Case Name: Rubin Hudson v. Del Monaco Specialty Foods, Inc., dba Del Monaco Foods, et al.
Case No.: 115CV278874

Motion for Summary Judgment/ Summary Adjudication

Factual and Procedural Background

On April 14, 2014, defendant Del Monaco Specialty Foods, Inc., dba Del Monaco Foods (“Del Monaco”) hired plaintiff Rubin Hudson (“Hudson”) as a prep cook apprentice. (First Amended Complaint (“FAC”), ¶8.) During his employment with defendant Del Monaco, plaintiff Hudson observed numerous violations of federal and state safety laws governing food safety, wages, and hours. (FAC, ¶¶8 and 9.) Plaintiff Hudson regularly raised concerns about his observations and was outspoken about defendant Del Monaco’s efforts to force employees to work without proper meal and rest periods and without proper credit for overtime hours. (FAC, ¶8.)

Plaintiff Hudson is an African American male, one of only three African Americans employed at defendant Del Monaco who employs over 100 people at various positions. (FAC, ¶10.) During plaintiff Hudson’s employment, he was regularly referred to as “nigger” and treated with disrespect and harassed by primarily Latino co-workers based on his race. (FAC, ¶¶10 – 14.) Plaintiff Hudson complained about his mistreatment to management but the mistreatment/harassment continued and none of defendant Del Monaco’s managers took actions to prevent future harassment. (FAC, ¶17.) The racial harassment continued. (FAC, ¶18.) One of plaintiff Hudson’s managers asked plaintiff whether he got a jacket “from a dead nigger.” (FAC, ¶18.) In view of defendant Del Monaco’s refusal to remedy prior racial harassment, plaintiff Hudson believed defendant Del Monaco would ignore his complaints. (FAC, ¶18.) Plaintiff Hudson left his position on December 10, 2014 because he could not tolerate the ongoing racial harassment and management’s indifference. (FAC, ¶¶8 and 18.)

On April 2, 2015, plaintiff Hudson filed a complaint against defendant Del Monaco and others. On May 11, 2015, plaintiff Hudson filed a FAC naming defendant Del Monaco only and asserting the following causes of action:

(1) Racial Discrimination (Constructive Termination)
(2) Racial Harassment/ Hostile Work Environment
(3) Intentional Infliction of Emotional Distress

On June 10, 2015, defendant Del Monaco filed its answer to the FAC.

On October 19, 2016, defendant Del Monaco filed the motion now before the court, a motion for summary judgment/ adjudication of plaintiff’s FAC.

III. Racial Harassment/ Hostile Work Environment.

“To establish a prima facie case of a racially hostile work environment, [plaintiff] was required to show that (1) he was a member of a protected class; (2) he was subjected to unwelcome racial harassment; (3) the harassment was based on race; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the [employer] is liable for the harassment.” (Thompson v. City Of Monrovia (2010) 186 Cal.App.4th 860, 876.)

In moving for summary adjudication of this cause of action, defendant Del Monaco identifies and isolates four instances of purported harassment and argues, for various reasons, that each of the four instances of racial harassment do not amount to racial harassment or do not support a claim for racially hostile work environment. However, the court need not look at all four as, discussed below, the court finds the existence of a triable issue with regard to one.

One of the bases for plaintiff Hudson’s racial harassment cause of action is plaintiff Hudson’s claim that Jesse Castillo and other Del Monaco employees called plaintiff Hudson, “mayate,” which plaintiff Hudson understands to mean, “nigger,” in Spanish. Initially, plaintiff Hudson did not know what “mayate” meant.

“ ‘[W]hether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ [Citation.]” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.) “[I]n order to be actionable …, a [racially] objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. [Citation.]” (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 787.)

