Robles v. Agreserves, Inc. (158 F. Supp. 3d 952, 2016)

ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Anthony W. Ishii, SENIOR DISTRICT JUDGE

This is an employment discrimination dispute between Plaintiff Juan Carlos Robles (“Robles”) and his former employer, Defendant Agreserves, Inc. (“Agre-serves”), his former ■ foreman Defendant George Campo (“Campo”), and his former manager Defendant Jay Payne (“Payne”). Robles alleges claims under 42 U.S.C. § 2000e (“Title Vil”) and California state law, including violations of the California Labor Code, common law intentional torts, common counts, and the Fair Employment and Housing Act (Government Code § 12900 et seq.) (“FEHA”). The three Defendants separately move for summary judgment on all claims alleged against them. For the reasons that follow, the Defendants’ motions will be granted in part and denied in part.

SUMMARY JUDGMENT FRAMEWORK .

Summary judgment is proper when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir.2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L.Ed. 2d 265 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). A fact ds “material” if it might affect the outcome of the suit' under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir.2009). A dispute’ is “genuine” as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir.2010).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-móving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party’s claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party’s claim. See James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 923 (9th Cir.2008); Soremekun, 509 F.3d at 984. If a.moving party fails to carry its burden of production, then “the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir.2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot “ ’rest upon the mere allegations or denials of [its] pleading1 but must instead produce evidence that ’sets forth specific facts showing that there is a genuine issue for trial’.” Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.2008).

The opposing party’s evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348; Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir.2010). While a “justifiable inference” need not be the most likely or the most persuasive inference, a ‘justifiable inference1 must still be rational or reasonable. See Narayan, 616 F.3d at 899. Summary judgment may not be granted “where divergent ultimate inferences may reasonably be drawn from the undisputed facts.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir.2014); see also Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1175 (9th Cir.2003). Inferences are not drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from which the inference may be drawn. See Fitzgerald v. El Dorado Cnty., 94 F.Supp.3d 1155, 1163 (E.D.Cal.2015); Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D.Cal.2008). “‘A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial.” Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir.2002); see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir.2002). The parties have the obligation to particularly identify material facts, and the court is not required to scour the record in search of a genuine disputed material fact. Simmons v. Navajo Cnty., 609 F.3d 1011, 1017 (9th Cir.2010). Further, a “motion for summary judgment may not be defeated ... by evidence that is ’merely colorable’ or ’is not significantly probative’.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir.2005). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.

FACTUAL BACKGROUND

Agreserves is in the business of growing almonds and pistachios in Wasco, California. See DUMF 1. Agreserves has both seasonal and permanent employees. DUMF 2. Agreserves employed Robles from February 4, 2013 to April 1, 2013 as an agricultural temporary, seasonal farm laborer and sprayer, i.e. performing manual labor on the farmland. DUMF 3. Robles earned $8.75 per hour with Agreserves, and was an at-will employee. See DUMF’s 4, 5. Robles was interviewed and hired by Payne. See PUMF 31; Defendants’ Response to PUMF 31; Doc. No. 36 at 22:23-24. Payne was Agreserves Farm Production Manager and Robles’s supervisor. DUMF 6.

At the outset of Robles’s employment, Robles participated in a multi-hour orientation where Agreserves’s workplace policies where explained, including the work stoppage practices for legally compliant meal and rest periods. See DUMF 10. Agreserves’s policy is to provide all lawful and compliant meal and rest periods to its employees by ceasing operations and stopping work for all non-exempt agricultural employees. See DUMF 9.

Campo was a foreman who worked with Robles for three weeks, about February 4 to February 25. DUMF 7. Campo had no authority to hire, fire, demote, promote, or make other material changes to Robles’s employment, or with respect to any other employee. DUMF 8. However, Campo assigned Robles day to day job duties, Robles had to follow Campo’s instructions, and Campo would supervise Robles’s work. See PUMF’s 2, 3, 5; Campo Dec. ¶ 2.

During the time Robles worked under Campo, Campo would tell, Robles almost daily things like: “Your religion is nothing, less than -my religion,” or “I’m a better person than you guys because your religion is less than my religion,” or ‘You are less than me. I have a better job than you guys. I’m a Mormon and you guys are less than me,” or “My religion is on top. We are better than anyone else.” PUMF’s 74, 75, 76, 77. Robles is Catholic and Campo is Mormon. See PUMF’s 71, 73. Robles was also forced or required to participate in a Mormon prayer about 3 times, once'in the shop and twice in the field. See PUMF 78; Robles Depo. 438:19-439:23.

