Snow v. Conagra Brands Inc.

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MICHELLE SNOW,
Plaintiff,
v.
CONAGRA BRANDS INC.,
Defendant.
No. 1:22-cv-00699-DC-CKD
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
(Doc. No. 48)
This matter is before the court on Defendant Conagra Brands Inc.’s motion for summary
judgment. (Doc. No. 48.) Pursuant to Local Rule 230(g), the pending motion was taken under
submission to be decided on the papers. (Doc. No. 61.) For the reasons explained below, the court
will grant Defendant’s motion for summary judgment.
BACKGROUND
A. Factual Background1
1. Plaintiff’s Employment History with Defendant
Defendant is headquartered in Chicago, Illinois and operates a multi-national food
manufacturing company. (UF ¶ 1.) Defendant has a written policy prohibiting discrimination,
1 The relevant facts that follow are undisputed unless otherwise noted and are derived from the
undisputed facts as stated by Defendant, responded to by Plaintiff, and replied to by Defendant.
(Doc. No. 58-1 (“UF”)). Plaintiff did not file a separate statement of undisputed facts.
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harassment, and retaliation based on a protected category or activity, and encouraging employees
to report instances that violate this policy. (UF ¶¶ 2–3.) Defendant has a process for employees to
engage in the interactive process and seek reasonable accommodation. (UF ¶ 4.) Defendant also
has a “no-fault written attendance policy,” which “assesses attendance points for tardiness,
absences, and other specific events” unless the absence is covered “by contractual or legal
reasons, occupational illness or injury, approved family and medical leave, and leaves of absence
approved by [Defendant].” (UF ¶ 5.)
Plaintiff is employed by ConAgra Foods Packaged Foods, LLC, which is a wholly-owned
subsidiary of Defendant, and has worked at its Oakdale Plant since July 27, 1985. (UF ¶¶ 8–10.)
Plaintiff is also a member of the bargaining unit of Teamsters Local 948 (“the Union”). (UF ¶ 8.)
The Collecting Bargaining Agreement (“CBA”) between Defendant and the Union establishes
many terms and conditions of Union members’ employment, including redress for discipline,
work schedules, and filling vacant roles. (UF ¶ 11.)
The Oakdale Plant (where Plaintiff works) operates twenty-four (24) hours per day and
employs anywhere from 600 to 900 employees, depending on whether it is the busy season,
which is referred to as “Fresh Pack” and runs from June to November each year. (UF ¶¶ 6–7.)
Most employees work seven (7) days per week during Fresh Pack. (UF ¶ 7.)
For the past several years, Plaintiff submitted notes to request an accommodation of a six-
day workweek because she suffers from post-traumatic stress disorder (“PTSD”), anxiety, and
obsessive-compulsive disorder (“OCD”). (UF ¶¶ 16, 18.)2 Plaintiff has suffered from PTSD since
1999, and she also suffers from depression and anxiety, which are part of her PTSD. (UF ¶¶ 16,
105.) Plaintiff has taken multiple leaves of absence from her employment in addition to her six-
2 Plaintiff purportedly disputes this fact, stating that “Plaintiff was forced by Defendants to
resubmit her doctor’s note for work accommodation, despite no changes in her condition, in order
to continue receiving her [six-]day work week accommodation.” (See Doc. No. 58-1 at 21 (UF
¶ 18.)). However, this assertion does not actually dispute that Plaintiff did in fact submit doctor’s
notes concerning her requested accommodation at various times during her employment. Further,
the exhibit cited by Plaintiff concerns Plaintiff’s deposition testimony regarding Plaintiff’s
mediation with the Union over her requested accommodation. (See Doc. No. 51 at 12.) That
deposition testimony does not contradict the statement that Plaintiff submitted doctor’s notes on
various occasions requesting a six-day workweek accommodation.
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day workweek accommodation. (UF ¶ 19.)
Throughout her employment with Defendant, Plaintiff has held at least five different
positions, including “belt sorter,” “case operator,” “lab technician,” “food service,” and “raw
material driver.” (UF ¶ 12.) Plaintiff had different supervisors while holding these various
positions. (UF ¶ 13.) Della Craver, a “Warehouse Manager for the Finished Goods and Raw
Materials Department,” supervised3 Plaintiff from 2016 until March 2024 and oversaw the
supervisors for the “Finished Goods and Raw Materials Department at the Oakdale Plant.” (UF ¶¶
14–15.) Ms. Craver reports to Erica Carvalho. (UF ¶ 14.)
Since 2019, Plaintiff has worked as a Raw Material Receiver and her direct supervisors
included Valerie Renslow, Josh Borden, Jaime Martinez, and Bryon Flores.4 (UF ¶¶ 41–42.) The
Raw Material Receiver position is a critical position at the Oakdale Plant because it involves data
entry on a computer and tracking the amount of raw product delivered. (UF ¶ 20.) That position
typically required no work schedule restrictions. (UF ¶ 21.)
2. Plaintiff’s Employment Grievances and Defendant’s Corrective Actions
As described below, since 2020, Plaintiff lodged many grievances and complaints with the
Union and/or Defendant regarding alleged employment incidents, and Defendant has issued to
Plaintiff several disciplinary notices referred to as “Corrective Action Notices.”
In her deposition testimony, Plaintiff averred that on January 25, 2020, her co-worker Ray
Senseney made a “rude” comment to her in that he accused her of stealing company time. (UF ¶
47.) Plaintiff stated she reported Mr. Senseney’s comment to Ms. Craver. (UF ¶ 48.) Plaintiff
stated that Ms. Craver told Plaintiff to “get tougher skin.” (UF ¶ 48.) Plaintiff stated she believes
3 The parties dispute whether Ms. Craver directly or indirectly supervised Plaintiff. However,
there is no dispute that Ms. Craver supervised Plaintiff, in some capacity, between 2016 and
2024. The court finds that for the purposes of this motion, it is immaterial whether Ms. Craver
directly or indirectly supervised Plaintiff and need not resolve this dispute.
4 Ms. Renslow worked as a “Team Leader Warehouse” in the raw materials department from
1990 to 2021. (UF ¶ 43.) Mr. Borden worked as a “Team Leader Warehouse” in the raw materials
department from 2021 to 2022. (UF ¶ 44.) Mr. Martinez worked as a “Team Leader Warehouse”
in the raw materials department in 2023. (UF ¶ 45.) Mr. Flores worked as a “Team Leader
Warehouse” in the raw materials department from 2023 to the present. (UF ¶ 46.)
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Ms. Craver responded in this manner because Ms. Craver did not care about Mr. Senseney’s
conduct. (UF ¶ 48.)
On March 30, 2020, Defendant issued Plaintiff a “Corrective Action Notice” for a verbal
warning for “[n]eglect of duty or failure to meet a reasonable measure of efficiency and
productivity. Poor work performance.” (UF ¶ 49.) On April 2, 2020, Defendant issued Plaintiff a
“Corrective Action Notice” for a first written warning for the same reasons as the previous action.
