Nguyen vs. Roth Staffing Companies, L.P.

¶10.) Plaintiff pleads that as a result of Defendants’ creation of a hostile and discriminatory environment she had no choice but to quit on or about March 18, 2019. (Id ¶23.)

ISSUE NO. 1: Plaintiff’s First Cause of Action (Violation of FEHA based on Gender Discrimination, Sexual Harassment and/or Retaliation, and Failure to Take Steps Necessary to Prevent Harassment) fails as a matter of law and there is no triable issue of material fact when Defendant Fister Tax Service, Inc. was not an “employer” as defined at Government Code § 12926(d).

As a threshold matter, Defendants argue that pursuant to Government Code §12926(d) “’Employer’ includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly....”, and Defendant did not employ five or more persons during the relevant period. In the Separate Statement, Fact No. 41 states, “In 2018 and 2019, at any given time, Roth only placed one of their temporary employees at FTS. There were possibly two or three occasions that Nguyen trained Castenos at FTS so that she could fill in when Nguyen couldn’t come into work at FTS. But, other than those occasions, Castenos and Nguyen did not work together. Nguyen was Roth’s only temporary employee at FTS between December 22, 2018, through March 21, 2019.”

In response, Plaintiff argues under the definition of “regularly employing”, of Cal. Code Regs., tit. 2, § 11008, Defendant FTS is subject to FEHA. Cal. Code Regs., tit. 2, § 11008 provides:

“(e) “Employer.” Any person or individual engaged in any business or enterprise regularly employing five or more individuals, including individuals performing any service under any appointment, contract of hire or apprenticeship, express or implied, oral or written. “(1) “Regularly employing” means employing five or more individuals for any part of the day on which the unlawful conduct allegedly

occurred, or employing five or more employees on a regular basis.”

However, Plaintiff’s evidence is not persuasive.

First, Plaintiff argues that between 2017 and until the end of Plaintiff’s employment with FTS, Roth placed six ambassadors with FTS. [Boxer Decl. ¶ 7; Ex. 6, Siebert Dep. 140:17 20.] However, placement in 2017 is irrelevant. This deposition testimony does not definitively state how many “ambassadors” Roth placed with FTS between 12/22/2018 and 3/21/2019 (the 3 month period of Plaintiff’s employment.)

Second, in Plaintiff’s Separate Statement Nos. 7, 8, 9, she seems to provide evidence that Defendants had 5 employees including Fister during the relevant period: 1) Scott Hasson (IT) (Boxer Decl.¶4, Ex. 3, Fister PMK Dep.22:20-21:1), 2) Akela Shin (tax assistant) (Boxer Decl.¶4, Ex. 3 Fister PMK Dep. 23:25-24:6), 3) Plaintiff 4) Madeleine Castenos (Boxer Decl., Ex. 4 Nguyen Dep. 31:21-32:2, Ex. 5 Fister Depo. 92:13-18)), 5) Fister.

Notably, however, as to Ms. Shin, Fister testified: “A. Yeah. But she left for a little while because she was going back to college, and she's also a Polynesian dancer. So she has other interests, and so she actually left for a couple years. She wasn't here when Alana was here -- or excuse me, Ms. Nguyen. “Q. So is it your best recollection, then, Ms. Shin was not working at Fister Tax in the year 2019 or 2018 when Ms. Nguyen was working at Fister Tax? “A. Right, yes.” [Ex. 5, Pg. 24:19-24.]

In reply, Defendant also provides deposition testimony from Mr. Fister that Scott Hasson (the IT person) was a contractor. (Evidence in Support of Reply Ex. A, page 21:22-23)

Therefore, because Defendant FTS was not regularly employing five or more persons

during the relevant period, summary adjudication should be granted as to claims based on Gender Discrimination, Retaliation, and the Failure to Take All Steps Necessary to Prevent Harassment and Retaliation.

However, the analysis does not end there as to Sexual Harassment. Defendants concede, relative to the Sexual Harassment claim of the First Cause of Action, it is subject to a “one employee” rule as codified at Government Code Section 12940(j)(4)(A). Defendant FTS clearly employs more than one person.

As to Sexual Harassment, Defendants argue there is nothing in this case brought by Nguyen that establishes an objectively hostile or abusive work environment.

