Code Regs., tit. 8, § 13520.)

With the aforementioned evidence, BAMS has demonstrated that it has remedied any potential violation of Section 2802 by providing Plaintiff with compensation for the her unpaid mileage, as well as the maximum amount of waiting time penalties allowed for failure to pay this amount immediately upon her termination. Thus, BAMS has met its initial burden on this claim.

In her opposing separate statement, Plaintiff does not dispute that BAMS has provided her with compensation for unpaid mileage and waiting time penalties and simply states that upon the submission of her opposition, the checks issued to her by Defendant had yet to be cashed. She otherwise does not address these claims in her opposing memorandum, impliedly conceding that there are no triable issues with respect to them. Accordingly, BAMS’ request for summary adjudication of the ninth and tenth causes of action is GRANTED.

9. Failure to Provide Accurate Wage Statement (Violation of Labor Code § 226) (11th Cause of Action)

Plaintiff’s eleventh cause of action is based on allegations that BAMS failed to provide her with an accurate wage statements due to the preceding alleged Labor Code violations, in violation of Labor Code section 226 (“Section 226”). (SAC, ¶ 115.)

In the version of the statute that was in effect at the time of her employment, Section 226 required employers to regularly furnish employees with accurate itemized wage statements, containing certain specified information. The statute further provided that “[a]n employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney’s fees.” (Former Lab. Code 226, subd (e)(1), eff. January 1, 2013.) Finally, subdivision (h) provided that “[a]n employee may also bring an action for injunctive relief to ensure compliance with this section, and is entitled to an award of costs and reasonable attorney’s fees.”

Because this claim is predicated on the preceding claims for various violations of the Labor Code and BAMS is entitled to summary adjudication of those claims, it follows that BAMS is entitled to summary adjudication of this claim. Accordingly, BAMS’ request for summary adjudication of the eleventh cause of action is GRANTED.

10. Unfair Business Practices (Business & Professions Code § 17200) (12th Cause of Action)

This cause of action is predicated on allegations that BAMS violation Business and Professions Code section 17200, et.seq., i.e., the “UCL,” by unlawfully recouping wages earned and failing to pay her for unused vacation time, as well as violating the FEHA. (SAC, ¶¶ 126-127.) As the preceding claims for discrimination, unlawful deductions and failure to pay accrued vacation compensation fail, it follows that Plaintiff’s UCL claim also fails. Therefore, BAMS’ request for summary adjudication of the twelfth cause of action is GRANTED.

11. PAGA (Violation of Labor Code § 2698, et seq.) (13th Cause of Action)

In the thirteenth cause of action, Plaintiff alleges that BAMS failed to pay her all of her regular wages and did not provide her with accurate wage and commission statements. (SAC, ¶ 138; UMF No. 68.)

Under PAGA, an aggrieved employee may bring a civil action personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations. (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 380.) 75 percent of any penalties recovered go to the Labor and Workforce Development Agency (“LWDA”), leaving the remaining 25 percent for the employees. (Ibid.) PAGA is intended “to augment the limited enforcement capability of [LWDA] by empowering employees to enforce the Labor Code as representatives of the Agency.” (Id. at p. 383.)

This claim is essentially derivative of Plaintiff’s other claims for Labor Code violations. Because those claims fail, BAMS argues, persuasively, that this claim also fails and it is entitled to summary adjudication. BAMS additionally maintains that this claim is barred by the statute of limitations. This argument is well taken.

Courts have consistently recognized that PAGA claims are governed by the one-year statute of limitations provided by Code of Civil Procedure section 340, subdivision (a). (See, e.g., Culley v. Lincare Inc. (E.D. Cal. 2017) 236 F.Supp.3d 1184, 1191; Thomas v. Home Depot USA Inc. (N.D. Cal. 2007) 527 F.Supp.2d 1003, 1007.) To perfect claims for PAGA penalties, a plaintiff must exhaust the administrative procedures set forth in Labor Code section 2699.3; this includes giving written notice to the Labor Workforce Development Agency (“LWDA”) and the employer. (Lab. Code, § 2699.3, subd. (a)(1).) After the LWDA responds that it will not prosecute, or after 33 days without notice from the LWDA, the plaintiff may file suit. (Lab. Code, § 2699.3, subd. (a)(2)(A).) This 33-day period is exempted from the limitations period, meaning absent any other tolling, a PAGA claim must be filed within one year and 33 days of the conduct upon which the claim is predicated in order to be timely. (Lab. Code, § 2699, subd. (d).)

