ORDER RE: MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION IN THE ALTERNATIVE (Docs. 13-13-4)
Defendant Radioshack Corporation has filed a motion for summary judgment or summary adjudication in the alternative pursuant to Federal Rule of Civil Procedure 56. For reasons discussed below, summary adjudication in favor of Defendant shall be granted as to the second and third causes of action for breach of the implied covenant of good faith and fair dealing and breach of the implied covenant not to terminate except with good cause. Summary adjudication in favor of Defendant shall be denied as to the first, fourth and fifth causes of action for wrongful termination in violation of public policy, intentional infliction of emotional distress and age discrimination.
II. FACTS AND PROCEDURAL BACKGROUND
On September 17, 2010, plaintiff Gerald L. Hunter ("Plaintiff") filed his complaint in Madera Superior Court against defendants Radioshack Corporation ("Defendant") and Does 1 through 50, inclusive, asserting five causes of action for (1) wrongful termination in violation of public policy, (2) breach of the implied covenant of good faith and fair dealing, (3) breach of the implied covenant not to terminate except with good cause, (4) intentional infliction of emotional distress and (5) age discrimination. On December 9, 2010, Defendant removed the action to this Court pursuant to 28 U.S.C. § 1441(b). On December 12, 2011, Defendant filed its motion for summary judgment or summary adjudication in the alternative pursuant to Federal Rule of Civil Procedure 56, contending there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. On January 6, 2012, Plaintiff filed his opposition to Defendant's motion. On January 20, 2012, Defendant filed its reply to Plaintiff's opposition.
"A party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see Fed. R. Civ. P. 56(c)(1)(A). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (2010) (citing Celotex, supra, at p. 325). If the moving party meets its initial burden, the burden shifts to the non-moving party to present evidence establishing the existence of a genuine dispute as to any material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538. A court ruling on a motion for summary judgment must construe all facts and inferences in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Even if the motion is unopposed, the movant is not absolved of the burden to show there are no genuine issues of material fact (Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993)), although the court may assume the movant's assertions of fact to be undisputed for the purposes of the motion and grant summary judgment if the facts and other supporting materials show the movant is entitled to it. See Fed. R. Civ. P. 56(e)(2), (3).
A. FEHA claims -- Plaintiff's first and fifth causes of action assert claims for wrongful termination in violation of public policy and age discrimination, respectively, both of which are brought pursuant to the California Fair Employment and Housing Act (FEHA, Cal. Gov. Code, §§ 12900 et seq.). Under the cause of action for wrongful termination, Plaintiff alleged as follows:
"5. From on or about November 3, 2006, to on or about June 9, 2010, Plaintiff was employed as a sale clerk by Defendants, and each of them. [¶] 6. At all times mentioned herein, Plaintiff was employed pursuant to an oral employment contract by Defendants, and each of them. At all times mentioned herein, Plaintiff performed his duties and obligations under the employment agreement referenced above and Defendants, and each of them, knew Plaintiff had fulfilled all of the duties and conditions under the agreement. [¶] 7. Plaintiff is informed and believes and thereon alleges that on or about June 9, 2010, Plaintiff's employment was caused to be terminated by Defendants, and each of them, because of his age. Such conduct by Defendants, and each of them, was in violation of public policy, including, but not limited to, Government Code, Section 12940."
Under the cause of action for age discrimination, Plaintiff similarly alleged as follows:
"2. Plaintiff is informed and believes and thereon alleges that Defendants, and each of them, denied the Plaintiff the terms and conditions of his employment because of his age, in violation of Government Code, Section 12940. Additionally, Plaintiff is informed and believes and thereon alleges that on or about June 9, 2010, Plaintiff's employment was caused to be terminated by Defendants, and each of them, because of her [sic] age, in violation of Government Code, Sections 12940, et seq."
Defendant moves for summary adjudication of these claims, contending the evidence fails to show Defendant terminated or discriminated in any way against Plaintiff because of Plaintiff's age.
1. Summary judgment principles applicable in the context of age discrimination claims -- FEHA provides in pertinent part: "It is an unlawful employment practice . . . [¶] (a) For an employer, because of the . . . age . . . of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment." Cal. Gov. Code, § 12940. " 'Age' refers to the chronological age of any individual who has reached his or her 40th birthday." Cal. Gov. Code, § 12926(b). "Because state and federal employment discrimination laws are similar, California courts look to federal precedent when interpreting FEHA. Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317, 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000). In particular, California courts use the familiar McDonnell Douglas burden-shifting test when analyzing disparate treatment claims under FEHA. Id. (citing McDonnell Douglas Corp. v. Green ,411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973))." Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011).
"Under the three-part McDonnell Douglas test, the plaintiff bears the initial burden of establishing a prima facie case of employment discrimination." Earl, supra, 658 F.3d at 1112 (citing Noyes v. Kelly Services, 488 F.3d 1163, 1168 (9th Cir. 2007)).*fn1 "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 ,supra, 24 Cal.4th at 355. "While the plaintiff's prima facie burden is not onerous, he must at least show actions taken by the employer from which one can infer, if such actions remained unexplained, that it is more likely than not that such actions were based on a [prohibited] discriminatory criterion . . . ." Id. (internal citations and quotations omitted). Once the plaintiff has done so, "a presumption of discrimination arises." Id. The burden then "shifts to the employer to rebut the presumption by producing admissible evidence . . . that its action was taken for a legitimate, nondiscriminatory reason." Id. at 355-56. "If ...