(UF ¶ 50.) Plaintiff stated in her deposition testimony that Defendant disciplined her because she
called the Union to grieve an issue related to Defendant’s failure to pay overtime wages. (UF ¶
51.) Later, on July 28, 2020, Plaintiff received another “Corrective Action Notice” from
Defendant “for a final written warning due to Plaintiff’s failure to follow reasonable instructions
of a supervisor and for violation of [Defendant]’s code of conduct.” (UF ¶ 52.) Defendant
reduced this final warning to a first warning to resolve the grievance Plaintiff filed with the Union
on that same day. (UF ¶ 53.)
Plaintiff was a witness at an arbitration between Defendant and the Union in March 2021.
(UF ¶ 54.) This arbitration concerned the termination of three employees for alleged sexual
harassment. (UF ¶ 54.) In her deposition testimony, Plaintiff alleged that because she participated
in these arbitration proceedings, Ms. Craver directed Mr. Borden to watch Plaintiff and check on
her every fifteen to twenty minutes. (UF ¶¶ 55, 57.) Plaintiff further stated that Mr. Borden would
ask Plaintiff “if she was working and told her that she better be working.” (UF ¶ 55.) Despite
Plaintiff’s claim, Mr. Borden never told Plaintiff that Ms. Craver directed him to monitor
Plaintiff. (UF ¶ 55.) Another employee of Defendant, Ms. Cruz Martinez, allegedly threatened
Plaintiff in connection with Plaintiff’s participation in the March 2021 arbitration. (UF ¶ 56.)
On April 6, 2021, Plaintiff filed an unfair labor practice charge with the National Labor
Relations Board (“NLRB”). (UF ¶ 58.) In her charge, Plaintiff alleged she experienced retaliation
as a result of serving as a “key” witness in the March 2021 arbitration. (UF ¶ 58.) On May 6,
2021, the NLRB approved the withdrawal of the unfair labor charge. (UF ¶ 59.)
On June 14, 2021, Plaintiff received from Defendant a “Corrective Action” as a final
warning for attendance points. (UF ¶ 63.) Defendant agreed to remove the attendance points after
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Plaintiff grieved the “Corrective Action.” (UF ¶ 64.) Later, on July 19, 2021, Plaintiff filed a
grievance with the Union regarding an “unjust verbal / written warning” that Defendant issued to
Plaintiff. (UF ¶ 65.) Defendant removed the warning in response to Plaintiff’s grievance. (UF ¶
65.) That same day, Plaintiff filed a grievance with the Union alleging Defendant violated its
internal harassment policy by allowing Plaintiff’s coworker, Mr. Senseney, “to use coarseness
towards” Plaintiff. (UF ¶ 66.) The Union withdrew Plaintiff’s allegations after Defendant agreed
to investigate Plaintiff’s allegations. (UF ¶ 67.) On July 23, 2021, Plaintiff provided a written
statement concerning her complaint against Mr. Senseney. (UF ¶ 68.) Therein, Plaintiff alleged
that on July 19, 2021, when Plaintiff reported Mr. Senseney’s behavior to Mr. Borden, Mr.
Borden stated he would talk to Mr. Senseney. (UF ¶ 68.) Plaintiff alleged she also told Mr.
Borden that there “are occasions where [she] gets told to go talk to [Mr. Senseney] to give him
work instructions,” and he would tell Plaintiff “[f]uck you, you’re not my boss.” (UF ¶ 68.)
Plaintiff also alleged she told Mr. Borden that “I don’t want [Mr. Senseney] to get written up.
[He] just needs to respect me and stop arguing with me. I want the cursing to stop.” (UF ¶ 68.)
On July 23, 2021, Mr. Senseney submitted a written response to Plaintiff’s complaint, in
which he stated that he did not curse at nor disrespect Plaintiff. (UF ¶ 69.) Mr. Senseney further
explained that “[Plaintiff] is constantly doing personal stuff while she’s working. [Plaintiff] is
constantly on the phone on social media while working. [Plaintiff] is addicted to social media.”
(UF ¶ 69.) Mr. Senseney also stated he thought Ms. Craver was “afraid of [Plaintiff].” (UF ¶ 69.)
Lastly, Mr. Senseney stated that “[Plaintiff] is always harassing me, telling me that I’m going to
get in trouble and written up if I get [sic] a mistake. [Plaintiff] likes to create trouble and create
conflict. [Plaintiff] is very abusive.” (UF ¶ 69.)
On September 3, 2021, Defendant issued Plaintiff a “Corrective Action Notice” for
violating Defendant’s cell phone policy, which resulted in a three-day suspension of Plaintiff. (UF
¶ 70.) In her deposition testimony, Plaintiff averred that she should not have received the notice
because she was unaware of the policy. (UF ¶ 71.) Plaintiff claimed that the notice was in
retaliation for participating in the Union arbitration. (UF ¶ 71.) In response to the “Corrective
Action Notice,” Plaintiff filed a grievance on September 7, 2021. (UF ¶ 72.) Defendant denied
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Plaintiff’s grievance but later settled it and agreed to pay Plaintiff for the hours missed from the
suspension. (UF ¶ 73.) Also on September 7, 2021, Plaintiff filed a grievance with the Union
regarding harassment allegations against Mr. Borden, specifically that he “was loud and
disrespectful while [Plaintiff] was taking a break.” (UF ¶ 74.) The Union withdrew the grievance
after deciding it “could not be sustained in arbitration.” (UF ¶ 87.)
Around this time, Defendant posted a job opening for two “Inventory Control Specialists,”
which included the requirement that applicants not have work schedule limitations. (UF ¶ 75.) In
September 2021, Plaintiff bid on this position, but Defendant gave it to two other employees. (UF
¶ 76.) In her deposition testimony, Plaintiff stated she believed that based on the CBA, Defendant
should have awarded her the “Inventory Control Specialist” position. (UF ¶ 77.) Following the
denial, Plaintiff filed a grievance with the Union on September 30, 2021. (UF ¶ 78.) Defendant
denied the grievance. (UF ¶ 79.) However, the Union pursued the grievance, and Defendant then
offered Plaintiff the “Inventory Control Specialist” position. (UF ¶ 80.) Plaintiff, however,
declined the offer. (UF ¶ 80.)
On October 5, 2021, Plaintiff reported the following to the Defendant’s “Ethics Point
Hotline:”
(1) Della Craver, Joshua Borden, and Mauricio Chang have harassed
[Plaintiff] for months, (2) [Plaintiff] experienced retaliation after
participating “in an [sic] union arbitration case,” (3) Craver, Borden,
and Chang called Plaintiff “a liar regarding the FMLA incident,” (4)
Borden and Chang suspended Plaintiff for three days when she used
her phone during a break, and (5) [Plaintiff] believes that Borden,
Craver, and Chang are discriminating against her because of her
health condition.
(UF ¶ 81.) The next day, Plaintiff also reported to the “Ethics Point Hotline” that Defendant
threatened to terminate her employment because Plaintiff yelled at superiors, flung papers on a
desk, and slammed a door. (UF ¶ 82.) Plaintiff reported that on October 8, 2021, Defendant
suspended her because she was browsing the internet on Defendant’s computer. (UF ¶ 83.)