Defendant Del Monaco contends the use of the term “mayate” was not subjectively offensive to plaintiff Hudson because he did not understand, at the time, what the term meant. A factual dispute arises, however, with regard to when plaintiff Hudson came to understand what the term, “mayate,” meant. Defendant’s own evidence is that plaintiff did not initially understand what the term mean. Plaintiff testified, “At first I didn’t know what it means.” In opposition, plaintiff proffers evidence that his “coworkers later confirmed for me that my feelings were accurate and that I was being called a nigger and other disrespectful terms by Eduard and other Latino employees.” In addition, plaintiff Hudson submits a declaration stating, “As I learned their Spanish words, I confirmed for myself that I was being disrespected” and “I also heard from my coworkers that these employees were speaking disrespectfully about me and using racial slurs.” The clear inference from plaintiff’s evidence is that he understood the meaning of the term “mayate” to mean “nigger” and that he understood this during the term of his employment with defendant Del Monaco. At the very least, this evidence presents a triable issue of material fact as to whether the objectionable work environment was subjectively offensive to plaintiff Hudson during his employment.

Alternatively, defendant Del Monaco contends it cannot be held liable for any hostile environment based on plaintiff’s co-workers using the term, “mayate,” because plaintiff did not report the “mayate” comments to Human Resources. When asked why he failed to report this, plaintiff stated he did not think anything would be done.

A plaintiff may state a case for harassment against the employer under one of two theories: vicarious liability or negligence. [Footnote omitted.] Which route leads to employer liability depends on the identity of the actual harasser, specifically whether he is a supervisor of the employee, or merely a co-worker. … If, however, the harasser is merely a co-worker, the plaintiff must prove that the employer was negligent, i.e. that the employer knew or should have known of the harassment but did not take adequate steps to address it.

(Swinton v. Potomac Corp. (9th Cir. 2001) 270 F.3d 794, 803; see also Gov. Code, §12940, subd. (j)(1)—“Harassment of an employee … shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”.)

In opposition, plaintiff proffers evidence that he did report the fact that Jesse Castillo continued to call him, “mayate.” Plaintiff reported this to a Del Monaco manager, Woody Barrett, who told plaintiff Hudson he was being too sensitive and plaintiff “needed to deal with it.” In addition to the reports plaintiff Hudson made to Woody Barrett, Del Monaco manager, “Picash,” was present when Latino employees called plaintiff Hudson a “pinche negro,” but Picash did not intervene or admonish the employees for their conduct. The evidence regarding defendant Del Monaco’s knowledge of the harassment is in conflict. Consequently, a triable issue of material fact exists with regard to whether defendant Del Monaco knew or should have known of harassment by plaintiff Hudson’s co-workers.

IV. Racial Discrimination.

“The specific elements of a prima facie case [for discrimination] may vary depending on the particular facts. [Citations.] Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz).)

Since plaintiffs in employment discrimination cases most often lack direct evidence of the employer’s discriminatory intent, however, courts rely on a system of shifting burdens to aid the presentation and resolution of such claims. [Citations.] [¶] Under the three-part test developed in McDonnell Douglas Corp. v. Green … : “(1) The complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive.” [Citation.] [¶] If the employee establishes a prima facie case, the employer is required to offer a legitimate, nondiscriminatory reason for the adverse employment action. [Citation.] The employer’s burden at this stage is to go forward with additional evidence; it does not take on a burden of persuasion. [Citations.] If the employer produces substantial evidence of a legitimate, nondiscriminatory reason for the adverse employment action, the presumption of discrimination created by the prima facie case “ ‘simply drops out of the picture’ ” [citations] and the burden shifts back to the employee to prove intentional discrimination. [Citations.] “[T]he plaintiff may establish pretext ‘either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’ ” [Citation.] Circumstantial evidence of “ ‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate” on an improper basis. [Citations. Footnote.] With direct evidence of pretext, “ ‘a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.’ [Citation.] The plaintiff is required to produce ‘very little’ direct evidence of the employer’s discriminatory intent to move past summary judgment.” [Citation.]

(Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 67–69.)

As its legitimate, non-discriminatory reason for changing plaintiff Hudson’s employment from full time status to supplemental status (up to 30 hours per week on a flexible schedule returning to full time status after a period of reliable attendance), defendant Del Monaco explains that it has an attendance policy which requires employees to notify their supervisor or Human Resources of an absence prior to the employee’s scheduled start time. On September 23, 2014, plaintiff Hudson received a Performance Improvement Plan (“PIP”) for leaving early from his shift without proper authority from Human Resources or a supervisor. The PIP stated, “Any further instances of leaving early without prior approval will result in a status change from full-time to supplemental status.”

From Monday, December 1, 2014 to Friday, December 5, 2014, plaintiff did not report to work. Plaintiff Hudson did not call his supervisor or Human Resources as required by company policy and, instead, called a job hotline number to leave a message.

On Tuesday, December 9, 2014, plaintiff Hudson was notified that he would be changed to supplemental status due to his unreliable attendance. As a supplemental team member, plaintiff Hudson would have the opportunity to work up to 30 hours per week on a flexible schedule and return to full time status after a period of reliable attendance. Plaintiff understood he was put on supplemental status because he missed too many days of work.

On Wednesday, December 10, 2014, plaintiff voluntarily resigned from defendant Del Monaco because he was placed on supplemental status and he wanted full-time permanent employment.

Since plaintiff Hudson does not have any direct evidence of discriminatory animus by defendant Del Monaco, he must show pretext through circumstantial evidence. In opposition, plaintiff Hudson argues first that defendant Del Monaco’s proffered reason is pretextual. “Pretext may be found where the employer has given shifting, contradictory, implausible, uninformed or baseless justifications for its actions.” (Chin, Wiseman, Callahan & Lowe, CAL. PRAC. GUIDE: EMPLOYMENT LITIGATION (The Rutter Group 2016) ¶7:462, p. 7-109 citing EEOC v. Ethan Allen, Inc. (2nd Cir. 1994) 44 F.3d 116, 120 and Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 673.) Specifically, plaintiff Hudson contends defendant Del Monaco’s proffered reason for taking adverse employment action against him is without justification because plaintiff Hudson did, in fact, speak to his supervisor on December 1, 2014 and notified the supervisor that plaintiff Hudson would not be at work because he needed to take his significant other to the hospital for a serious medical procedure. Plaintiff Hudson then called the hotline, as instructed by Del Monaco, each day before his shift to explain that he would miss work to care for his significant other following her medical procedure. According to plaintiff Hudson, it was common practice to call the hotline before a shift to report an absence.

In reply, defendant Del Monaco proffers plaintiff Hudson’s deposition testimony in which he testified that he did not call his supervisor directly because he did not have his direct number. “A party cannot evade summary judgment by submitting a declaration contradicting his own prior deposition testimony.” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120.) Thus, the court will not consider plaintiff’s declaration to the extent that it conflicts with his prior sworn deposition testimony. Even so, plaintiff Hudson’s evidence is that he called a hotline number and that practice is common which is in conflict with defendant Del Monaco’s apparent assertion that use of the hotline is not appropriate. Thus, the evidence is in conflict with regard to whether the stated reason for defendant Del Monaco’s adverse employment action (changing plaintiff’s status from full time to supplemental) is true or merely pretext for discrimination.

V. Constructive Termination.

To establish a claim for wrongful discharge in violation of public policy, each of the following must be proved: (1) An employer-employee relationship; (2) Termination or other adverse employment action; (3) Termination of plaintiff’s employment was a violation of public policy (or more accurately, a ‘nexus’ exists between the termination and the employee’s protected activity); (4) The termination was a legal cause of plaintiff’s damage; and (5) The nature and the extent of plaintiff’s damage. (See Holmes v. General Dynamics (1993) 17 Cal.App.4th 1418, 1426; see also CACI, No. 2430.) Discharge includes a constructive discharge where a reasonable person would feel compelled to resign because the employer intentionally caused objectively intolerable working conditions or knowingly allowed them to exist. (See Pennsylvania State Police v. Suders (2004) 542 U.S. 129; Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1250 (Turner).)