Around mid-February 2013, Robles and 4 or, 6 co-workers (who were Mexican) were sent to fix- part of the irrigation system. See Robles Depo. 115:2-7; Robles Dec. ¶ 9. Robles and the others were traveling from North to South on 4-wheeler motorcycles, which make a lot of noise. See Robles Depo. 115:7-9. As the group was traveling, they began to hear someone was shooting a gun. See id. at 115:9-12. Robles did not know which directions the shots were coming from. See id. at 115:12-13. After the scene became quiet, some of the coworkers said that it was Campo who fired the shots, because he was the only one who did that. See id. at 115:13-16. The group continued traveling when Robles again heard shooting “in front óf us.” See id. at 115:16-18. The group then saw a pack of coyotes running from East to West. See id. at 115:118-20. Coyotes and other vermin pose a danger to employees and the worksite, see DUMF 44; Campo Dec. ¶ 5, and the repair work that Robles was performing was due to wild animals (including coyotes) gnawing on the irrigation lines. See Robles Depo. 116:16-117:6. Robles declares that Campo was directing gunfire towards the workers; Campo declares he was shooting at the coyotes because of the dangers they pose, and he did not aim or shoot at humans. See Robles Dec. ¶ 9; Campo Dec. ¶ 5.

For three days, while working under Campo, Robles was not given the opportunity to take a meal break while at the machine shop because he was ordered to sweep. See PUMF 91; Robles Depo. 121:16-122:25. When other workers were taking a meal break, “John” (who was in charge of the mechanics) told Robles that Campo ordered Robles to sweep. ■ See PUMF 90. Also, for an additional seven days while working under Campo, Robles was not given the opportunity to take a meal break in the field because Campo said that the work was urgent and had to be finished before a break could be taken. See PUMF 92. Robles did take the state-mandated twenty minute rest periods while working under Campo. See DUMF 11.

On February 11, 2013, Campo gave Robles a ride from one worksite- to another. See DUMF’s 39, 40, 41; PUMF. 82. During the ride, Robles complained about Campo making him sweep and missing the meal break. See Robles Depo. 123:9-24, Campo then became upset, started hitting the seat, and hit Robles’s hand two or three times. See id.; DUMF 40; PUMF 82. Cam-po also became upset during a telephone call with his wife. See PUMF 88. Robles asked Campo to let him out of the car, but Campo refused and continued driving for an additional, 15 minutes. See DUMF 38; see also PÚMF 88.

Beginning in March 2013, Robles worked in a pesticide spraying crew under foreman Miguel Cervantes (“Cervantes”). See PUMF’s 12, 13. Robles complained to Cervantes and showed Cervantes a diagram that depicted how Campo was shooting coyotes and endangering Robles’s safety. See PUMF 18. Cervantes responded that he would tell Payne, who was Cervantes’s supervisor. See PUMF’s 14, 18. Robles also complained to Cervantes that Campo had hit him (Robles) while Campo was driving the truck, and that Robles had been placed in fear of his life. See PUFM 89. Robles also told Cervantes that he did not want to pray by force, and Cervantes responded, “We have to follow the orders.” PUMF 79. Robles also complained to Cervantes about Campo not allowing Robles to take meal breaks, and Cervantes responded, “We’ll look into .it.” See Cervantes Depo. 125:4-11; PUMF 96.

For twelve days while working under Cervantes, Robles was not given a meal break. See PUMF 93. Cervantes told Robles that Robles had to transport pesticide • to the sprayers in the field and if Robles took meal breaks, then the sprayers in the field would have to stop working, as they would run out of pesticide. See id. Robles’s pay checks, and payment summary from Agreserves do not show one hour of extra pay for any of the days Robles was prevented from having his meal breaks. See PUMF’s 95, 102.

On March 14, 2013, Robles was driving a tractor, and the tractor was laying down hose. See PUMF 108. Two employees were walking behind the tractor and placing the hose next to almond trees. See id. Robles had to regulate his speed so that the two workers behind him could safely perform their jobs. See PUMF 109. Robles told foreman Salvador Estrada that he (Robles) could not drive the tractor faster because the terrain was too ugly or uneven, and the hoses would fall off the trailer and injure the hose layers. See PUMF’s 35, 110,119. Estrada said that he did not care, Robles was nobody, and that Robles was to do what he was told or go home. See PUMF 111. Robles felt obligated to follow Estrada’s instructions and began to drive faster. See PUMF 113. As Robles drove faster, the two hose layers stumbled and fell. See PUMF 114. When Robles saw one of the hose layers fall and be dragged by a hose (because- he did not let go), he called Cervantes and complained that he was being forced to drive fast and at an unsafe speed. See PUMF’s 115, 117. As Robles was driving fast, the tractor’s seat became lose and got stuck forward; PUMF 121. Robles was unable to leave the tractor. Id. Another worker, who was not a mechanic and did not know how to fix a tractor seat, nevertheless tried to fix the set. See PUMF 122. Robles had stopped, but as he resumed driving, he had to loosen the seat-belt because the uneven terrain was causing him to be tossed around, which hurt his back. See PUMF 123. Robles’s knees hit the .steering wheel column of the tractor as he was driving, which injured his knees. See PUMF 124. The uneven terrain and loose tractor seat caused Robles’s knees to hit the steering column multiple times. See PUMF’s 35, 125. Plaintiff reported to another foreman (Alvaro Meza) that the seat had become loose, that he again banged himself, and that he was in a lot of pain. See PUMF 126. Robles parked the tractor about 30 minutes before the end of his shift to report his injury. PUMF 127.- Robles reported that he had been involved in a workplace accident in which he hit his knee while operating a tractor. See DUMF 14. Robles reported that he was in a lot of pain and said that if no report would be made for workers’ compensation, and if Agreserves would not send him to a doctor, then he wanted to go home. See PUMF 48..