Defendant then investigated Plaintiff’s “Ethics Point Hotline” complaint, which included
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interviewing Plaintiff and other employees.5 (UF ¶ 84.) Through its investigation, Defendant
concluded that no harassment or retaliation occurred as to the specific incidents reported by
Plaintiff and that Defendant had accommodated Plaintiff’s six-day workweek restriction. (UF ¶
85.) On November 19, 2021, Defendant, Plaintiff, and the Union met to discuss Defendant’s
investigation into Plaintiff’s complaint. (UF ¶ 86.)
On September 1, 2022, Defendant issued to Plaintiff another final warning “Corrective
Action Notice” because she violated Defendant’s policy when she “raised [her] voice while using
curse words . . . .” (UF ¶ 90.) Plaintiff grieved the final warning, and Defendant withdrew the
disciplinary action. (UF ¶ 91.) Two weeks later, on September 16, 2022, Defendant issued
Plaintiff two “Attendance Corrective Action Notices” for attendance points. (UF ¶ 92.) In
response, on September 29, 2022, Plaintiff filed a grievance regarding the two notices for
attendance points. (UF ¶ 93.) Defendant then “negated” the notices to a written warning. (UF ¶
94.) Plaintiff then met with the Union and Defendant to discuss Plaintiff’s grievances for the
attendance points. (UF ¶ 95.) Plaintiff alleges that during the meeting, Mr. Borden told Plaintiff
they did not want to accommodate Plaintiff’s six-day workweek restriction because the other
employees had to work seven days. (UF ¶ 95.) Plaintiff alleges the Union told Defendant during
the meeting that California law requires one day of rest per week. (UF ¶ 96.)
After this meeting, in January 2023, Defendant and the Union signed an attendance
agreement. (UF ¶ 97.) The attendance agreement included the provisions that Plaintiff would be
held to Defendant’s attendance points policy, Defendant would accommodate Plaintiff’s six-day
workweek restriction through the approval period unless extended through Defendant’s
Americans with Disabilities Act (“ADA”) process, Defendant may approve or deny new
accommodations, and Defendant would set Plaintiff’s attendance point balance to 1.5 points. (UF
¶ 98.)
5 Plaintiff purportedly disputes this fact, stating that “Defendants failed to conduct an unbiased
investigation and continuously and systematically failed to honor Plaintiff’s work restriction,
including finding and/or implementing accommodations for same.” (Doc. No. 58-1 at 62–63.)
However, the evidence cited by Plaintiff primarily concerns Plaintiff’s various requests for work
accommodations, not Defendant’s 2021 “Ethics Point Hotline” complaint investigation. (Id.)
Thus, Plaintiff has not shown this fact, which Defendant has supported with evidence, is disputed.
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Later that year, in October 2023, the Union informed Defendant that Plaintiff complained
about: her attendance points, Defendant questioning Plaintiff’s accommodation, and Defendant’s
discipline of Plaintiff regarding her cell phone usage. (UF ¶ 99.) Defendant told the Union that
the parties agreed that: Plaintiff’s only accommodation is for a six-day workweek, Plaintiff would
need to submit documents for any additional accommodations, Plaintiff is held to Defendant’s
attendance policy, and discipline of Plaintiff for cell phone use was not improper. (UF ¶ 100.)
B. Procedural Background
On April 5, 2022, Plaintiff filed a complaint against Defendant in the Stanislaus County
Superior Court alleging fourteen causes of action: failure to provide meal breaks in violation of
California Labor Code §§ 226.7 and 512 and IWC Wage Orders No. 5 and 9 (claim one); failure
to provide rest breaks in violation of California Labor Code § 226.7 and IWC Wage Orders No. 5
and 9 (claim two); failure to furnish accurate itemized wage statements in violation of California
Labor Code § 226 (claim three); unfair business practice in violation of California Business and
Professions Code § 17200 et seq. (claim four); harassment based on disability in violation of the
Fair Employment and Housing Act (“FEHA”), California Government Code § 12940(j) (claim
five); discrimination based on disability in violation of FEHA, California Government Code §
12940(a) (claim six); failure to engage in the interactive process in violation of FEHA, California
Government Code § 12940(n) (claim seven); failure to make a reasonable accommodation in
violation of FEHA, California Government Code § 12940(m)(1) (claim eight); failure to prevent
harassment and discrimination in violation of FEHA, California Government Code § 12940(k)
(claim nine); retaliation in violation of FEHA, California Government Code § 12940(h) (claim
ten); whistleblower retaliation in violation of California Labor Code § 1102.5(b) (claim eleven);
negligent supervision (claim twelve); negligent hiring/retention (claim thirteen); and intentional
infliction of emotional distress (claim fourteen). (UF ¶ 104; Doc. No. 1-2.) On June 9, 2022,
Defendant removed this action to this court. (Doc. No. 1.)
On July 29, 2024, Defendant filed the pending motion for summary judgment on
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Plaintiff’s fourteen claims.6 (Doc. No. 48.) Plaintiff filed her opposition to Defendant’s motion
for summary judgment on August 23, 2024.7 (Doc. No. 49.) Defendant filed a reply thereto on
September 10, 2024. (Doc. No. 58.)
6 Defendant also concurrently filed a request for judicial notice of eight sets of documents. (Doc.
No. 48-10.) Defendant requests the court take judicial notice of (1) Plaintiff’s unfair labor
practice charge filed with the NLRB on or about April 6, 2021; (2) the NLRB’s notice of
approval of withdrawal of Plaintiff’s unfair labor practice charge; (3) Plaintiff’s January 8, 2019
CRD complaint; (4) Plaintiff’s February 12, 2019 filed with the Equal Employment Opportunity
Commission; and (5) Plaintiff’s April 7, 2021 CRD complaint. (Doc. No. 48-10 at 2.) Pursuant to
Federal Rule of Evidence 201(b), a court may “judicially notice a fact that is not subject to
reasonable dispute because it: (1) is generally known within the trial court’s territorial
jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b). “Records and reports of administrative bodies
are proper subjects of judicial notice.” Elliott v. QF Circa 37, LLC, No. 16-cv-0288-BAS-AGS,
2017 WL 6389775, at *3 (S.D. Cal. Dec. 14, 2017); see also Collins v. Wal-Mart Stores, Inc., No.
3:23-cv-01368-RBM-DEB, 2024 WL 56993, at *4 (S.D. Cal. Jan. 4, 2024), reconsideration
denied, No. 3:23-cv-01368-RBM-DEB, 2025 WL 1435525 (S.D. Cal. May 19, 2025) (granting
request for judicial notice of Plaintiff’s CRD complaint and “noting that district courts routinely
take judicial notices of [CRD] complaints and right to sue letters”) (collecting cases).
Accordingly, the court will grant Defendant’s request for judicial notice of the documents noted
above. Defendant also requests the court take judicial notice of a class action settlement in a
Central District of California case, Negrete, et al. v. Conagra Foods, Inc., et al., No. 16-cv-0631-
FMO and a class action settlement in a Los Angeles County Superior Court case, Alvarez v.
Conagra Foods, Inc., et al., No. 21-cv-37375. (Doc. No. 48-10 at 2.) “Because court filings are
‘capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned,’ pleadings filed and orders issued in related litigation are proper
subjects of judicial notice under Rule 201.” McVey v. McVey, 26 F. Supp. 3d 980, 984 (C.D. Cal.