However, pursuant to Gov. Code §12923(e), “Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues ‘not determinable on paper.’” Indeed, Defendants’ Fact No. 103, relating to whether the environment was severe or pervasive, is disputed by Plaintiff. In disputing this fact, Plaintiff states:

“Fister’s harassment began immediately after Plaintiff started her employment with FTS and occurred on an almost daily basis until her employment with FTS ended. Fister’s comments to Plaintiff included, but are not limited to, “you look amazing today,” “you look beautiful,” and “you look great,” all of which made Plaintiff feel uncomfortable. Fister often complimented Plaintiff’s attire and her physical appearance—in fact, Fister admitted to saying “I want you to know that you look beautiful today,” and “you have the right voice for a receptionist it’s soothing and even sexy” to Plaintiff. Fister admitted to calling Plaintiff “beautiful” knowing that he “probably shouldn’t have said that.” Fister further admitted to sending inappropriate text messages to Plaintiff, which he deleted. For example, Fister sent Plaintiff the text message: “You bring sunshine to the office

with your lovely smile and soothing voice.” On another occasion, Fister sent Plaintiff the text message “I can always give you a back rub any time if you need it.” Fister admitted to offering a back rub to Plaintiff at least twice, including in person. Plaintiff refused Fister’s offer for a back rub. Fister even complained to Plaintiff about his desire to have sex with his wife, and that his wife was too tired to satisfy his sexual desires. Fister often referred to Plaintiff as “my dear.” Fister often found excuses to put his hands on Plaintiff, such as by moving her hair away from her face, or putting his hand on her shoulder. Fister first began touching Plaintiff without her consent when he began training her. Fister touched Plaintiff’s face and her body under the pretext of “removing lint” from her top. Plaintiff never gave Fister permission to touch her.”

(Boxer Decl. ¶¶ 5, 6; Ex. 4, Nguyen Dep. 40:9-23, 44:18-45:1, 48:6-22, 59:14-62:14, 77:3-11, Ex. 5, Fister Dep. 59:21-23, 65:15 24, 67:9-68:8, 73:11-75:19, 82:12-84:4, 133:3-135:25, 137:25-138:15, 140:2-11, 144:7-147:17.)

As such, the jury should determine this issue. SAI as to the sexual harassment claim of the 1st cause of action is DENIED.

ISSUE NO. 2: Plaintiff’s First Cause of Action (Violation of FEHA based on Gender Discrimination, Sexual Harassment and/or Retaliation, and Failure to Take Steps Necessary to Prevent Harassment) fails as a matter of law and there is no triable issue of material fact when Defendant Gerald L. Fister as a supervisory employee cannot be held liable for Gender Discrimination, Retaliation or Failure to Take Steps Necessary to Prevent Harassment pursuant to the holdings of Reno v. Baird (1998) 18 Cal.4th 640 [finding that supervisory employees cannot be held liable for employment discrimination] and Jones v. Torrey Pines Partnership (2008) 42 Cal.4th 1158 [finding that supervisory employees cannot be held liable under FEHA for their retaliatory acts.].

This Issue is a non-issue. The 1st cause of action of the Complaint itself indicates that, “Plaintiff alleges only harassment against FISTER but all claims against all other Defendants.”

ISSUE NO. 3: Plaintiff’s Second Cause of Action (Wrongful Constructive Termination in Violation of Public Policy) fails as a matter of law and there is no triable issue of material fact when neither Defendant Fister Tax Service, Inc. nor Gerald L. Fister was the “employer” of Plaintiff Nguyen, or when workplace conditions at Fister Tax Service, Inc. were not objectively intolerable and when reasonable alternatives existed not to work there.

As to the 2nd cause of action for Wrongful Constructive Discharge in Violation of Public Policy, this cause of action is based on FEHA (Complaint¶35.) As such, it appears barred for the same reasons set forth above.

Summary Adjudication is GRANTED as to the 2nd cause of action.

ISSUE NO. 4: Plaintiff’s Third Cause of Action (Wrongful Constructive Termination in Retaliation in Violation of California Labor Code Section 1102.5) fails as a matter of law and there is no triable issue of material fact when neither Defendant Fister Tax Service, Inc. nor Gerald L. Fister fall within the definition of “client employer” as codified at Labor Code Section 2810.3(a)(1)(B). Thus, coverage under Section 1102.5 does not apply to the Fister Defendants under Labor Code Section 1102.5(i).

This cause of action is based on FEHA (Complaint¶40) and Ca Lab Code§ 1102.5.