On March 15, 2013, Robles reported his injury to Lee Brown, a farm operations manager, but Brown told Robles that he was lying and refused to create a workers’ compensation report. See PUMF 128. Robles later complained to .a 'Company Vice President about the'rough terrain, being forced to drive -at an unsafe speed, and being-injured from the tractor seat. See PUMF 129.

Also on March 15, 2013, Robles was taken to a doctor by foreman Jason Barnum in order to see if Robies had healed sufficiently to work. See PUMF’s 19, 135. Robles complained about Campo talking about religious stuff and saying that he was better than everyone else. See PUMF’s 20, 21, 80, 134. Robles' told Barnum that he had complained to Cervantes about Campo, but Cervantes had done nothing. See PÜMF’s 22, 81, 134. Robles also told Barnum that he was not being given breaks and had been forced to drive the tractor unsafely or go home. See PUMF’s 130, 131, 134. At the doctor’s office, Barnum contradicted the doctor in front of Robles, and asked the doctor to take Robles off work for a few days to rest. PUMF 136. Barnum told Robles that Robles would have to rest because Agre-serves did not have light duty work. PUMF 137. The doctor placed Robles off of work for approximately two weeks. See Robles Depo. 378:11-18.

After Robles complained about being injured on the tractor, Payne began to conduct an investigation over the workplace accident, and collected reports and statements from witnesses and employees. See DUMF 15. During Payne’s investigation into the tractor accident, he received reports that Robles had multiple negative confrontations with co-workers and supervisors. DUMF 16; see also Payne Dec. Ex. 1. Prior to March 14, 2013, no one told Payne that Robles was belligerent or insubordinate. PUMF 105. Payne ended up performing two concurrent investigations involving Robles: one for Robles’s accident, and a second related to complaints about Robles’s conduct. DUMF 17.

On March 28, 2013, Payne met with Robles to investigate both the workplace accident and Robles’s reported misconduct towards other employees. See DUMF 18. During the meeting, Payne asked Robles questions about the accident and the reported misconduct. See DUMF 19. Robles admitted to not wearing his seat belt, but refused to answer Payne’s questions about workplace misconduct. See DUMF 20. Payne perceived Robles as rude and non-cooperative. DUMF 21; see also Payne De. ¶6. Because of Robles’s conduct during the meeting, Payne told Robles to go home and write a statement about the accident and a response to the misconduct allegations against him by his co-workers. See DUMF 22. As a result of Robles’s conduct, Payne declares that he made a preliminary decision to terminate Robles, but he wanted to review Robles’s written response before making a final decision. See DUMF 23.

Later on March 28, Robles returned to Agreserves and provided a written statement to Payne. DUMD 24. Payne noted that Robles’s written statement did not address Payne’s questions, and Robles had changed his story about wearing his seat-belt. See DUMF 25. Payne made the decision to terminate Robles. See PUMF 103. After reviewing Robles’s statement, Payne declares that he finalized his decision to terminate Robles for the following reasons: (1) Robles was insubordinate to Payne; (2) Robles refused to cooperate by answering questions about reports of his (Robles’s) offensive disruptive conduct towards other employees and supervisors; (3) Robles’s refusal to answer questions about the accident and Robles’s dishonesty about wearing a seatbelt; (4) Robles failed to follow supervisors’ instructions; and (5) Robles failed to follow safe workplace practices by not wearing a seatbelt. DUMF 31. Payne was the decisionmaker who terminated Robles’s employment. DUMF 26. At the time Payne terminated Robles, Payne had no information that other employees had uttered words about Robles’s national origin or religion, that Robles had complained about missed meal or rest periods, that Robles had complained about safety issues, or that Payne was Catholic. See DUMF’s 27, 28, 29, 30. Payne had also considered a written statement from Campo, in which Campo was critical of Robles. See Payne Depo. 139:12-140:8; Guleser Dec. Ex. 19. The statement concluded by Campo stating that he would not put with Robles’s behavior again and that Robles “is a moral [sic] killer and makes everyone around him uneasy.” Id. Before Robles’s knee injury on March 14, no one suggested that Robles be terminated. See PUMF 104. Payne declared that Robles’s insubordination and misconduct were the only determinative and substantial motivating reasons for the decision to terminate. See PUMF 32.

Robles was terminated on April 1, 2013. PUMF 139. That day, Robles met with Payne and Agreserves’s HR Manager, Walter Keenan. See DUMF 33. The meeting was in a confidential, closed door setting in one of Agreserves’s conference rooms so that Payne and Keenan could explain the decision to terminate Robles and process the termination. See id. The meeting lasted about 5 minutes. DUMF 35. Within a minute or two of the start of the meeting, Robles stated that he wanted to record the meeting, and Payne and Keenan denied Robles permission to record. See Payne Dec. ¶ 11; Robles Depo. 155:19-23. Robles continued to record the meeting anyway. See Robles Depo. 155:24-156:3. When Robles started the recording, Robles, Keenan, and Payne were sitting around a table. See id. at 157:6-11.