2014) (citing Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006)
(“We may take judicial notice of court filings and other matters of public record.”)). Therefore,
the court will take judicial notice of these settlement agreements. Lastly, the court will deny
Defendant’s request for judicial notice of Plaintiff’s operative complaint because the court does
not need to take judicial notice of filings already on the docket in this action. Ne. Med. Servs., Inc.
v. California Dep’t of Health Care Servs., No. 2:19-cv-01489, 2019 WL 6918299, at *2 (E.D.
Cal. Dec. 19, 2019) (“The [c]ourt need not and will not take judicial notice of [p]laintiff’s
complaint.”).
7 Plaintiff also interspersed numerous “objections” in response to Defendant’s statement of
undisputed facts. (See Doc. No. 50.) Most of Plaintiff’s objections do not include any explanation
or argument for the court to consider. Id. These objections are “meritless, if not downright
frivolous.” Sandoval v. Cnty. of San Diego, 985 F.3d 657, 665 (9th Cir. 2021). Further, “[e]ven if
the non-moving party’s evidence is presented in a form that is currently inadmissible, such
evidence may be evaluated on a motion for summary judgment so long as the moving party’s
objections could be cured at trial.” Zoom Imaging Sols., Inc. v. Roe, No. 2:19-cv-01544-WBS-
KJN, 2022 WL 4025293, at *3 (E.D. Cal. Sept. 2, 2022). Therefore, Plaintiff’s objections are all
overruled.
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LEGAL STANDARD
When the moving party “shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law,” summary judgment is appropriate.
Fed. R. Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a
genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A fact is “material” if it “might affect
the outcome of the [action] under the governing law.” Momox-Caselis v. Donohue, 987 F.3d 835,
841 (9th Cir. 2021) (quoting Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986)). The
moving party may accomplish this by “citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials,” or by showing that such materials “do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). Though justifiable inferences are viewed in
the light most favorable to the nonmoving party, the nonmoving party “may not rest upon mere
allegations or denials of [its] pleading.” Momox-Caselis, 987 F.3d at 841 (quoting Anderson, 477
U.S. at 256).
“The moving party need only prove that there is an absence of evidence to support the
non-moving party’s case” when the non-moving party bears the burden of proof at trial, as
Plaintiff does here. Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also
Fed. R. Civ. P. 56(c)(1)(B). Summary judgment should be entered against a party who fails to
establish the existence of an element essential to that party’s case when that party bears the
burden of proof at trial. See Celotex, 477 U.S. at 322. In such a case, there is no genuine issue of
material fact “since a complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Id. at 317.
If the moving party meets its initial responsibility, the burden then shifts to the opposing
party to establish that a genuine issue as to any material facts exists. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat’l Bank of Ariz. v. Cities Serv. Co.,
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391 U.S. 253, 288–89 (1968). The opposing party does not need to establish a material issue of
fact conclusively in its favor to establish a factual dispute. It is sufficient that “the claimed factual
dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at
trial.” First Nat’l Bank of Ariz., 391 U.S. at 288–89.
ANALYSIS
As an initial matter, the court notes that Plaintiff fails to cite to any evidence in the
analysis section of her brief in opposition to Defendant’s motion for summary judgment and
relies on only nine legal authorities therein. It is well established that it is not the district court’s
task “to scour the record in search of a genuine issue of triable fact.” Californians for Renewable
Energy v. Cal. Pub. Utilities Comm’n, 922 F.3d 929, 935 (9th Cir. 2019) (citations omitted).
Rather, the court “rel[ies] on the nonmoving party to identify with reasonable particularity the
evidence that precludes summary judgment.” Id. With this in mind, the court will address
Defendant’s motion as to each of Plaintiff’s claims in turn.
A. Plaintiff’s FEHA Claims (Claims Five, Six, Seven, Eight, Nine, and Ten)
1. Administrative Exhaustion Under FEHA
Plaintiff’s fifth through tenth causes of action allege violations of FEHA. A plaintiff is
required to exhaust all administrative remedies before filing a civil action bringing claims under
FEHA based on allegations of discrimination or retaliation. Chew v. City & Cnty. of San
Francisco, 714 F. App’x 687, 690 (9th Cir. 2017).8 To satisfy the exhaustion requirement, a
plaintiff must file a timely and sufficient administrative complaint with the Civil Rights
Department (“CRD”).9 Cal. Gov’t Code §§ 12960, 12965; see also Rodriguez v. Airborne
Express, 265 F.3d 890, 896 (9th Cir. 2001).
FEHA claims are subject to two statutory deadlines: one for filing the CRD administrative
complaint and another for filing the civil lawsuit. Acuna v. San Diego Gas & Elec. Co., 217 Cal.
8 Citation to the unpublished Ninth Circuit opinions such as those cited here and elsewhere in this
order is appropriate pursuant to Ninth Circuit Rule 36-3(b).
9 The Department of Fair Employment and Housing formerly changed its name to the California
Civil Rights Department (“CRD”) on July 1, 2022. See https://calcivilrights.ca.gov/aboutcrd/. To
avoid confusion, the court will refer to the department exclusively as the CRD in this order.
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App. 4th 1402, 1410–13 (2013). Prior to January 1, 2020, complainants had to file a complaint
with the CRD within one year of the unlawful practice. See id. at 1412 (citing Cal. Gov’t Code §
12960(d)). After January 1, 2020, a complaint filed with the CRD “shall not be filed after the
expiration of three years from the date upon which the unlawful practice or refusal to cooperate
occurred.” Cal. Gov’t Code § 12960(e)(5). Second, “the person claiming to be aggrieved may
bring a civil action . . . within one year from the date of [the CRD’s right-to-sue] notice.” Cal.
Gov’t Code § 12965(c)(1)(C). In other words, to satisfy the timing requirements under FEHA, the
complainant must file a civil complaint initiating a lawsuit within one year of receiving a right-to-
sue notice from the CRD. See Mitchell v. State Dep’t of Pub. Health, 1 Cal. App. 5th 1000, 1004
(2016), as modified on denial of reh’g (Aug. 22, 2016). “It is the plaintiff’s burden to plead and
prove timely exhaustion of administrative remedies.” Ayala v. Frito Lay, Inc., 263 F.Supp.3d 891,
902 (E.D. Cal. 2017).
“Under FEHA, the scope of the [CRD] complaint defines the scope of the subsequent civil
action.” Keever v. Mediation Ctr. of San Joaquin, No. 2:13-cv-00029-KJM-KJN, 2015 WL
75194, at *6 (E.D. Cal. Jan. 6, 2015). “To exhaust his or her administrative remedies as to a
particular act made unlawful by the FEHA, the claimant must specify that act in the
administrative complaint, even if the administrative complaint does specify other cognizable
wrongful acts.” Kaur v. Foster Poultry Farms LLC, 83 Cal. App. 5th 320, 355 (2022) (citation
omitted). If a plaintiff alleges conduct in the civil lawsuit that is outside the scope of the charge
made in the written administrative complaint, that alleged conduct cannot serve as the basis for a
claim because the plaintiff failed to exhaust administrative remedies as to that conduct. Chew,
714 F. App’x at 690. A plaintiff may, however, rely on allegations of conduct that are “like or
reasonably related to the allegations” in the administrative charge to serve as a basis for a
claim. Id.
