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Eyraud v. Swift Transportation Corporation

United States District Court, E.D. California

May 9, 2018

MICHAEL EYRAUD, Plaintiff,
v.
SWIFT TRANSPORTATION CORPORATION d/b/a ST SWIFT TRANSPORTATION CORPORATION; SWIFT TRANSPORTATION CO., INC.; SWIFT TRANSPORTATION COMPANY; and DOES 1-100 INCLUSIVE, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          JOHN A MENDEZ, UNITED STATES DISTRICT JUDGE.

         Michael 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.[1]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Swift 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, p. 42.

         In 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.

         Following 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.

         In 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.

         Swift 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. See id.

         Kramer 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.

         After 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.

         Supervisors 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.

         Other 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.

         Eyraud 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.

         Eyraud 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. at 23-24.

         II. OPINION

         A. Claim I: Age Harassment

         Eyraud's first cause of action alleges that Swift harassed him based on age in violation of FEHA §§ 12940 and 12941.[2]Compl. at 2-8. Swift argues this claim fails as a matter of law. Mot. at 17.

         FEHA 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. 2013).

         There 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 environment.

         “[O]nly 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 ...


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