The recording begins with Robles telling Payne and Keegan about Campo. See Robles Depo. 159:14-160:8. Robles said that Campo told others about Robles’s “situation,” that Campo spoke to others to “put them against” Robles, that Campo almost killed Robles when Campo fired a rifle near him while trying to kill coyotes, that Robles made a report against Campo, and Payne and Keenan did not care about Robles’s life. See id. As Robles was saying this, Payne tried unsuccessfully to talk to Robles three times by saying either “excuse me, Juan” or “Juan, Juan.” See id. When Payne was able to speak, he began to say, “Here’s your check. Juan, you’re ...,” but Robles interrupted and said, “No, no. You gonna — okay, what, you want to lock me in or what?” Id. at 160:14-17. Payne said, “No, no, wait.” Id. at 160:18. Robles said that he was going to go, and that he wanted the termination on paper. Id. at 160:19-20. Payne replied that they had a termination paper there, that he had looked into Robles’s allegations, and that he was terminating Robles based on his behavior at work. Id. at 160:21-161:25. Robles replied “No,” asked about Payne’s behavior and said it was illegal, and that now Payne was “try[ing] to stop me to — to get out from this door.” Id. at 161:2-5. Payne was standing near his chair (which was by the door) with his side to the door, and Robles was standing in front of Payne. See PUMF’s 147, 148; Robles Depo. 488:10-11. Payne replied that he and Kee-gan were not trying to stop Robles, and Robles told Payne not to get in his way. Robles Depo. 161:6-7. Payne then said that he had Robles’s check there, but Robles then stated that everything was under protest, the situation was illegal, and that Campo put his life in danger by shooting the rifle. Id. at 161:8-14. Payne eventually said that he would look into the situation and that Robles was terminated, and Payne again tried to give Robles the pay check. See id. at 161:15-24. Robles said that he was going to go to the Sheriff to report Campo, and Payne replied it was Robles’s right to do so. See id. at 161:23-162:4. Robles replied that Payne was going to try and stop him, but Payne interrupted Robles and said that they were not going to stop him and again tried to give Robles his pay check. See id. at 162:5-8. Payne asked if Robles wanted the money, to which Robles responded by asking why they did not pay him right away. See id. at 162:9-11. Payne and Keenan replied that they were paying Robles, and Robles asked who was going to pay him the days he was not working. See id. at 162:12-15. Payne responded that if Robles would let him finish, he would explain to Robles that this was included as part of the check. See id. at 162:16-18. Robles asked to be shown a letter, but refused to open an envelope, and said that he was not getting anything. See id. at 162:19-22. Payne again asked if Robles wanted the pay check. See id. at 162:23-24. Robles responded that he was not getting anything, and for Payne to get out of his way. See id. at 162:25-163:1. Keegan instructed Payne (or vice versa) to unlock the doors (at some point the doors had been locked). See id. at 163:2, 487:5-15. Robles then told Payne, “don’t get in my way. You harassing me and I don’t — and— and back off, back off, back off.” Id. at 163:3-5. Payne said, “Hey, you need this letter.” Id. at 163:6. Robles responded, “don’t get close to me anymore. I don’t care. I’m protecting myself. You tried to stop me from get out from the door so fuck you.” Id. at 163:6-10. The recording then ended. See id. at 163:11.

Apparently after the recording stopped, Robles left the room. See PUMF 155. As Robles was walking in the lobby, Payne came in front of him. See PUMF 155. Robles raised his hands and told Payne to move back and not touch him; Payne moved out of the way. See id. As Robles was exiting the building, Payne blocked the exit by putting his back to the doors. See PUMF’s 156, 157. Payne later moved out of the way, and Robles left. See Robles Depo. 488:2-20.

At some point during the meeting in the conference room, Robles had slapped the check and paper work away from Payne, and Payne pushed Robles’s shoulders. See Payne Dec. ¶ 11; Robles Depo. 488:21-25. Also, it appears that after Payne pushed Robles, Payne repositioned himself in front of the door to prevent Robles from leaving. See . Robles Depo. 167:10-22.

During his employment ’at Agreserves, Robles heard Payne use the phrase “fucking Mexican” three to six times when referring to Robles. See PUMF 23. Once, Robles overheard Payne’s voice when Cervantes called Payne about a truck that Robles was driving and the speed at which Robles was doing a job. See Robles Depo. 455:15-459:5. Cervantes’s phone was connected to the speakers of a truck, so Robles could hear Payne. See id. Other times, when Robles or other would'make a mistake, Payne would say “stupid Mexicans.” See id. at 200:2-11.

After Campo’s behavior towards Robles, Robles was always biting his lip because he felt so much anxiety that he feared for his life. See DUMF 162. Robles felt that he Agreserves was a very stressful place to work. See id. After his termination, Robles felt more symptoms of anxiety and depression, and he wanted to be alone because he was remembering all the incidents that happened at Agreserves. See PUMF 163. Robles had nightmares, cried, felt stressed, pushed .his kids away, isolated himself, experienced panic attacks, had memory loss, could not relax quickly, and fought with his wife. See PUMF’s 164,165, 166. Robles believed his behavior was due to the illegal conduct and termination by Agreserves. See id. Robles was treated at a clinic for mental injuries that he believes were caused by Defendants’ conduct. See PUMF 167. Robles takes anti-depressants and medication to prevent anxiety attacks. See PUMF 168.