Here, Plaintiff was terminated on July 20, 2015. (UMF No. 61.) Plaintiff’s first notice to the LWDA was on June 6, 2016. (UMF No. 64.) As such, the statute of limitations for Plaintiff’s PAGA claim ran one year and 33 days later on August 21, 2016. However, Plaintiff did not file her initial complaint until September 22, 2016, approximately one month after that. Thus, Plaintiff’s PAGA claim appears to be time-barred.

In her SAC and her opposition to the instant motion, Plaintiff claims the statute of limitations was “equitably tolled” while the parties engaged in settlement discussions, and further argues that BAMS should be equitably estopped from asserting the statute of limitations based on its conduct, which Plaintiff maintains induced her to forebear on initiating her lawsuit within the applicable limitations periods. (SAC, ¶¶ 29-42.)

Equitable tolling applies “occasionally and in special situations” “to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court.” (Addison v. State of California (1978) 21 Cal.3d 313, 319; see also McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99 (McDonald).) The doctrine “halts the running of the limitations period so long as the plaintiff uses reasonable care and diligence in attempting to learn the facts that would disclose the defendant’s fraud or other misconduct.” [Citation.] It “focuses primarily on the plaintiff’s excusable ignorance of the limitations period. [Citation.] [It] is not available to avoid the consequences of one’s own negligence.” [Footnote. Citation.] (Sagehorn v. Engle (2006) 141 Cal.App.4th 452, 460 – 461 (Sagehorn).)

Equitable tolling requires “a showing of three elements: ‘timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff.’ [Citations.]” (McDonald, supra, 45 Cal.4th at p. 102.) “When a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts which, if proved, would support the theory.” (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.)

As stated above, Plaintiff also discussed equitable estoppel with regard to this claim. The court in Sagehorn, supra, distinguished the concept of equitable tolling from the concept of equitable estoppel. With equitable tolling, the focus is on the plaintiff’s excusable ignorance. With equitable estoppel, the focus is “on the actions of the defendant. That doctrine looks to ‘the defendant’s representations or other conduct that prevents the plaintiff from suing before the statute of limitations has run. When the [trial court] is satisfied that this has occurred, the defendant will be estopped from pleading a statute of limitations defense.’” (Sagehorn, supra, 141 Cal.App.4th at p. 461, fn. 6.)

“A defendant will be estopped to invoke the statute of limitations where there has been ‘some conduct by the defendant, relied on by the plaintiff, which induces the belated filing of the action.’ It is not necessary that the defendant acted in bad faith or intended to mislead the plaintiff. It is sufficient that the defendant’s conduct in fact induced the plaintiff to refrain from instituting legal proceedings. ‘Whether an estoppel exists—whether the acts, representations or conduct lulled a party into a sense of security preventing him from instituting proceedings before the running of the statute, and whether the party relied thereon to his prejudice—is a question of fact and not of law.’” (Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 43.)

BAMS maintains that neither of the foregoing doctrines apply because it never engaged in conduct that caused Plaintiff to delay filing her claim and she was not ignorant of relevant, upcoming deadlines. According to BAMS, on July 18, 2016, Plaintiff’s counsel sent it a confidential settlement agreement and stated that should it need additional time to consider the settlement, a tolling agreement would need to be executed. (UMF No. 65.) On August 1st, BAMS counsel responded to Plaintiff’s request for a tolling agreement by stating:

Your letter mentions a tolling agreement, which I am not necessarily opposed to; however, I do not understand on what basis it is required. [Plaintiff]’s DFEH right to sue was issued in May 2016 and her LWDA letter was sent in early June, 2016. Is there any reason why you believe the complaint must be filed immediately? If she is up against a deadline that requires immediate filing, please let me know.

(UMF No. 66.)

Per BAMS’ evidence, Plaintiff’s counsel did not respond to defense counsel’s inquiry as to whether there was an upcoming deadline requiring the need for a tolling agreement, and there were no further discussions regarding such an agreement prior to August 21, 2016, and no tolling agreement was ever executed. (UMF No. 67.)

There is nothing in the foregoing exchange that suggests that BAMS engaged in conduct that prevented Plaintiff from filing suit or induced her to delay doing so. Based on the parties’ correspondence, Plaintiff was clearly aware of pending deadlines on her claims based on her discussion of a potential tolling agreement. Yet when asked to expand on that by BAMS, Plaintiff did not follow through. BAMS merely asked if there were immediate deadlines that were approaching; it did not dissuade Plaintiff from pursuing her claims. Thus, BAMS’ assertion that equitable estoppel is not available to Plaintiff to rescue her PAGA claim is persuasive.

