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Ferrellgas’s business is the transportation and installation of propane gas, a hazardous material regulated by the United States Department of Transportation (DOT).

Tom Faley was hired by Ferrellgas as a driver in 2016. On March 11, 2018, Faley was promoted to one of the district manager positions and in this role was directly supervised by Denise Whisman. Whisman was the general manager of Ferrellgas’s service center in San Diego (where Faley worked), and oversaw the center’s operations and employees. Two district managers reported to Whisman.

In June 2018, e-mails between Faley and Whisman document Faley’s deficiencies (primarily with customer and employee communication) and their back and forth to provide Faley with adequate training for his new role and to manage the work effectively. In August 2018, Faley underwent his first performance review as district manager with Whisman. Whisman reported that Faley was deficient in two areas, customer retention and business growth, and was meeting expectations in three others.

Performance problems continued and were well documented between Faley and Wishman for the next year. Ultimately in July 2029 . Whisman told Faley he was being terminated for performance reasons. Faley asked if he could stay on as a driver or technician, since the problems were related to his management. Whisman said no, and shortly after Faley was escorted from the premises.

Faley brought suit against Ferrellgas for retaliation under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), failure to prevent retaliation under FEHA, retaliation under Labor Code section 1102.5, wrongful termination against public policy, and intentional and negligent infliction of emotional distress.

After discovery, Ferrellgas brought a successful motion for summary judgment against Faley. The trial court found that Faley failed to show that Ferrellgas’s “legitimate, documented non-retaliatory reasons” for terminating his employment were mere pretext and that no triable issue of fact was raised as to Faley’s claims for retaliation.

The trial court also found Faley’s claims for intentional and negligent infliction of emotional distress were not actionable because nothing in the record gave “rise to the sort of ‘outrageous, or ‘despicable’ conduct” necessary to support those causes of action and that they were barred by the exclusivity provisions of the Workers’ Compensation Act.

The Court of Appeal affirmed the dismissal of his case in the unpublished case of Faley v. Ferrellgas -D081184 (April 2024).

On appeal, Faley asserts the court erred because triable issues of fact remain as to whether Ferrellgas had a retaliatory motive for his termination. He also contends the court used the wrong legal standard for his retaliation claim under Labor Code section 1102.5, requiring reinstatement of that cause of action. Finally, with respect to his emotional distress claims, Faley asserts they are not barred by workers’ compensation exclusivity, and that triable issues of fact remain with respect to the claims.

The Court of Appeal rejected each of Faley’s arguments and affirm the judgment in favor of Ferrellgas, as it discussed its reasoning for each of the issues raised.

A cause of action for intentional infliction of emotional distress exists when there is ‘(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.

A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant’s conduct must be “intended to inflict injury or engaged in with the realization that injury will result.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

Further,an essential element of an Intentional Infliction of Emotional Distress claim is a pleading of outrageous conduct beyond the bounds of human decency.

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)