DEFENDANTS’ MOTIONS

I. PAYNE’S MOTION

A. 5th Cause of Action — Battery

Defendant’s Argument

Payne argues that Robles’s battery claim against him is based on conduct that occurred in the conference room during the April 1 termination meeting. Specifically, Payne allegedly pushed Robles. Payne argues that the battery claim is preempted by California’s Workers’ Compensation law because the minor interaction identified by Robles is a normal part of the employment relationship.

Plaintiff’s Opposition

Robles argues that the Labor Code permits an employee to bring a lawsuit if an employee’s injuries are caused by a willful assault. Physical aggression has consistently been exempted from the workers’ compensation exclusivity rule. Battery has no proper place in an employment relationship, so this claim is not preempted.

Legal Standard

California Labor Code § 3600(a) provides that, subject to- certain' exceptions, “workers’ compensation liability, ’in lieu of any other liability whatsoever’ will ■exist ’against an employer for any injury sustained by his or her employees arising out of and in the course of the employment.” Fermino v. Fedco, Inc., 7 Cal.4th 701, 708, 30 Cal.Rptr.2d 18, 872 P.2d 559 (1994) (citing Cal. Labor Code § 3600(a)); Jones v. Department of Corrections & Rehab., 152 Cal.App.4th 1367, 1383, 62 Cal.Rptr.3d 200 (2007). Conduct is within the scope of employment if the injury is an outgrowth of the employment, the risk of injury is inherent in the workplace, or the injury is typical of or broadly incidental to the employer’s enterprise. Torres v. Park-house Tire Serv., Inc., 26 Cal.4th 995, 1008, 111 Cal.Rptr.2d 564, 30 P.3d 57 (2001); Jones, 152 Cal.App.4th at 1384, 62 Cal.Rptr.3d 200. “In bringing [people] together, work brings [personal] qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flare-up .... These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment.” Torres, 26 Cal.4th at 1009, 111 Cal.Rptr.2d 564, 30 P.3d 57; Jones, 152 Cal.App.4th at 1384, 62 Cal.Rptr.3d 200. However, the workers’ compensation laws will not prevent an employee from bringing a suit against a fellow employee for damages where “the employee’s injury ... is proximately caused by a willful and unprovoked physical act of aggression of the other employee.” Cal. Lab. Code § 3601(a)(1); see Torres, 26 Cal.4th at 1002, 111 Cal.Rptr.2d 564, 30 P.3d 57. To fit within this exception, as a general rule the co-employee’s physical act of aggression must be accompanied by an intent to injure. Torres, 26 Cal.4th at 1006, 111 Cal. Rptr.2d 564, 30 P.3d 57; Jones, 152 Cal.App.4th at 1383, 62 Cal.Rptr.3d 200.

Discussion

The conduct at issue appears to be a single push or shove by Payne to Robles’s shoulders, while Payne was trying to terminate Robles. There is no description of the push/shove by Robles in his opposition, and Robles’s deposition is not particularly descriptive. Based on the evidence presented, the Court can only conclude that the push from Payne is a relatively minor “flare up” that is an inherent risk of the workplace. See Torres, 26 Cal.4th at 1009, 111 Cal.Rptr.2d 564, 30 P.3d 57; Jones, 152 Cal.App.4th at 1384, 62 Cal.Rptr.3d 200 (finding assault and battery claims based on one worker grabbing another by the arm and “banging her around” due to a dispute over use of a wheelbarrow were preempted by workers’ compensation). No intent to injure by Payne is apparent. Cf. Cal. Lab. Code § 3601(a)(1). Thus, the battery claim against Payne is preempted by § 3600(a). See Jones, 152 Cal.App.4th at 1384, 62 Cal.Rptr.3d 200.

In opposition, Robles cites Labor Code § 3602(b). In relevant part, that law provides an exception to the workers’ compensation exclusivity rule for certain lawsuits. An employee may sue his employer where “the employee’s injury ... is proximately caused by a willful physical assault by the employer.” Cal. Lab. Code § 3602(b)(1). Robles reliance on § 3602(b)(1) is misplaced. By its express terms, § 3602(b)(1) only applies when the claim is one by an employee against the employer. See Cal. Labor Code § 3602(b)(1). Liability under § 3602(b)(1) “must be based on positive misconduct by the employer and not on a theory of vicarious liability such as that which forms the basis of the doctrine of respondeat superi- or.” Fretland v. County of Humboldt, 69 Cal.App.4th 1478, 1487, 82 Cal.Rptr.2d 359 (1999) (emphasis added). Here, because Robles was employed by Agreserves, not Payne, see DUMF 4, § 3602(b)(1) does not apply.