Lab. Code, § 1102.5

“(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with

authority over the employee, or to another employee ... “(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information... “(i) For purposes of this section, “employer” or “a person acting on behalf of the employer” includes, but is not limited to, a client employer as defined in paragraph (1) of subdivision (a) of Section 2810.3 and an employer listed in subdivision (b) of Section 6400.”

Defendants argue FTS was not Plaintiff’s “employer” or “any person acting on behalf of the employer.”

As to being Plaintiff’s employer, Defendants fail to set forth any law pertaining to being an “employer”, or what it means to “employ.” Defendants set forth many facts as to why FTS was not Plaintiff’s employer. For example, Roth maintained an employee file on Nguyen, which contained her application for employment, I-9 form, references, testing, W-4 and W-2 Forms, emergency contact information, acknowledgement of employee handbook, job description, and paystubs. (SUMF Nos. 3, 16, 108, 109.)

Plaintiff points to Martinez v. Combs (2010) 49 Cal.4th 35, 64 (unpaid minimum wages case) for the definition of employ: “(a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.”

To that end, Plaintiff creates a triable issue of material fact as to whether FTS was her employer with evidence that Fister exercised control over Plaintiff and her day to-day work activities (SMF 14), Fister trained supervised Plaintiff (SMF 11, 16), etc.

Notably, Defendants also seem to also argue that while they could be considered a “client employer” for the purpose of the statute, because FTS had less than 25 workers and were not being supplied by five workers at

any given time, no employment status can be formed for the purpose of Lab. Code §1102.5.

However, because Defendant failed to sustain its burden to show it was not Plaintiff’s employer, and because there are triable issues of material fact as to that issue—the Court does not need to reach the issue of whether Defendant is a “client employer”.

Furthermore, arguably Lab. Code § 1102.5(i) merely extends liability to include client employers. That is, there is no language in the statute that otherwise imposes any restrictions on the definition of “employer” for purposes of liability.

Crucially, however, it does not appear that any retaliation occurred here.

Plaintiff pleads in the Statement of Facts portion of the Complaint:

“24. Following PLAINTIFF’S termination of employment, Ultimate Staffing contacted PLAINTIFF. PLAINTIFF communicated the sexual harassment she had experienced with FISTER to Ultimate Staffing. PLAINTIFF was told that Ultimate Staffing would attempt to find her another job.”

Additionally, in the 3rd cause of action she pleads:

“44. As described above, DEFENDANTS retaliated against PLAINTIFF after she complained to Birdy. Specifically, DEFENDANTS constructively terminated PLAINTIFF after refusing to take steps to rectify the harassing, discriminatory and dangerous working conditions.”

Defendant argues that Nguyen had already left her placement at FTS and had requested other assignments after her return from vacation. (Dep. Nguyen, 63:9-15, 67:3 4). That is, Defendants argue there was no retaliation for complaining about Fister’s conduct because Plaintiff complained only after she left the position at FTS.

In opposition, Plaintiff argues she engaged in a protected activity by opposing Fister’s

sexual harassment, as Plaintiff brought up her boyfriend and Fister’s wife to do so. (SMF 57, 58). Hence, she is suggesting that there was some form of complaint made before she left FTS’ employment. However, here, there is no evidence of a complaint, let alone retaliation for making a complaint.

Rather, she appears to have complained to “Bertie” only after she left FTS.

As such, the Motion is GRANTED as to Third Cause of Action for Wrongful Constructive Termination in Retaliation in Violation of California Labor Code Section 1102.5. (Issue 4.)

ISSUE NO. 5: Plaintiff’s Fourth Cause of Action (Negligent Hiring, Supervision and/or Retention) fails as a matter of law and there is no triable issue of material fact when neither Defendant Fister Tax Service, Inc. nor Gerald L. Fister was the “employer” of Plaintiff Nguyen. She was a contract employee of Co-Defendants Roth Staffing Companies dba Ultimate Staffing Services. There is a complete absence of evidence to show negligent hiring, supervision and/or retention on part of the Fister Defendants.

As established above, there are triable issues of material fact as to whether FTS was Plaintiff’s employer.

Defendants also argue that FTS had no knowledge or awareness of Fister’s propensity to engage in sexual harassment. Defendants argue there is no prior history of sexual misconduct. (SUMF No. 74).

Plaintiff argues that FTS received a complaint in January 2019 that Fister’s comments on a female applicant’s physical appearance made her feel “uncomfortable.” (SMF 25, Boxer Decl. ¶ 7; Ex. 6, Siebert Dep. 180:16 190:5.)

