Ariel Long v. Kaneka Medical America, LLC, et al.

ANALYSIS I. Harassment Toda argues that Plaintiff fails to allege he engaged in severe or pervasive conduct that amounts to harassment, and that personal decisions cannot form the basis of a harassment claim. “Actionable harassment consists of more than “annoying or “merely offensive’ comments in the workplace,” and it cannot be “occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” [Citation.]

Whether the harassment is sufficiently severe or pervasive to create a hostile work environment “must be assessed from the “perspective of a reasonable person belonging to [the same protected class as] the plaintiff.”? [Citation.] In making this assessment, [courts] consider several factors, 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 an employee’s work performance.”? [Citation.]? (Cornell v.

Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 940.) FEHA distinguishes between discriminatory conduct and harassment.”[H]arassment is generally concerned with the message conveyed to an employee, and therefore with the social environment of the workplace, whereas discrimination is concerned with explicit changes in the terms or conditions of employment.” (Roby v. McKesson Corp (2009) 47 Cal.4th 686, 708 (Roby).)?? [T]he exercise of personnel management authority properly delegated by an employer to a supervisory employee might result in discrimination, but not in harassment.”? (Reno v.

Baird (1998) 18 Cal.4th 640, 646.) However,” some official employment actions done in furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias. [Citation]? (Roby, supra, 47 Cal.4th at p. 709) In Roby, the court concluded that “some actions that [the defendant] took with respect to [the plaintiff] are best characterized as official employment actions rather than hostile social interactions in the workplace, but they may have contributed to the hostile message that [the defendant] was expressing to [the plaintiff] in other, more explicit ways.

These would include? shunning of [the plaintiff] during staff meetings,” belittling of [her] job, and’ reprimands of [the plaintiff] in front of [her] coworkers.” (Ibid.) Here, Plaintiff alleges that Toda excluded her from meetings she had previously attended, implemented a new structure that promoted male employees over female employees, refused to engage with her complaints about discrimination, and attempted to hang up the call (Compl. ¶¶ 16-17.) Plaintiff further alleges that following her HR complaint in August 2023, Toda retaliated by further demoting and ostracizing her, stripping her of job duties, denying her bonus and promotion, excluding her from meetings, and relegating her and two other women to a newly created department (Compl. ¶¶ 18-19.)

She also alleges that on multiple occasions following business development meetings, Robert Abrams told her that management did not appreciate Plaintiff speaking at the meetings because “she was a woman and in Japanese culture, women are demure and silent? (Compl. ¶ 15.) First, nowhere in the Complaint does Plaintiff allege that Toda

instructed Abrams to make those comments to Plaintiff. Therefore, the Court does not consider that allegation in ruling on this motion. Second, Toda’s alleged exclusion of Plaintiff from meetings, denial of a full bonus, and demotions of women and promotions of men are personnel management decisions which support a discrimination claim, but not necessarily a harassment claim. The Court recognizes that every act of sex discrimination potentially communicates some message of bias. However, that does not mean, and Roby did not hold, that every instance of gender discrimination communicates a message of bias that can serve as the foundation for harassment.

In Roby, the allegedly harassing personal action was not simply the assignment of promotions or demotions, but shunning, belittling, and reprimanding in front of the plaintiff’s coworkers. The Court concludes that Toda’s alleged conduct, while potentially constituting discrimination, does not, by itself, support a claim of harassment. To hold otherwise would eliminate the limitation of supervisory liability to harassment rather than discrimination claims. (See Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 932-933 [?[A] supervisor can be liable for harassment but not discrimination; the Legislature did not make co-employees liable under the FEHA?s discrimination provision. (§ 12940, subd. (a).)”].)

Accordingly, the motion for judgment on the pleadings is granted with leave to amend as to the second cause of action. II. Intentional Infliction of Emotional Distress “The elements of the tort of intentional infliction of emotional distress are:”?(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. . . .”

Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” [Citation.] The defendant must have engaged in “conduct intended to inflict injury or engaged in with the realization that injury will result.” [Citation.]? (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)? It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Ibid.)?

In order to avoid a demurrer, the plaintiff must allege with “great[] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]? (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)???[B]ehavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.”? [Citations.]? (Smith v.

BP Lubricants USA Inc (2021) 64 Cal.App.5th 138, 147 (Smith).)? Whether behavior is extreme and outrageous is a legal determination to be made by the court, in the first instance.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 172; but see Smith, supra, 64 Cal.App.5th

at p. 148 [?[W]hether conduct is outrageous is??usually’ a question of fact.” [Citation]”].) “Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” (Janken v.

GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) As explained above, Plaintiff’s allegations against Toda are all personnel management decisions. Plaintiff cites Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 101-102, for the proposition that the Janken “personnel-management’ rule that bars routine employment decisions from supporting an IIED claim is not absolute. (Opp. at pp. 13:17-14:3.) However, the facts in Light go well beyond those alleged here. In Light, one of the plaintiff’s supervisors “ostracized [the plaintiff] in the workplace, encouraged [her] to lie to investigators, pursued [her] at home and in the office to determine whether [she] did so, and verbally and physically attacked [her] after [she] disobeyed.” (Light v.

Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 102.) Moreover, the court in Light affirmed the trial court’s grant of summary judgment regarding another supervisor whose conduct “likely contributed to the Department’s violation of FEHA?s antiretaliation provision’ because “her actions are common’though ultimately misguided’supervisory actions.” That is what is alleged here: common, if potentially discriminatory supervisory action. Accordingly, the motion for judgment on the pleadings is granted with leave to amend.

CONCLUSION Toda’s Motion for Judgment on the Pleadings is granted with leave to amend. Plaintiff shall have 30 days from the date of this order to amend the complaint regarding the second and seventh causes of action against Toda. Home -->)" -->