“To establish a constructive discharge claim, an employee must prove by a preponderance of the evidence ‘that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated … that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Chin, Wiseman, Callahan & Lowe, CAL. PRAC. GUIDE: EMPLOYMENT LITIGATION (The Rutter Group 2016) ¶4:409, p. 4-54 citing Turner, supra, 7 Cal.4th at p. 1251; Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 471 – 472.) “The test is whether a reasonable person in the employee’s shoes and faced with the alleged intolerable working conditions would have felt compelled to resign.” (Id. at ¶4:410, p. 4-55 citing Turner, supra, 7 Cal.4th at p. 1248.) “Intolerable working conditions are those which either [1] are unusually aggravated, or [2] amount to a continuous pattern of objectionable conduct.” (Id. at ¶4:420, p. 4-55 citing Turner, supra, 7 Cal.4th at pp. 1246 – 1247; Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1171 – 1172.)

Defendant Del Monaco argues plaintiff Hudson cannot sustain a claim of constructive discharge because plaintiff’s own actions are inconsistent with a finding of “intolerable working conditions.” Defendant Del Monaco proffers evidence that plaintiff Hudson attended the company Christmas party with his fiancé on December 6, 2014. Plaintiff Hudson testified that he enjoyed himself and asked Del Monaco’s CEO and Vice President of Talent whether he could propose to his fiancé at the party. Both agreed but plaintiff Hudson changed his mind and did not propose that night. Defendant Del Monaco also proffers evidence that plaintiff Hudson repeatedly affirmed his voluntarily resignation , an act which is inconsistent with a claim of compelled or involuntary resignation.

In opposition, plaintiff Hudson notes that, “Although situations may exist where the employee’s decision to resign is unreasonable as a matter of law, ‘[w]hether conditions were so intolerable as to justify a reasonable employee’s decision to resign is normally a question of fact. [Citation.]’ [Citations.]” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 827; see also Page v. MiraCosta Community College Dist. (2009) 180 Cal.App.4th 471, 498—“The determination that a reasonable employee would have been compelled to quit is ‘quintessentially a jury function.’ [Citation.]”) Plaintiff Hudson also takes issue with whether defendant Del Monaco’s evidence is sufficient to even shift the burden as defendant’s own evidence is that plaintiff attended the company Christmas party before he was placed on supplemental status. Moreover, the existence of a triable issue with regard to plaintiff Hudson’s claim for harassment would preclude summary adjudication of plaintiff Hudson’s claim for constructive discharge. (See Kovatch v. California Cas. Management Co. (1998) 65 Cal.App.4th 1256, 1270-1271 (disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826—continued harassment of an employee may constitute “intolerable” working conditions.)

VI. IIED.

“The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494; see also Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 744 – 745; see also CACI, Nos. 1600 and 1602.)

Where an emotional distress claims is tethered to a discrimination claim and the discrimination claim fails, then so too does the emotional distress claim. (See Jones v. R.J. Donovan Correctional Facility (2007) 152 CalApp.4th 1367, 1382.) Essentially, defendant Del Monaco argues the same here that plaintiff Hudson’s claim for intentional infliction of emotional distress is based on the same conduct as his other claims and will stand or fall on the success of plaintiff Hudson’s other claims. For the reasons discussed above, summary adjudication is not proper.

Accordingly, defendant Del Monaco’s motion for summary judgment/ summary adjudication is DENIED.

Defendant Del Monaco’s evidentiary objections, numbers 1, 2, 3, 4, 5, 6, 7, 15, 19, 24, 26, 30, 32, and 42 are hereby OVERRULED. “In granting or denying a motion for summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., §437c, subd. (q).)