To the extent that Robles meant to cite § 3602(a)(1) (which permits suits against a fellow employee for willful aggression), for conduct to fit under § 3602(a)(1), the intent to injure the plaintiff is generally required. See Torres, 26 Cal.4th at 1006, 111 Cal.Rptr.2d 564, 30 P.3d 57; Jones, 152 Cal.App.4th at 1383, 62 Cal.Rptr.3d 200; cf. Soares v. City of Oakland, 9 Cal.App.4th 1822, 1828, 12 Cal.Rptr.2d 405 (1992) (intent to injure required to fit with exclusivity exception of § 3602(b)(1)). As discussed above, the minimal evidence presented on this point does, not support an inference that Payne intended to injure Robles by merely pushing him. Therefore, § 3602(a)(1) does not apply! See id.

Summary judgment on this claim is appropriate.

B. 15th Cause of Action — False Imprisonment

Defendant’s Argument

Payne argues that the elements of false imprisonment cannot be met. First, the conference room door locked from the inside in order to keep people on the outside from entering, so people on the inside could not be locked in. Robles was also told that he could leave the conference room, and he did. The recording contradicts any arguable false imprisonment. Second, there was a lawful privilege for asking Robles into a closed door meeting because he was being terminated. Informing an employee of a termination is a normal part of the employment relationship. Third, there is no evidence that the “confinement” was non-consensual. Robles surely did not want to be there because he was being terminated, but there is over 3 minutes of audio-recording where everyone is talking about Robles’s paycheck and termination. Robles voluntarily entered the room to talk to Payne and Keenan. Fourth, there was no appreciable length of time that Robles was falsely imprisoned. Any imprisonment lasted less than 5 minutes, and the audio recording was about 3 minutes. At best, Robles’s desire to not be in the room where he was being terminated was a fleeting emotion.

Plaintiffs Opposition

Robles argues that PUMF’s 145 to 158 demonstrate that Payne falsely imprisoned him during the April 1 termination meeting in the conference room. These PUMF’s in part indicate that Robles felt that he could not get out.of the room, he told Payne and Keegan that they prevented him from getting out of the door, he tried to exit the room twice, the door was locked, and Payne had physically blocked the door. Robles argues that the factual contentions in PUMF’s 145 to 158 create questions of fact that must be resolved by the jury.

Legal Standards

The elements of a claim for false imprisonment are: “(1) the noncon-sensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.” Young v. County of Los Angeles, 655 F.3d 1156, 1169 (9th Cir.2011); Shoyoye v. County of Los Angeles, 203 Cal.App.4th 947, 962, 137 Cal.Rptr.3d 839 (2012); see also Fermino v. Fedco, Inc., 7 Cal.4th 701, 715, 30 Cal.Rptr.2d 18, 872 P.2d 559 (1994). Restraint or confinement “may be effectuated by means of physical force, threat of force or of arrest, confinement by physical barriers, or by means of any other .form of unreasonable duress.” Fermino, 7 Cal.4th at 715, 30 Cal.Rptr.2d 18, 872 P.2d 559 (citations omitted); Scofield v. Critical Air Medicine, Inc., 45 Cal.App.4th 990, 1001, 52 Cal.Rptr.2d 915 (1996). “The only mental state required to be shown to prove false imprisonment is the intent to confine, or to create a similar intrusion.” Fermino, 7 Cal.4th at 716, 30 Cal.Rptr.2d 18, 872 P.2d 559.

Discussion

Payne makes five arguments in favor of summary judgment on this claim. However, the Court is not convinced that summary judgment is justified on the basis of any of these arguments.

First, there appears to.be no dispute that the conference room door locked from the inside. Nevertheless, Robles testified that at some point during the conversation (apparently just after he requested a “paper”), Payne stood up, blocked the door, and prevented Robles from leaving the room. See Robles Depo. 167:10-22. At other points during the meeting, Payne was standing near his chair, which was near the door. See PUMF 147. Thus, confinement was being accomplished through Payne’s physical actions, not through the lock per se.

Second, the Court concedés that there is nothing unlawful about requiring an employee to attend a closed door meeting, especially if there is something sensitive occurring like a termination. Nevertheless, the apparent confinement occurs right around the time that Robles understands that he is being terminated. Cf. Robles Depo. 167:10-22 with Robles Depo. 160:14-161:22. It is clear that Payne wanted to give Robles final paperwork and a paycheck, but Robles was not willing to accept these after the termination. With the termination/Robles was no longer an employee, and thus, would not be required to follow any of Agreserves administrative processes. Payne cites no authority that would allow him to block Robles frond leaving the room. Without citation to authority that recognizes such a privilege, the Court cannot accept Payne’s argument.

Third, the recording is of limited value. The recording is audio only, and does not reflect body language or body positioning. It is clearly possible to falsely imprison someone without saying a word. The portion of Robles’s deposition that states that Payne stood in front of the door and blocked Robles from leaving would not necessarily be reflected in the recording. Further, the recording has not been produced, so the Court cannot hear the tone of voice being used by Robles, Payne, or Keenan, nor can the Court hear background noises that may be relevant. Finally, the Court agrees that one reasonable interpretation of the recording is that Robles and Payne are spending a lot of time talking about either Campo or paperwork, and only a small part talking about Robles leaving. This would tend to indicate consent for most of the conversation and an inappreciable period of confinement. However, Robles at several points in the recording makes reference to being locked in, not being allowed to leave, and Payne being in his way. When combined with Robles’s deposition, the recording can also be interpreted as 'reflecting a non-consensual, appreciable confinement. Because the recording can reasonably be interpreted in several ways, including one that is favorable to Robles, the recording does not dictate granting summary judgment. See Fresno Motors, 771 F.3d at 1125; Holly D., 339 F.3d at 1175.