As for equitable tolling, informal negotiations or discussions between an employer and employee, as Plaintiff alleges happened between her and BAMS in the time preceding the filing of her complaint, do not toll the statute of limitations under the equitable tolling doctrine. (See Butterfield v. Chicago Title Ins. Co. (1999) 70 Cal.App.4th 1047, 1063.) Consequently, this doctrine is also not available to Plaintiff given BAMS’ showing. Therefore, even if Plaintiff’s preceding claims for Labor Code violations had not failed, her PAGA claim would still be defective because it is time-barred.

In her opposition, Plaintiff does not address the substantive merits of any of BAMS’ arguments with regard to her PAGA claim and instead simply recites the general legal standard for PAGA and the doctrines of equitable tolling and equitable estoppel. She therefore impliedly concedes the merits of BAMS’ arguments. Accordingly, BAMS’ request for summary adjudication of the thirteenth cause of action is GRANTED.

12. Intentional Inflict of Emotional Distress (“IIED”) (14th Cause of Action)

Plaintiff’s fourteenth cause of action for IIED is based on all of the preceding conduct pleaded in the SAC. (SAC, ¶ 148.) BAMS contends that this claim fails as a matter of law for the following reasons: (1) it is preempted by the exclusivity provisions of the Workers’ Compensation Act (“WCA”)’ (2) the claim is “confined” by the statute of limitations; (3) Plaintiff fails to allege extreme and outrageous conduct; and (4) Plaintiff did not suffer severe emotional distress.

The first two arguments can be disposed of quite readily. While the WCA provides a comprehensive system of remedies for job related injuries that are the “sole and exclusive remedy” for such injuries and are available only in proceedings before the Workers’ Compensation Appeals Board (see Lab. Code, §§ 3602, subd. (a) and 5300), this exclusivity rule does not bar lawsuits for emotional distress damages attributed to unlawful discrimination because such misconduct is deemed to “exceed[] the normal risks of the employment relationship.” (See, e.g., Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492.) This is precisely what is alleged here and therefore BAMS’ argument fails.

As for the issue of the statute of limitations, BAMS acknowledges that only some of the conduct upon which this claim is predicated falls outside of the two-year limitations period (Code Civ. Proc., § 335.1). Summary adjudication is only available if it completely disposes of a cause of action. (Code Civ. Proc., § 437c, subd. (f)(1).) Consequently, because not all of the conduct Plaintiff’s IIED claim is based on falls outside the statute of limitations, summary adjudication is not available on this ground.

BAMS next insists that Plaintiff did not allege extreme and outrageous conduct. In order to recover for IIED, an employer’s actions must be shown to 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, 499.) This is where Plaintiff’s claim runs into trouble. The only actionable conduct inside the two-year limitations period is Plaintiff’s termination; however, as BAMS contends, firing an employee by itself does not constitute “outrageous” conduct, even if the firing was without cause. (See, e.g., Buscemi v. McDonnell Douglas Corp. (9th Cir. 1984) 736 F.2d 1348, 1352 [applying California law].) Further, because Plaintiff’s claims for discrimination have failed, even if her termination could constitute “outrageous” conduct, it logically follows that her IIED claim based on the same conduct fails. Accordingly, the Court need not address BAMS’ remaining argument in connection with this claim and its request for summary adjudication of the fourteenth cause of action is GRANTED.

13. Negligent Infliction of Emotional Distress (“NIED”) (15th Cause of Action)

Plaintiff’s fifteenth cause of action is predicated on all of the conduct upon which the preceding claims are based, i.e., termination of her employment based on her age. (SAC, ¶¶ 153-155.) BAMS argues that it is entitled to summary adjudication of this cause of action because it fails as a matter of law.

Courts have rejected separate claims for NIED in connection with employment termination where the employer’s alleged conduct consists of nothing more than firing the employee. This is because the employer’s conduct is inherently intentional, not negligent: “It is clear … that there was no duty not to discharge defendants and that any actions by the employer were intentional, not negligent. (Semore v. Pool (1990) 217 Cal.App.3d 1087, 1105; see also Edwards v. United States Fid. & Guar. Co. (N.D. Cal. 1994) 848 F.Supp. 1460, 1466.) As this is the case with the instant action, the Court agrees with BAMS that this claim fails as a matter of law. Plaintiff does not address BAMS’ argument in her opposition, impliedly conceding that it is meritorious. Accordingly, BAMS’ request for summary adjudication of the fifteenth cause of action is GRANTED.