Here, Plaintiff filed two separate administrative complaints with CRD, and for the reasons
explained below, neither of those administrative complaints are sufficient to exhaust
administrative remedies as to Plaintiff’s claims in this action.
/////
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a. Plaintiff’s 2019 Administrative Complaint with CRD
Plaintiff filed her first administrative complaint with the CRD on January 8, 2019—when
the one-year statute of limitations applied. (UF ¶ 32.) In her first administrative complaint,
Plaintiff named Defendant as the respondent and alleged the following:
I was subjected to discrimination, denied hire or promotion and
denied work opportunities or assignments due to my disability
(mental). On or about July 13, 2018, I was offered the position of
Raw Material Handler. On or about July 15, 2018, I provided
Respondent with medical documentation requiring an
accommodation. Subsequently, the offer for the Raw Material
Handler position was rescinded and the job description was changed
to include no physical capability or work schedule limitations as a
requirement. From in or around April 2018 through July 2018, I was
subjected to harassment due to my sex/gender (female). Male
coworkers would unplug my electric lift and placing [sic] a chalk
behind the wheels daily, which could cause my lift to fall over. I
reported the harassment to Manager Del[l]a Craver and HR Manager
Alicia Arriola however the harassment continued.
(UF ¶ 32–34; Doc. No. 48-9 at 142, 143.)
On January 7, 2020, the CRD issued Plaintiff a right-to-sue notice. (UF ¶ 38; Doc. No. 57-
2 at 11–12.) The right-to-sue notice stated that any “civil action must be filed within one year
from the date of this letter.” (Doc. No. 57-2 at 11.) Plaintiff brought the current lawsuit more than
one year after January 7, 2021, the deadline by which Plaintiff had to bring a civil suit against
Defendant based on her CRD complaint. Therefore, Plaintiff cannot base her claims under FEHA
in this case on her 2019 administrative complaint. See Rankins v. United Parcel Serv., Inc., No.
3:23-cv-05785-JSC, 2024 WL 1707245, at *3 (N.D. Cal. Apr. 19, 2024) (finding plaintiff could
not premise her FEHA claims on an administrative complaint where she brought her civil lawsuit
after the one-year deadline to file suit had passed).
b. Plaintiff’s 2021 Administrative Complaint with CRD
Plaintiff filed her second administrative complaint with the CRD on April 7, 2021 with the
help of her counsel of record in this case. (UF ¶ 101; Doc. No. 48-9 at 218–22.) In her second
administrative complaint, Plaintiff named Defendant as the respondent and alleged that “on or
about March 16, 2021” the following occurred:
Complainant was harassed because of complainant’s medical
conditions (cancer or genetic characteristic), other, sexual
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harassment- hostile environment. Complainant was discriminated
against because of complainant’s disability (physical or mental) and
as a result of the discrimination was reprimanded, suspended.
Complainant experienced retaliation because complainant reported
or resisted any form of discrimination or harassment, participated as
a witness in a discrimination or harassment complaint and as a result
was reprimanded, other.
(UF ¶ 101; Doc. No. 48-9 at 221–22.) Plaintiff immediately received a right-to-sue letter, which
again indicated that any “civil action must be filed within one year from the date of this letter.”
(Doc. No. 48-9 at 219.) Plaintiff timely filed the pending lawsuit against Defendant on April 5,
2022. (UF ¶ 104.)
However, Plaintiff’s 2021 administrative complaint is not substantively sufficient to
exhaust her administrative remedies because, even though Plaintiff received a right-to-sue notice
and timely filed this civil lawsuit, the underlying administrative complaint does not describe
Plaintiff’s allegations underlying her FEHA claims in this case. Under the California Code of
Regulations, to receive a right-to-sue notice, “an aggrieved person shall file a right-to-sue
complaint with the department containing the following: . . . (3) a description of the alleged acts
or actions of discrimination, harassment or retaliation; (4) the date or dates each alleged act of
discrimination, harassment or retaliation occurred, including the date of the last or most recent
alleged act . . . [and] (6) for retaliation complaints, the dates and type of protected activity in
which the complainant engaged.” Cal. Code Regs. Tit. 2, § 10005(d). Plaintiff did not provide
such descriptions in her 2021 administrative complaint. Indeed, Plaintiff’s 2021 administrative
complaint does not include any facts regarding the alleged conduct underlying Plaintiff’s various
FEHA claims. Though Plaintiff’s complaint includes a date (“March 16, 2021”) and somewhat
describes the protected action she took (“participated as a witness in a discrimination or
harassment complaint”), (UF ¶ 101; Doc. No. 48-9 at 221–222), Plaintiff’s 2021 administrative
complaint is comprised of conclusory allegations that do not provide the investigating agency or
Defendant with sufficient notice of the specific allegations of harassment and discrimination
complained of, as is required for administrative exhaustion of FEHA claims. Plaintiff also did not
include any details under the “Additional Complaint Details” section of the CRD complaint form.
(UF ¶ 101; Doc. No. 48-9 at 221.) District courts in California have routinely found that CRD
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complaints devoid of factual allegations do not satisfy the administrative exhaustion requirement
under California law. See Tonoyan v. W. Refining Retail, LLC, No. 2:19-cv-08728-ABA, 2020
WL 13132899, *1 (C.D. Cal. Feb 5, 2020) (finding plaintiff did not exhaust administrative
remedies under FEHA where plaintiff’s administrative complaint failed to set forth facts
supporting plaintiff’s FEHA claims); Rankins, 2024 WL 1707245, *5 (“Plaintiff’s 2022
complaint does not satisfy the administrative exhaustion requirement under California law
because it fails to provide any relevant factual details that would allow [CRD] to investigate the
claims alleged in her complaint.”); Martinez v. Conagra Foods Packaged Foods, LLC, No. 2:25-
cv-00795-DJC-CKD, 2025 WL 2419998, *3 (E.D. Cal Aug. 21, 2025) (finding plaintiff did not
sufficiently exhaust administrative remedies under FEHA where plaintiff’s administrative
complaint “relie[d] on conclusory allegations that leave the agency and [d]efendants in the dark
about whether the claim is viable or supported by evidence”). Therefore, Plaintiff’s 2021
administrative complaint does not satisfy the administrative exhaustion requirement and cannot
serve as the basis for any of Plaintiff’s FEHA claims in this case.
Accordingly, the court will grant summary judgment in Defendant’s favor as to each of
Plaintiff’s FEHA claims: harassment based on disability (claim five); discrimination based on
disability (claim six); failure to engage in the interactive process (claim seven); failure to make a
reasonable accommodation (claim eight); failure to prevent harassment and discrimination (claim
nine); and retaliation (claim ten).
