United States District Court, E.D. California
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
MENDEZ, UNITED STATES DISTRICT JUDGE.
Eyraud (“Plaintiff” or “Eyraud”) sued
Swift Transportation Co. of Arizona, LLC
(“Defendant” or “Swift”) for
violations of California's Fair Employment and Housing
Act (FEHA). Compl., ECF No. 1-1. Swift now moves for summary
judgment. Mot., ECF No. 14. Eyraud opposes Defendants'
motion. Opp'n, ECF No. 15. For the reasons set forth
below, the Court GRANTS Defendants' motion.
FACTUAL AND PROCEDURAL BACKGROUND
is a trucking company that holds safety as a priority in its
operations, and expects its drivers to be able to back up
their trucks safely. Undisputed Material Fact
(“UMF”) 2-3, ECF No. 15-1, pp. 2-3. Swift hired
Plaintiff as a truck driver in February 2015. UMF 1. At the
time of hiring, Eyraud was 66 years old. Id. After
several months of driving, Eyraud began driving solely for
Swift's account with Amazon. Eyraud Dep., ECF No. 14-2,
January 2016, Amazon reported to Swift that Eyraud had backed
his truck into a set of rollers on Amazon's property.
Schrock Decl., ECF No. 14-3, p. 2. Eyraud disputes that this
was an accident. Eyraud Dep., ECF No. 14-2, p. 77. Eyraud
later wrote Swift that Amazon “put these flats of
rollers right next to where we're supposed to back up our
trucks to floating metal ramps and I touched this thing, but
there were no damage and no report because no damage.”
Eyraud Dep., Ex. 15, ECF No. 14-2, p. 138. In his deposition,
Eyraud testified that the “thing” he
“touched” while backing up was
“possibly” the rollers Amazon reported he hit.
Eyraud Dep. at 164.
the Amazon complaint, another Swift driver, Tamara Evans,
submitted a written complaint to Swift that Eyraud had hit
her truck while backing up. Schrock Dep., Ex. 1, ECF No.
14-3, pp. 6-7. Evans details that after Eyraud hit her
trailer, she confronted him and he claimed “he just
scratched it . . . no big deal.” Id.
Evans further detailed that Eyraud “had no clue how to
do basic backing” and she had to back up his truck for
him. Id. Eyraud does not recall the events in
Evans's letter. Eyraud Dep. at 78.
February 2016, Swift sent Eyraud to Lathrop, California to
work with a trainer, Dennis Rogers, on his backing skills.
Eyraud Dep. at 78-80. Eyraud believes that Rogers verbally
told him that he passed the one-day training. Id.
Swift's records indicate that Rogers reported Eyraud had
failed the training. Schrock Decl. at 3.
sent Eyraud down to its Phoenix terminal in March 2016 to
trade in his truck and receive additional back-up training
from John Kramer. Eyraud Dep. at 82-83. For three days,
Eyraud worked with Kramer on how to back-up his truck safely.
Id. at 83-84. Eyraud recalls Kramer telling him
once, “You're old and brittle, and you have to turn
around to look to see where the trailer is going” when
backing up. Id. at 23. Eyraud never complained about
or reported this comment to Swift during his employment.
reported to Swift that Eyraud was not able to safely back-up
a truck. Schrock Decl., Ex. 3, pp. 2-9. Kramer stated that
Eyraud struggled to understand the concept of backing and
rated him a 2 out of 10 on his backing skills after two days
of class. Id. at 4. After the third day of class,
Kramer determined that Eyraud had failed and there was
nothing else he could do with him. Id. at 2. During
this training, Kramer reported that Eyraud jackknifed the
truck twice, Eyraud Dep., Ex. 13, ECF No. 14-2, p. 135;
however, Eyraud does not believe jackknifing is problematic.
