18-CIV-00620 LUCIA CENTENO VS. BON APPETIT MANAGEMENT COMPANY, ET AL.

LUCIA CENTENO BON APPETIT MANAGEMENT COMPANY
ROBERT S. NELSON ANTHONY M. ISOLA

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION BY BON APPETIT MANAGEMENT COMPANY TENTATIVE RULING:

Defendant Bon Appetit Management Company’s Motion for Summary Judgment, filed 1101-18, directed to Plaintiff Lucia Centeno’s 02-06-18 Complaint, is DENIED. Defendant’s alternative Motion for Summary Adjudication is GRANTED IN PART and DENIED IN PART, as set forth below.

As to the First Cause of Action alleging age discrimination under Govt. Code §12940, the Motion for Summary Adjudication is GRANTED. Plaintiff bases this claim essentially on one alleged Aug. 2016 comment by a former Supervisor (Mr. Terway), in response to Plaintiff’s request for a pay raise, that because Plaintiff had “been around so long” (or words to that effect), Defendant was already paying Plaintiff more than it wanted to. Centeno Decl., ¶9. Aside from this alleged remark, Plaintiff concedes she is not aware of any other offensive, harassing or inappropriate comment relating to Plaintiff’s age ever having been made by anyone employed by Defendant, orally or in writing. UMF Nos. 8788. Even when viewed in Plaintiff’s favor, the evidence does not create a triable issue of fact as to the age discrimination claim. The alleged Aug. 2016 comment was well over a year prior to Plaintiff’s termination. Terway was no longer Plaintiff’s supervisor in 2017, and Plaintiff does not even allege that Terway played any role in the termination decision. Centeno Tr. 260-61; 280-82. There is no evidence of any nexus between this alleged solitary 2016 comment and the 2017 decision to terminate.

As to the Second Cause of Action alleging disability discrimination under Govt. Code §12940, the Motion for Summary Adjudication is DENIED. While Defendant may ultimately have valid defenses to this claim, viewed in a light favorable to Plaintiff, the evidence precludes resolution of this cause of action via summary adjudication. Without belaboring the details, the record includes ample evidence that in 2016-17, Plaintiff had various medical/health-related issues/problems (the alleged disability) that caused her to miss a significant amount of work. Plaintiff also offers evidence that her superiors (including Director of Operations, Mr. Cohen, and Operations Manager, Ms. Truoccolo) became increasingly frustrated with Plaintiff’s medical-related absences. UMF 150-154; Centeno Tr. 264-68 (testifying that in late Aug. 2017, Mr. Cohen became angry and “very rude” to Plaintiff due to Plaintiff’s repeated medical-related absences and “scream[ed]” at Plaintiff, stating: “You’re not on disability anymore”); Centeno Tr. 269-70 (testifying that Supervisor Truoccolo, in Aug. 2017, in response to Plaintiff requesting permission to attend another medical appointment, became “really mad,” stating: “you’re not supposed to let me know in one day,” and when Plaintiff attempted to respond, Truoccolo turned and walked away); Centeno Tr. 270-273 (testifying that Supervisors Occalo and Truoccolo complained about Plaintiff’s medical/health-related absences and repeatedly asked Plaintiff to schedule her doctor appointments after work hours). During her 09-01-17 review, Plaintiff informed Truoccolo that she was continuing to experience shoulder and stomach problems and anticipated missing more work. UMF 124; Centeno Decl., ¶25. Viewed in Plaintiff’s favor, this evidence suggests the termination decision may not have been based (or entirely based) on Plaintiff’s unauthorized leave from Nov. 9-21, 2017.

The evidence also suggests that while Plaintiff, a non-native speaker, did not specifically request “personal leave” (as distinguished from family medical leave) to travel to Nicaragua to care for her mother-in-law on 11-09-17, both Plaintiff’s superiors and the HR LOA group knew that Plaintiff was seeking time off for personal reasons. Yet Plaintiff was only considered for FMLA leave. UMF 78. Both Supervisors Occalo and Truoccolo testified that they would have approved Plaintiff to take personal leave to visit her mother-in-law during that trip (up to 30 days, without pay). UMF 130-131; Truoccolo Tr. 96-97; Cohen Tr. 69-70. Further, when Plaintiff, on 11-13-17, phoned her supervisor stating her mother-in-law had died, Plaintiff presumably would have qualified for five days bereavement leave, which she was not given. This evidence further suggests that the decision to determinate may have been motivated, in part, by Plaintiff’s medicalrelated absences.

Defendant’s contention that the decision to terminate was made solely by employees in Defendant’s Leave of Absence (LOA) department, who had no animus towards Plaintiff and no knowledge of her medical issues, or alternatively, that an HR computer program generated the decision to terminate, does not change the result. See UMF Nos. 76-82. The evidence permits a reasonable inference that both Ms. Truoccolo and/or Mr. Cohen were involved in the decision. The suggestion that the HR group (or its computer) made the decision alone, without the knowledge or input from Plaintiff’s direct superiors, seems questionable. UMF Nos. 140-150, 153-54; Cohen Tr. 35; Truoccolo Tr. 28-30, 32, 36.

As to the Third Cause of Action alleging wrongful termination in violation of public policy, the Motion for Summary Adjudication is DENIED. This claim is based/contingent on the merits of the discrimination claim(s). Because the motion is denied as to the disability discrimination claim, it is also denied as to the derivative wrongful termination claim.

As to Defendant’s Twelfth Affirmative Defense, the motion is DENIED. For the same reasons discussed above and the evidence cited above, Defendant has not demonstrated that the termination decision “would have been the same” absent any discrimination.

As to Plaintiff’s request for punitive damages, the Motion for Summary Adjudication is GRANTED. While the evidence pertaining to the disability discrimination claim is sufficient to withstand summary adjudication, it is insufficient to sustain the allegation of malice, fraud or oppression under Civ. Code §3294. Both “malice” and “oppression” ultimately require clear and convincing evidence of “despicable” conduct. Here, Plaintiff knowingly left the country on what initially appeared to be a three-week, unapproved leave. Thus, while the motion is denied as to the disability discrimination claim, the request for punitive damages is not sufficiently supported.

Defendant’s Objections to Evidence, filed 01-11-19, are ruled upon as follows:

Obj. Nos. 1-3; 5-24: OVERRULED. Obj. No. 4: SUSTAINED IN PART as to the statement regarding the pay scale. Evid. Code §§403, 702.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.