B. Plaintiff’s Wage and Hour Claims (Claims One, Two, and Three)
Defendant also moves for summary judgment on Plaintiff’s claims for failure to provide
meal breaks (claim one); failure to provide rest breaks (claim two); and failure to furnish accurate
itemized wage statements (claim three). (Doc. No. 48.) Defendant argues it is entitled to summary
judgment on these claims because “Plaintiff has conceded in her discovery and through the meet
and confer process that she cannot maintain these claims against [Defendant] because these
claims were settled as part of two class actions.” (Doc. No. 48-1 at 27.) In support of this
argument, Defendant cites to a copious number of documents concerning two wage and hour
class actions that were brought against Defendant, and subsequent settlement agreements. (Doc.
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No. 48-9 at 224–401; 403–633.) It is also undisputed that “Plaintiff has settled her wage and hour
claims as a member of two separate class actions” and that she “is not seeking damages related to
any wage and hour violations and will be dismissing the related claims in her complaint.” (UF
¶¶ 122, 123.)
In her opposition to the pending motion, Plaintiff does not address Defendant’s arguments
nor even mention her wage and hour claims, and the court may infer, under the circumstances,
that Plaintiff has “abandoned” these claims. See Marentes v. State Farm Mut. Auto. Ins. Co., 224
F. Supp. 3d 891, 919 (N.D. Cal. 2016) (“When a non-moving party opposes summary judgment
with respect to some claims, but not others, a court may, when appropriate, infer from a party’s
partial opposition that relevant claims or defenses that are not defended have been abandoned.”)
(citations omitted).
For these reasons, the court will grant Defendant’s motion for summary judgment as to
Plaintiff’s claims for failure to provide meal breaks (claim one); failure to provide rest breaks
(claim two); and failure to furnish accurate itemized wage statements (claim three).
C. Plaintiff’s Claims for Negligent Supervision and Hiring/Retention (Claims Twelve
and Thirteen)
To establish liability for negligent hiring, supervision, and retention, a Plaintiff must
show: (1) the employer had a duty of care; (2) the employer breached that duty; (3) the breach
proximately caused the plaintiff’s injury; and (4) damages. See Dent v. Nat’l Football League,
902 F.3d 1109, 1121–2 (9th Cir. 2018) (citing Phillips v. TLC Plumbing, Inc., 172 Cal. App. 4th
1133, 1139 (2009)). “There are ‘two elements necessary for a duty to arise in negligent hiring and
negligent retention cases—the existence of an employment relationship and foreseeability of
injury.’” Dent, 902 F.3d at 1122 (quoting Phillips, 172 Cal. App. 4th at 1139). “The existence of
a legal duty to use reasonable care in a particular factual situation is a question of law for the
court to decide. However, the elements of breach of that duty and causation are ordinarily
questions of fact for the jury’s determination.” Phillips, 172 Cal. App. 4th at 1139 (citation
omitted). Negligence liability is imposed on an employer where it “knew or should have known
that hiring the employee created a particular risk or hazard and that particular harm materializes.”
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Id. (quoting Doe v. Cap. Cities, 50 Cal. App. 4th 1038, 1054 (1996)). Claims for negligent hiring,
supervision, and retention are also subject to a two-year statute of limitations. See Cal. Civ. Proc.
Code § 335.1; see also Brent v. Boeing Co., No. 2:17-cv-04429-ODW, 2019 WL 4450424, at *12
(C.D. Cal. Sept. 17, 2019) (citations omitted).
Here, Plaintiff brings claims for negligent hiring and negligent supervision/retention
against Defendant for failing to prevent “managing agents” from discriminating against and
harassing Plaintiff. (Doc. Nos. 48-1 at 25; 1-2 at 27–8.) Defendant argues it is entitled to
summary judgment on Plaintiff’s claims for negligent hiring and negligent supervision/retention
for two primary reasons. (Doc. No. 48-1 at 24–5.) First, Defendant argues that a two-year statute
of limitations applies to claims for negligent hiring, supervision, and retention under California
law, and the evidence before the court on summary judgment is devoid of any evidence of
Defendant’s negligence from April 2020 (two years before Plaintiff filed this civil action) until
the present. (Doc. No. 48-1 at 25.) The court agrees, and Plaintiff does not dispute, that Plaintiff’s
claims are subject to a two-year statute of limitations. See Cal. Civ. Proc. Code § 335.1. Thus, any
such negligence claim predicated on conduct that allegedly occurred prior to April 5, 2020—two
years prior to Plaintiff filing this lawsuit—is time barred. See Brent, 2019 WL 4450424, at *12.
Second, as to Plaintiff’s complaints of alleged incidents that occurred after April 5, 2020,
Defendant argues that there is no evidence before the court on summary judgment that any of the
“bad actors” identified in those alleged incidents are or were “managing agents.” (Doc. No. 48-1
at 25.) Plaintiff argues in opposition that “Defendant[] knew or should have known about
misconduct of its employees and failed to take appropriate action,” and that “[t]his evidence
creates a triable issue of fact” as to that issue. (Doc. No. 49 at 21.)
Defendant states—and supports with admissible evidence—that it exercised reasonable
care in its duties owed to Plaintiff because Defendant “encourages employees to report
discrimination, harassment, and retaliation[,] and investigates such complaints, as demonstrated
by [Defendant’s] investigation of Plaintiff’s report to the Ethics Point Hotline in 2021.” (Doc. No.
48-1 at 26 (citing UF ¶ 3, 67–9, 86–7.)) Though Plaintiff purports to dispute the fact that
Defendant investigated Plaintiff’s Ethics Point Hotline complaint by stating that Defendant failed
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to conduct an “unbiased investigation,” the deposition testimony cited by Plaintiff does not
actually controvert this fact. (See UF ¶ 84–5; Doc. Nos. 51 at 5, 7, 9–12; 52 at 3–4.) The
deposition testimony Plaintiff points to does not concern nor address Defendant’s 2021
investigation into Plaintiff’s report to the Ethics Point Hotline. Nor does Plaintiff explain what
evidence leads her to believe that Defendant’s investigation was “unbiased.” (See UF ¶ 85.)
Instead, the deposition testimony Plaintiff cites concerns Plaintiff seeking workplace
accommodations from Defendant on multiple occasions throughout her tenure as an employee of
Defendant. (Doc. Nos. 51 at 5, 7, 9–12; 52 at 3–4.)
Moreover, Plaintiff has not submitted any evidence with her opposition to demonstrate a
genuine dispute of material fact exists regarding whether Defendant breached its duty to use
reasonable care in hiring and retaining employees. In her opposition, Plaintiff points to two
occurrences after April 5, 2020, to support her argument that a triable issue of fact exists as to
whether Defendant knew or should have known of employee misconduct and failed to act. (Doc.
No. 49 at 21.) Specifically, Plaintiff summarizes encounters with two different coworkers
concerning Plaintiff’s assertion that Ms. Craver wanted to have Plaintiff fired:
On 07/29/2020, Salvador Manzo Arteaga reported that Craver
instructed him to obtain a final write-up for Plaintiff and to “get her
fired;” On 03/16/2021, Manuel Gutierrez Hernandez provided a
statement attesting to Craver’s discriminatory conduct and her
instructions to help get Plaintiff fired; and Plaintiff made multiple
complaints through the company’s Ethics Point Hotline and to HR
about harassment and discrimination from her supervisors.
