The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Document 19)
On May 15, 2012, Defendants BNSF Railway Company and Ben Sheets filed the instant motion for summary judgment. The matter was heard on June 15, 2012, before the Honorable Dennis L. Beck, United States Magistrate Judge. Thomas Cregger appeared on behalf of Defendants BNSF Railway Company and Ben Sheets. John Furstenthal appeared on behalf of Plaintiff Willie A. Thomas, III.
Plaintiff Willie A. Thomas, III ("Plaintiff") filed this employment discrimination action against Defendants BNSF Railway Company ("BNSF") and Ben Sheets ("Sheets") (collectively "Defendants") on December 15, 2010, in Fresno County Superior Court. Plaintiff asserted four causes of action: (1) harassment based on race and religion in violation of Cal. Gov't Code § 12940 against BNSF and Sheets: (2) failure to prevent harassment in violation of Cal. Gov't Code § 12940(k) against BNSF; (3) intentional infliction of emotional distress against BNSF and Sheets; and (4) breach of the implied covenant of good faith and fair dealing against BNSF.
Defendants answered the complaint on February 4, 2011, and removed the action to this Court on February 7, 2011. Thereafter, on May 14, 2012, Defendants filed the instant motion for summary judgment. Plaintiff opposed the motion on June 1, 2012, and Defendants replied on June 8, 2012.
UNDISPUTED MATERIAL FACTS
A. Plaintiff's employment with BNSF Plaintiff is an African-American who has worked for BNSF since 1992. Defendants' Separate Statement of Undisputed Facts ("Defs. UMF") 1. He initially was hired as a maintenance of way worker. Defs. UMF 2. In 1994, he was promoted to the position of Switchman/Conductor. Defs. UMF 3. In 1998, he was promoted to Locomotive Engineer and has remained in that position to date. Defs. UMF 4. Throughout his employment, Plaintiff was subject to ongoing testing while in the workplace. Defs. UMF 5.
B. Defendant Sheets' employment with BNSF Defendant Sheets, at the time of the incident in question, July 5, 2009, was employed as a Senior Trainmaster. Defs. UMF 6. One of Sheets' tasks was to observe employees, such as Plaintiff, to insure they were complying with BNSF work rules. Defs. UMF 7. On July 5, 2009, Sheets was testing Thomas and other members of his crew regarding compliance with BNSF work rules. Defs. UMF 8.
C. Encounter between Plaintiff and Defendant Sheets On July 5, 2009, Plaintiff and his crew were assigned to perform switching movement at Kings Park, near Hanford, California. Defs. UMF 9. While on route to Kings Park, Plaintiff received a radio instruction to "halt all movements." Defs. UMF 10. After the train stopped, Sheets boarded the locomotive. Defs. UMF 11. Sheets informed Plaintiff that he had been testing the crew through observing their operating of the train. Defs. UMF 12. Sheets also informed Plaintiff that he had observed the locomotive move over a crossing without its "ditch lights." Defs. UMF 13. Sheets told Plaintiff that he needed to examine the locomotive data recorder to determine the train's speed at the crossing. Defs. UMF 14.
While in the locomotive, Sheets noticed that Plaintiff had a cell phone in the locomotive cab. Defs. UMF 16. Plaintiff claims that the phone was powered off, but that he had been using the calculator functions earlier. Defs. UMF 17. While in the cab, Sheets observed the phone vibrating.*fn1 Defs. UMF 18. Sheets ordered Plaintiff to show him the phone. Defs. UMF 19. An argument ensued between Sheets and Plaintiff, with Plaintiff claiming the phone was off, and Sheets claiming he had heard it vibrate. Defs. UMF 20. As the argument escalated, Plaintiff claims that Sheets called him a "liar," and then made statements to the effect of "you are not a true Christian, Christians don't lie," and "I've seen you witnessing . . . to fellow railroaders about the Bible. So if you were a Christian, you shouldn't lie." Defs. UMF 21. These are the only statements Sheets made regarding religion. Defs. UMF 22. Plaintiff was scared when Sheets yelled at him. Pltf. UMF 4. Plaintiff was suspended for 20 days without pay because of the alleged cell phone use and for allegedly not having the ditch lights on. Plaintiff's Statement of Facts ("Pltf. UMF") 2.
Prior to July 5, 2009, Plaintiff had not met Sheets, nor experienced any discrimination or harassment on account of his race or religion. Defs. UMF 25. Plaintiff admits that Sheets tested all employees regardless of race or nationality. Defs. UMF 26.
D. Plaintiff's complaint to Human Resources On July 14, 2009, Plaintiff submitted a formal complaint to the BNSF HR Department. Defs. UMF 27. In the complaint, he described the incident of July 5, 2009. He claimed to have been subjected to religious harassment by Sheets and, because Sheets had mistaken him for another African-American employee, he claimed the statements were racially motivated. Defs. UMF 28. BNSF Human Resources began an investigation as the result of Plaintiff's complaint. Defs. UMF 29. At the initiation of the investigation, BNSF issued a warning regarding its policy which prohibits any retaliatory act against a complaining employee. Defs. UMF 30. As a result of the investigation, Sheets was formally reprimanded and was required to undergo anger management training. Defs. UMF 31. The reprimand letter included language that any further incident or failure to comply could result in discipline, to include termination. Defs. UMF 32. Sheets was not suspended, docked pay or demoted. Pltf. UMF 3.
Plaintiff claims that Sheets continued to harass him. Defs. UMF 33. The "harassment" consisted of "glaring looks of anger and discontent." Defs. UMF 34. Plaintiff believes the harassment "intensified" because Sheets never apologized to him personally. Sheets did, however, send a written apology. Defs. UMF 35.
BNSF put Sheets on a "Performance Improvement Plan" ("PIP") for complaints about his "management style" before the incident with Plaintiff. Pltf. UMF 17. In a review, Sheets indicated that "one of the areas that I have struggled with is keeping my personal feeling in check." Pltf. UMF 18. Sheets also indicated in a review that "I have attended voluntary counseling to work on the personality conflict and have identified the areas of my personality that cause me to struggle with individuals of differing positions." Pltf. UMF 19.
E. Witness Crystal Thomas Crystal Thomas is an employee of Rezenberger, a contractor with BNSF that provides shuttle services for BNSF employees. Pltf. ...