Fourth, there does not appear to be any case law that sets a floor as to what constitutes an appreciable period of time. In Fermino, the California Supreme Court cited a case with approval that a period a? short as 15 minutes was sufficient. See Fermino, 7 Cal.4th at 715, 30 Cal.Rptr.2d 18, 872 P.2d 559 (citing Alterauge v. Los Angeles Turf Club, 46 Cal.3d 1092, 1123 (1988)). However, at least one California Court of Appeals has held that Fermino’s observation about 15 minutes was not meant to set a floor. See People v. Callier, 2010 WL 550700, *3-*4, 2010Cal. App. Unpub. LEXIS 1100, *10-*12 (Feb. 18, 2010). Callier also noted some cases that had found actionable false imprisonment in which the time frame involved appeared significantly less than 15 minutes. See id. (citing People v. Fosselman, 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144, 1146 (1983) (defendant put a knife to a woman’s back and his hand on her shoulder, began to walk her behind a building, but the woman fell and ran into the street where passers-by helped her); People v. Straight, 230 Cal.App.3d 1372, 282 Cal.Rptr. 10 (1991) (woman was held and groped in intimate areas of her body by defendant, but as defendant' tried to take two steps with the woman, the woman was able to scream and the defendant left)). Here, based on the recording, it appears that any non-consensual confinement lasted between 2 and 3 minutes. This is not a particularly long period of time, but the requirement is that there be an appreciable period of time, however brief or short. Young, 655 F.3d at 1169; Fermino, 7 Cal.4th at 715, 30 Cal.Rptr.2d 18, 872 P.2d 559; Shoyoye, 203 Cal.App.4th at 962, 137 Cal.Rptr.3d 839. Further, the 2 to 3 min-' utes is accompanied by several comments by Robles about being locked in or wanting to leave and Payne physically blocking the exit. The Court finds that reasonable minds could differ on this issue. As such, a jury will have to determine whether Robles was confined for an “appreciable period of time.” See Fresno Motors, 771 F.3d at 1125; Holly D., 339 F.3d at 1175.

Summary judgment on this claim will be denied.

C. 16th Cause of Action — Intentional Infliction of Emotional Distress (“IIED”)

Defendant’s Argument

Payne argues inter alia that there is a failure to meet the required elements of an IIED claim. The evidence does no show that his conduct was sufficiently “outrageous.” Robles’s claim is based on a meeting that lasted less than 5 minutes, and in which Payne and Robles were discussing the termination and paperwork. Furthermore, there is a failure of intent because Payne did not intend to cause Robles severe emotional distress.

Plaintiff’s Opposition

Robles argues that Payne’s conduct was an abuse of his position over Robles and was a violation of the law against false imprisonment. Payne’s conduct caused emotional distress and caused Robles to fear for his safety. A reasonable trier of fact could look at the evidence .and conclude that Payne’s conduct was sufficiently outrageous.

Legal Standards

The elements of the tort of IIED are: (1) extreme and outrageous conduct by the defendant; (2) the defendant’s intention of causing, or reckless disregard of the probability of causing, emotional distress; (3) the plaintiffs suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Hughes v. Pair, 46 Cal.4th 1035, 1050, 95 Cal.Rptr.3d 636, 209 P.3d 963 (2009); Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1001, 25 Cal. Rptr.2d 550, 863 P.2d 795 (1993). “ ’Severe emotional distress’ means. emotional distress of such substantial quality or enduring quality that no reasonable person in a civilized society should be expected to endure it.” Hughes, 46 Cal.4th at 1051, 95 Cal.Rptr.3d 636, 209 P.3d 963; Potter, 6 Cal.4th at 1004, 25 Cal.Rptr.2d 550, 863 P.2d 795. Conduct is “extreme and outrageous” when it is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Hughes, 46 Cal.4th at 1050, 95 Cal.Rptr.3d 636, 209 P.3d 963; Potter, 6 Cal.4th at 1001, 25 Cal.Rptr.2d 550, 863 P.2d 795. Evidence that reflects “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” is insufficient. Hughes, 46 Cal.4th at 1051, 95 Cal.Rptr.3d 636, 209 P.3d 963.