(Doc. No. 49 at 21.) However, the evidence Plaintiff cites to substantiate these supposed
encounters—portions of Plaintiff’s deposition testimony—have nothing to do with any such
encounters or assertions that Ms. Craver wanted to have Plaintiff fired. (See Doc. Nos. 51, 52.)
The court was able to locate other portions of Plaintiff’s deposition testimony in which Plaintiff
was asked about allegations in her complaint regarding Ms. Craver requesting that other
employees help get Plaintiff fired. (Doc. Nos. 53 at 5; 1-2 at 9.) But even that deposition
testimony presents evidentiary issues of double hearsay and foundation, and it does not support
Plaintiff’s version of the events. Plaintiff testified at her deposition that Ms. Craver told Salvador
Arteaga and Manuel Gutierrez: “I want to get her fired, so tell me if she makes any mistakes or
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whatever she’s doing. I want you to watch her.” (Doc. No. 53 at 5.) Plaintiff does not explain how
she has personal knowledge of what Ms. Craver said to Mr. Arteaga and Mr. Gutierrez. Notably,
Plaintiff does not point to any declaration or deposition testimony from Mr. Arteaga and Mr.
Gutierrez to substantiate her assertions. In addition to these concerns of admissibility, the
evidence itself also simply does not create a triable issue of fact as to as to whether Defendant
exercised reasonable care in its hiring and retention/supervision of its employees. At summary
judgment, Plaintiff “must provide more than conclusory statements, [she] must provide facts and
evidence that [Defendant] failed to take all reasonable steps to prevent discrimination and
harassment.” Brent, 2019 WL 4450424, at *13. Plaintiff has not done so.
Therefore, the court will grant Defendant’s motion for summary judgment as to Plaintiff’s
negligent hiring claim and negligent retention/supervision claim.
D. Plaintiff’s Claim for Whistleblower Retaliation (Claim Eleven)
To state a claim for whistleblower retaliation under California Labor Code § 1102.5, a
plaintiff must establish (1) they engaged in a protected activity; (2) their employer subjected them
to an adverse employment action; and (3) their protected activity was a contributing factor to an
adverse employment action. Wilson v. City of Fresno, 763 F. Supp. 3d 1073, 1107 (E.D. Cal.
2025) (citing Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703, 710 (2022)); Cal. Lab.
Code. 1102.5(b). An employee engages in a whistleblower activity under Section 1102.5 when
they reasonably believe their employer is violating state or federal law or a local, state, or federal
rule/regulation, and they report the violation to “a government agency, with a person with
authority over the employee, or with another employee who has authority to investigate or correct
the violation.” Wilson, 763 F. Supp. 3d at 1107 (quoting Lawson, 12 Cal. 5th at 710).
Further, a plaintiff must establish by a preponderance of the evidence “that retaliation for
an employee’s protected activities was a contributing factor in a contested employment action.”
Killgore v. SpecPro Pro. Servs., LLC, 51 F.4th 973, 982 (9th Cir. 2022) (citations omitted). After
a plaintiff has made this required prima facie showing, “the burden shifts to the employer to
demonstrate, by clear and convincing evidence, that it would have taken the action in question for
legitimate, independent reasons even had the plaintiff not engaged in protected activity.” Id.
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As for the first and second prongs, Plaintiff argues she engaged in protected activity by
reporting Health Insurance Portability and Accountability Act (“HIPAA”) violations; alerting
Defendant to safety violations; reporting discrimination and harassment to human resources, the
Union, and the Ethics Point Hotline; and participating as a witness in an arbitrating proceeding
involving other employees. (Doc. No. 49 at 19.) Plaintiff states the adverse employment actions
she experienced are denial of the opportunity to work as a Raw Materials Receiver, an increase in
“scrutiny and disciplinary action” after she participated as a witness in an arbitration proceeding,
and “being threatened with termination after complaining to Ethics Point Hotline.” (Id.)
As to the third prong, Plaintiff asserts a causal link exists between the multiple protected
activities and adverse employment actions because there was “temporal proximity,” “statements
from witnesses, such as Arteaga, who reported Craver instructed him to obtain a final write-up for
[Plaintiff] to ‘get her fired’ after learning of complaints,” and “[t]he pattern of escalating adverse
actions following each instance of protected activity.” (Doc. No. 49 at 19.)
Despite bearing the burden to demonstrate by a preponderance of the evidence that
retaliation was a contributing factor in the alleged adverse employment actions, Plaintiff does not
cite to any evidence to support her argument. The court nonetheless carefully reviewed Plaintiff’s
“Statement of Facts” section of her opposition brief and was still unable to identify any evidence
supporting her assertion that statements from other employees, such as Mr. Arteaga, create a
triable issue of fact as to causation. Notably, according to Plaintiff in her “Statement of Facts,”
Ms. Craver sought to get her removed “because of her FMLA and six-day work restrictions,” not
in response to any of Plaintiff’s asserted protected activity. (Doc. No. 49 at 8.)
Further, Plaintiff merely asserts in conclusory fashion that there is “temporal proximity”
between various asserted protected activities and adverse employment actions. (See Doc. No. 49
at 19.) Plaintiff does not cite to any evidence to support this assertion. Plaintiff also does not
attempt to show causation by specifying that a particular adverse employment action occurred
shortly after a particular protected activity. Similarly, Plaintiff’s statement that Defendant
demonstrated a “pattern of escalating adverse actions following each instance of protected
activity” is also a conclusory allegation, unsupported by citations to evidence before the court on
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summary judgment. Moreover, Plaintiff argues that because Defendant shifted justifications for
denying Plaintiff’s accommodations and applied policies inconsistently, Defendant’s “proffered
reasons for its action are suspect and potentially pretextual.” (Doc. No. 49 at 20.) Again, Plaintiff
does not elaborate on these assertions nor point to any evidence to support them. Plaintiff offers
nothing more than conclusions and speculation in response to Defendant’s evidence. Thus,
Plaintiff has not met her burden in opposing summary judgment. See Cafasso, U.S. ex rel. v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (“To survive summary judgment, a
plaintiff must set forth non-speculative evidence of specific facts, not sweeping conclusory
allegations.”).
Because Plaintiff has failed to show by a preponderance of the evidence “that retaliation
for an employee’s protected activities was a contributing factor in a contested employment
action,” Plaintiff has not established a prima facie case of retaliation in violation of Section
1102.5(b). Killgore, 51 F.4th at 982. Accordingly, the court will grant Defendant’s motion for
summary judgment as to Plaintiff’s Section 1102.5 retaliation claim.
E. Plaintiff’s Claim for Intentional Infliction of Emotional Distress (Claim Fourteen)
Under California law, the elements of an intentional infliction of emotional distress
(“IIED”) claim are “(1) extreme and outrageous conduct by the defendant; (2) the defendant’s
intention of causing or reckless disregard of the probability of causing, emotional distress; (3) the
plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation
of the emotional distress by the defendant’s conduct.” Blanco v. Cnty. of Kings, 142 F. Supp. 3d
986, 1002 (E.D. Cal. 2015) (quoting Huntingdon Life Scis., Inc. v. Stop Huntingdon Animal
Cruelty USA, Inc., 129 Cal. App. 4th 1228, 1259 (2005)).