It appears that, in response to the complaint, FTS took no action, and permitted Fister to continue supervising female employees at FTS. (SMF 28 30).

As such, there are triable issues of material fact as to whether FTS knew of Fister’s propensity to make employees feel uncomfortable.

Defendants also argue that negligent supervision is barred by workers’ compensation exclusivity. In support of this argument, Defendants cite to several cases, none of which are on point: • Jones v. Dept. of Corrections and Rehabilitation (2007) 152 Cal. App. 4th 1367, 1384 (claims of emotional distress and assault and battery were barred by workers' compensation exclusivity rule.) • Coit Drapery Cleaners, Inc. v. Sequoia Inc. Co. (1993) 14 Cal. App. 4th 1595, 1605- 1606 (Insurance Code § 533 precludes coverage of former employee's allegations of wrongful termination and sexual harassment). • Riley v. Southwest Marine, Inc. (1988) 203 Cal. App.3d 1242, 1247, fn. 3, 1259. (Dealt with the issue of a special employment relationship.)

None of these cases appear exactly on point; and thus, Defendants fail to establish that, as a matter of law, workers compensation exclusivity rule bars this cause of action.

As such, the motion is DENIED as to the 4th cause of action for Negligent Hiring, Supervision and/or Retention. (Issue 5)

ISSUE NO. 6: Plaintiff’s Fifth Cause of Action (Intentional Infliction of Emotional Distress) fails as a matter of law and there is no triable issue of material fact when neither Defendant Fister Tax Service, Inc. nor Gerald L. Fister engaged in any “outrageous conduct” that would be so extreme as to exceed all bounds tolerated in civilized society or when there is no evidence that Plaintiff suffered “severe emotional distress.”

Defendant argues, “Without adequate proof of outrageous conduct by Fister or FTS and no showing by Nguyen that her emotional distress was severe, the IIED claim fails as a matter of law.” (Motion page 17:13-14). However, there are triable issues of material

fact as to whether Fister’s conduct was sufficiently outrageous in the alleged sexual harassment of Plaintiff. Whether Plaintiff sufficiently suffered emotional distress from the conduct should be presented to the jury. [See Plaintiff’s SMF No. 62.]

The motion as to ISSUE 6 is DENIED.

ISSUE NO. 7: Plaintiff’s Sixth Cause of Action (Sexual Battery) fails as a matter of law and there is no triable issue of material fact when neither Defendant Fister Tax Service, Inc. nor Gerald L. Fister engaged in a “harmful or offensive contact” and/or the Plaintiff did not suffer a “sexually offensive contact.” Civil Code Section 1708.5(a) defines sexual battery as a harmful or offensive contact with an intimate part of another. Intimate Part has been defined at Section 1708.5(d)(1) to mean, “the sexual organ, anus, groin, buttocks of any person, or the breast of a female.”

In support of their arguments, both sides cite to Ca Civ Code §1708.5.

Civ. Code, § 1708.5 “(a) A person commits a sexual battery who does any of the following: “(1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results. “(2) Acts with the intent to cause a harmful or offensive contact with another by use of the person's intimate part, and a sexually offensive contact with that person directly or indirectly results. “(3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results. “(d) For the purposes of this section: “(1) “Intimate part” means the sexual organ, anus, groin, or buttocks of any person, or the breast of a female.”

Here, there is no evidence that Fister touched an intimate part of Plaintiff’s body. Rather, it appears he touched her face, hair, and shoulder, and removed a piece of lint off her shirt (but not her breast). However, Plaintiff

points to no evidence that he touched any intimate part of her body. [See Plaintiff’s SMF No. 52.]

The motion is therefore GRANTED as to the 6th cause of action for Sexual Battery (Issue No. 7.)

ISSUE NO. 8: Plaintiff’s Seventh Cause of Action (Violation of the Ralph Act – Violence or Intimidation by Threat of Violence – Cal. Civ. Code §§ 51.7, 52 and 52.1) fails as a matter of law and there is no triable issue of material fact when neither Defendant Fister Tax Service, Inc. nor Gerald L. Fister engaged in any violence or intimidation by threat of violence to Plaintiff.

In the 7th cause of action, Plaintiff pleads:

“67. As alleged above, FISTER intentionally and recklessly committed an act of violence or a threatened act of violence upon PLAINTIFF’S person touching her face and boobs without her consent”

[Complaint¶67.]