Eyraud Dep. at 119.
those three days of training, Swift did not replace
Eyraud's truck. Id. at 82-83. Instead, Swift had
Eyraud take a bus back from Phoenix. Id. at 101.
at Swift determined, based on the information provided by
Rogers and Kramer, that Eyraud was not a safe driver in a
close quarters backing situation. Lauletta Decl., Ex. 1, pp.
2-4. On April 1, 2016, Eyraud's supervisor, Trevor
Schrock, called Eyraud to terminate him. Eyraud Dep. at 102.
Following his termination, Eyraud submitted a feedback report
to Swift regarding his termination. Eyraud Dep., Ex. 15, ECF
No. 14-2, p. 138. In that report, Eyraud voiced disapproval
for the reasons he was terminated. Id. He also
admitted that he had a hard time with backing up a full-sized
truck after driving a smaller truck for five to six months.
Id. Swift reiterated that Eyraud's termination
was final after he failed backing trainings in both Lathrop
and Phoenix. Id. at 137.
than Kramer's remark that Eyraud was “old and
brittle, ” Eyraud recalls one other age-related remark
made during his employment at Swift. Id. at 30-31.
An intake coordinator, Ben Brown, asked Eyraud,
“Exactly how old are you?” Eyraud Dep. at 27-31.
Eyraud found the question inappropriate and did not respond.
Id. He never complained about or reported the
question during his employment. Id. at 100-01.
claims that Swift's termination of him constituted age
discrimination because he had driven for another trucking
company for over a year without being fired and received a
safety award from that company while home with a broken hand.
Id. at 171-72.
brought suit in San Joaquin County Superior Court on March
14, 2017, alleging: (1) harassment based on age in violation
of FEHA, California Government Code §§ 12940 and
12941; (2) discrimination based on age in violation of FEHA,
California Government Code §§ 2940 and 12941; (3)
retaliation based on age in violation of FEHA, California
Government Code §§ 12940 and 12941; and (4)
retaliation and wrongful termination in violation of public
policy. Compl. at 2-20. Swift removed this action to federal
court on diversity grounds. Notice of Removal, ECF No. 1.
Swift seeks summary judgment on all of Eyraud's claims,
as well as on Eyraud's request for punitive damages. Mot.
Claim I: Age Harassment
first cause of action alleges that Swift harassed him based
on age in violation of FEHA §§ 12940 and
12941.Compl. at 2-8. Swift argues this claim
fails as a matter of law. Mot. at 17.
prohibits age-based harassment of employees. Cal. Gov't
Code § 12940(j)(1). FEHA-qualifying harassment is
“conduct outside the scope of necessary job
performance, conduct presumably engaged in for personal
gratification, because of meanness or bigotry, or for other
personal motives, ” rather than “performance of
necessary personnel management duties.” Reno v.
Baird, 957 P.2d 1333, 1336 (Cal. 1998). “To
establish a claim for harassment, a plaintiff must
demonstrate that: (1) [he] is a member of a protected group;
(2) [he] was subjected to harassment because [he] belonged to
this group; and (3) the alleged harassment was so severe that
it created a hostile work environment.” Lawler v.
Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir.
is no dispute that under FEHA Eyraud qualifies as a member of
a protected group because he is over the age of 40. The Court
also assumes without deciding that he was subject to
inappropriate comments based on his age, rather than other
characteristics. The primary dispute is whether the comments
Eyraud alleges rise to the level of creating a hostile work
behavior so objectively offensive as to alter the
‘conditions' of the victim's employment”
creates a hostile work environment. Lyle v. Warner Bros.
Television Prods., 132 P.3d 211, 222 (Cal. 2006). A
hostile work environment is one that “is permeated with
‘discriminatory intimidation, ridicule, and insult,
' that is ‘sufficiently severe or pervasive to
alter the conditions of the victim's employment and
create an abusive working environment.'” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65
(1986)) (internal citations omitted). Whether a work
environment is hostile is determined by looking at the
totality of the circumstances, including “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 ...