Defendant moves for summary judgment on the basis that Ms. Craver’s alleged comments
are not so “egregiously outside the realm of civilized conduct,” even if they may be annoying and
insulting. (Doc. No. 48-1 at 23.) Defendant argues that allegations of the use of “coarse” language
and yelling towards Plaintiff are insufficient to constitute severe and outrageous conduct. (Doc.
No. 48-1 at 24.) Further, Defendant argues that Plaintiff’s “alleged stress, anxiety, depression, and
irritable bowel syndrome” do not legally constitute severe distress, and that Defendant did not
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cause these issues in Plaintiff. (Id.)
First, Plaintiff’s claim for IIED is subject to a two-year statute of limitations.10 Cal. Civ.
Code § 335.1; see also Oxley v. Permanente, No. 2:23-cv-02270-DJC-AC, 2024 WL 86283, at
*10 (E.D. Cal. Jan. 8, 2024). Accordingly, only conduct that occurred after April 5, 2020 (two
years before Plaintiff filed her civil complaint) may serve as the basis of Plaintiff’s claim for
IIED.
Second, regardless of whether Defendant’s employees’ conduct constitutes severe and
outrageous conduct, Plaintiff has not proffered evidence sufficient to support a triable issue of
fact that the severe or extreme distress she has suffered was attributable to Defendant’s conduct.
Plaintiff in her opposition does point to a period between August and September 2018, where
Plaintiff apparently took leave due to severe stress, however, this period is well outside the statute
of limitations for Plaintiff’s IIED claim. (Doc. No. 49 at 21.) Plaintiff then generally asserts she
has suffered from “lack of sleep, irritable bowel syndrome, stress, anxiety, panic attacks and
severe depression, all of which she has sought medical treatment for.” (Doc. No. 49 at 21.)
However, Plaintiff does not provide the court with any evidence regarding the specific time frame
in which Plaintiff suffered from these symptoms, nor any evidence to show such symptoms were
caused by specific instances of extreme and outrageous conduct.
To the contrary, Defendant has submitted evidence to support that Plaintiff’s longstanding
mental health issues are attributable to other factors present in her life. (Doc. Nos. 48-6 at ¶¶ 4, 6,
15; 48-7 at 145–48; 57-4 at 34.) Indeed, Plaintiff does not dispute that she has suffered from
PTSD since 1999, that her depression and anxiety are attributes of her PTSD, that she was under
additional stress in 2020 due to her mother’s hospitalization, and that taking care of her son, who
has autism, exacerbates her anxiety, among other issues. (UF ¶ 16, 105, 106, 108.) Plaintiff has
not submitted any evidence to show that the distress she has experienced was actually or
10 Plaintiff asserts that the two-year statute of limitations for conduct occurring before April 5,
2020, does not apply to her IIED claim because “[e]vidence shows a pattern of ongoing extreme
and outrageous conduct continuing well past this date.” (Doc. No. 49 at 20.) However, Plaintiff
does not cite to any evidence in support of this statement, nor does she proffer any argument as to
why, for example, the continuing violation doctrine applies to Plaintiff’s IIED claim.
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proximately caused by Defendant’s conduct. At this stage in the proceedings, “[m]ere allegations
are not sufficient to defeat a motion for summary judgment.” St. Sauver v. Byrd-Hunt, No. 20-cv-
0584-JAH-MDD, 2021 WL 3472698, at *5 (S.D. Cal. Aug. 5, 2021), report and recommendation
adopted, No. 20-cv-584-JAH-MDD, 2022 WL 2181580 (S.D. Cal. June 16, 2022) (citing Berg v.
Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986)). Here, Plaintiff has failed to proffer anything more
than “mere allegations.” See id.
Plaintiff has not submitted evidence sufficient to create a triable issue of fact that any
severe or extreme distress Plaintiff has suffered is attributable to Defendant’s conduct.
Accordingly, the court will grant Defendant’s motion for summary judgment as to Plaintiff’s
IIED claim.
F. Plaintiff’s Unfair Competition Law (“UCL”) Claim (Claim Four)
To state a UCL claim, “a plaintiff must show either an (1) ‘unlawful, unfair, or fraudulent
business act or practice,’ or (2) ‘unfair, deceptive, untrue or misleading advertising.’” Lippitt v.
Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1043 (9th Cir. 2003), as amended (Sept. 22,
2003) (quoting Cal. Bus. & Prof. Code § 17200). To state a claim under the unlawful prong of the
UCL, the alleged conduct must violate a “borrowed” law. Davis v. HSBC Bank Nev., N.A., 691
F.3d 1152, 1168 (9th Cir. 2012) (citation omitted). No independent right to sue exists under the
“unlawful” prong of the UCL. Mejia v. Chipotle Mexican Grill, Inc., 793 F. App'x 519, 521 (9th
Cir. 2019).
Defendant moves for summary judgment on Plaintiff’s UCL claim because it is derivative
of Plaintiff’s FEHA claims. (Doc. No. 48-1 at 27.) Plaintiff appears to concede that to the extent
her UCL claim is derivative of her FEHA claims, her UCL claim fails. (Doc. No. 49 at 24.)
Further, though Plaintiff does argue that her UCL claim “is not solely dependent on FEHA
violations” and “Defendant[] engaged in unfair business practices that go beyond FEHA
violations,” she does not elaborate on what specific unfair business practices Defendant engaged
in or cite to any evidence in support thereof. (Doc. No. 49 at 24.) Plaintiff’s vague assertion that
her UCL claim is based on other “unfair business practices” is a conclusory allegation and does
not provide a basis upon which Plaintiff may proceed on her claim.
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Because Plaintiff’s FEHA claims fail due to Plaintiff’s failure to exhaust administrative
remedies, any UCL claim predicated upon them also fail. See Valladares v. Specialized Loan
Servicing, LLC, No. 1:23-cv-01224-NODJ-SAB, 2023 WL 8435575, at *4 (E.D. Cal. Dec. 5,
2023) (dismissing plaintiff’s UCL claim where plaintiff failed to properly state a claim for a
violation of any underlying law); Krantz v. BT Visual Images, L.L.C., 89 Cal. App. 4th 164, 178
(2001) (UCL claims “stand or fall depending on the fate of the antecedent substantive causes of
action.”). Further, because Plaintiff’s other claims fail, her UCL claim fails to the extent that she
predicates her UCL claim on those other claims. See id. Thus, the court will grant Defendant’s
motion for summary judgment as to Plaintiff’s UCL claim. See Richter v. T-Mobile USA, Inc.,
No. 20-cv-00396-JVS-ADS, 2021 WL 4864735, at *8 (C.D. Cal. Oct. 4, 2021) (“When a
statutory claim fails, a derivative UCL claim also fails.”) (quoting Aleksick v. 7-Eleven, Inc., 205
Cal. App. 4th 1176, 1185 (2012)).
CONCLUSION
For the reasons set forth above:
1. Defendant’s motion for summary judgment (Doc. No. 48) is GRANTED in its
entirety;
2. Defendant’s request for judicial notice (Doc. No. 48-10) is GRANTED in part and
DENIED in part;
3. Judgment shall be entered in favor of Defendant; and
4. The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
Dated: January 2, 2026	___________________________
Dena Coggins
United States District Judge
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