Our Court of Appeal explained in Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1289–1291:

“The Bane Act prohibits interfering “by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.” (§ 52.1, subd. (a).) “Speech alone is not sufficient to support an action ..., except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.” (§ 52.1, subd. (j).)

“The Ralph Act is an antidiscrimination scheme. Section 52, subdivision (a), states: “Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual damages....” Section 51, subdivision (b), is the Unruh Civil Rights Act, California's basic anti-discrimination statute, forbidding bias based on “sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.”

Sections 51.5 and 51.6 prohibit, respectively, boycotts or blacklists based on protected characteristics as described in the Unruh Civil Rights Act and gender-based pricing, respectively. Section 51.7, subdivision (a), states that everyone in California has “the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in **294 subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics.

The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.”

“There is no evidence that either statute has any relevance to this matter. “The Bane Act and related statutes ‘are California's response to [the] alarming increase in hate crimes.’ ...“[T]o state a cause of action under section 52.1 there must first be violence or intimidation by threat of violence. Second, the violence or threatened violence must be due to plaintiff's membership in one of the specified classifications set forth in Civil Code section 51.7 or a group similarly protected by constitution or statute from hate crimes.” (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 111, 80 Cal.Rptr.2d 60.) Plaintiffs do not even allege violence, and therefore the Bane Act claim must fail.

“Under the Ralph Act, a plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or

their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that the defendant aided, incited, or conspired in the denial of a protected right. (See CACI No. 3063; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 880-881, 57 Cal.Rptr.3d 454.) Again, plaintiffs allege no violent act, arguing defendants “conspired” against them due to their “medical conditions.” Once again, they offer no evidence to establish defendants discriminated against them, but claim “quite possibly” this animus should be inferred. We decline to substitute speculation for evidence, and find no triable issue of material fact as to this cause of action.”

[Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1289–1291.]

Here, even in viewing the evidence and inferences “in the light most favorable to the opposing party” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843), this Court is hard pressed to find that removing a piece of lint, touching Plaintiff’s hair, and hovering over her (Plaintiff’s Opp page 19:8-17) constitutes violence or threat of violence for which these Acts were designed to prevent. Again, while Fister’s conduct was potentially harassing, it does not appear to be violent or threatening of violence to support this cause of action.

Therefore, the motion as to the 7th cause of action (Issue No. 8) is GRANTED.

ISSUE NO. 9: Plaintiff’s Eighth Cause of Action (Failure to Pay All Wages Due Upon Separation – Cal. Labor Code §§ 201, 202, 203) fails as a matter of law and there is no triable issue of material fact that Defendant Fister Tax Service, Inc. failed to pay all wages due to Plaintiff Nguyen when the responsibility to pay wages was upon her employer Roth Staffing Companies dba Ultimate Staffing Services and Plaintiff is uncertain she has not been paid all her wages.

ISSUE NO. 10: Plaintiff’s Ninth Cause of Action (Waiting Time Penalties) fails as a matter of law and there is

no triable issue of material fact since there is no listed Ninth Cause of Action of the Complaint and there is no evidence that Defendant Fister Tax Service, Inc. failed to pay all wages due to Plaintiff Nguyen when the responsibility to pay wages was upon her employer Roth Staffing Companies dba Ultimate Staffing Services and Plaintiff is uncertain she has not been paid all her wages.

At Footnote 1 on page 2 of Plaintiff’s Opposition she states, “Plaintiff does not challenge issues related to Plaintiff’s Causes of Action Nos. 8 and 9 (issues 9 and 10, respectively, in Defendants’ Motion for Summary Judgment), alleged in the operative complaint, regarding Plaintiff’s wage and hour issues only.”

Based on this concession, the motions as to Issues 9 and 10, relating to the 8th and 9th causes of action are GRANTED.

ISSUE NO. 11: Plaintiff is not entitled to punitive damages against Defendants Fister Tax Service, Inc. or Gerald L. Fister because she cannot show, by clear and convincing evidence, that Fister Defendants engaged in oppressive, fraudulent, or malicious conduct, or each ratified the same.

Whether Defendants conduct was sufficiently oppressive, fraudulent, or malicious based on the facts and evidence raised herein should be determined by the jury.

The motion as to Issue 11 (relating to punitive damages) is DENIED.

Objections are improperly formatted and will not be ruled on. [CRC 3.1354(c).]

The Case Management Conference will proceed as scheduled.

Defendants to give notice.