Discussion

After reviewing the evidence, two elements of IIED have not been met. First, there is insufficient evidence of “extreme and outrageous” behavior. Robles’s claim is based on the events at the termination meeting, and in particular his contention that he was falsely imprisoned. However, the meeting lasted 5 minutes, and of those 5 minutes, the last 3 appear to have been recorded. The 3 minutes of recording reflect an agitated Robles who did not want to be terminated, who wanted some kind of paper work related to the termination, and who wanted to complain about how he had been treated up to that point by Agreserves employees. See Robles Depo. 159:13-163:10. There is no evidence that Payne said anything insulting or threatening during the meeting. The recording reflects that Robles requested to leave, and was told that he could do so. However, shortly after saying he wanted to leave, Robles continued to talk and Payne continued to attempt to give Robles paperwork. At most, Payne was blocking the door for between 2 and 3 minutes during a conversation that was dominated by Robles. This is not “extreme and outrageous” conduct by Payne that exceeds all bounds tolerated in a civilized society. See Hughes, 46 Cal.4th at 1050, 95 Cal.Rptr.3d 636, 209 P.3d 963. Second, there is no evidence that suggests Payne intended to cause severe emotional distress. Payne has declared that he had no such intent, see Payne Dec. ¶ 12, and the conduct at issue is not the type that could reasonably be expected to cause severe emotional distress. Without intent and outrageous conduct, Robles cannot recover for IIED. See Hughes, 46 Cal.4th at 1050, 95 Cal.Rptr.3d 636, 209 P.3d 963.

Robles relies on Robinson v. Hewlett-Packard Corp., 183 Cal.App.3d 1108, 1130, 228 Cal.Rptr. 591 (1986) in support of his arguments.. Robinson involved the use of racial comments. See id. at 1128, 228 Cal. Rptr. 591. In addressing an IIED claim, Robinson cited Agarwal v. Johnson, 25 Cal.3d 932, 946, 160 Cal.Rptr. 141, 603 P.2d 58 (1979) for the proposition that behavior may be considered “outrageous” for purposes of IIED if a defendant: (1) abuses a relation or position which give him power to damage the plaintiffs interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally with the recognition that the acts are likely to result in illness through mental distress. Agarwal, 25 Cal.3d at 1130, 160 Cal.Rptr. 141, 603 P.2d 58; see also Fermino, 7 Cal.4th at 713, 30 Cal.Rptr.2d 18, 872 P.2d 559.

Here, there has been no showing that Agarwal’s criteria have been met. First, Payne’s conduct in temporarily blocking the door did not harm Robles’s interests, appears to have occurred after Payne lost his position of authority over Robles, and was not particularly abusive in light of the purpose of the meeting and the nature of what was actually said (as discussed above). Second, there is no evidence that Payne knew that blocking the door would likely cause illness through mental distress. Third, there is no evidence that Payne knew Robles was particularly susceptible to mental distress. In short, Robles has done little more than cite Ro bin-son without applying it. Robles has not shown that Robinson or Agarwal apply in this case.

Summary judgment in favor of Payne on this claim is appropriate.

II. CAMPO’s MOTION

A. 1st & 2nd Causes of Action — Title VII — National Origin and Religion Harassment, Discrimination, & Retaliation

Parties ’ Arguments

Campo argues that, because he is an individual, he cannot be held liable under Title VII for any harassment, discrimination, or retaliation. Robles does not respond to this argument.

Discussion

Campo is correct. The Ninth Circuit has clearly held that individual supervisors and coworkers cannot be liable under -Title VII. See Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir.2006); Holly D., 339 F.3d at 1179; Miller v. Maxwell’s Int'l, Inc., 991 F.2d 583, 587-88 (9th Cir.1991). Accordingly, summary judgment in favor of Campo on the first and second causes of action is appropriate. See id.

B. 3rd Cause of Action — FEHA & California Constitution — National Origin Harassment

Defendant’s Argument

Campo argues that he did not use the term “stupid” Mexican, and the “rifle incident” had nothing to do with Robles’s national origin. At best, the incidents identified by Robles were sporadic and were not severe or pervasive. Furthermore, Art. I, § 8 of the California Constitution does not support isolated claims for harassment because harassment by itself does not disqualify a person from entering or pursuing employment.

Plaintiff’s Opposition

Robles argues that he was subject to severe and pervasive national origin harassment. From the beginning to the end of February 2013, Campo called Robles a “stupid Mexican” almost every day and said that he was “above all Mexicans” almost every day. Also, Campo fired his rifle in the direction of Robles and other Mexican workers. Robles complained to Cervantes and Barnum about Campo saying “stupid Mexican,” but nothing was done. The daily statements by Campo create a triable issue of fact regarding national origin harassment.

Discussion

1. California Constitution Art. I, § 8

A direct claim under Art. I, § 8 “may only be brought where a plaintiff has been denied entrance into a profession or particular employment or terminated from the same.” Strother v. Southern Cal. Permanente Med. Grp., 79 F.3d 859, 871 (9th Cir.1996); Coleman v. Southern Wine & Spirits of Cal., Inc., 2011 WL 5520983, *4, 2011 U.S. Dist. LEXIS 131173, *10 (N.D.Cal. Nov. 14, 2011); Madison v. Motion Picture Set Painters & Sign Writers Local 729, 132 F.Supp.2d 1244, 1255 (C.D.Cal.2000). Art. I, § 8 governs actions which “result in the complete exclusion of an individual from employment with a particular employer, and does not reach conduct affecting particular aspects of an individual’s job.” Strother, 79 F.3d at 872. Here, Campo did not terminate Robles or deny him employment, nor did Campo have that authority. Therefore, there is no viable Art. I, § 8 claim against Campo. Summary judgment is appropriate. See Strother, 79 F.3d at 871-72; Coleman, 2011 WL 5520983 at *4, 2011 U.S. Dist. LEXIS 131173 at *10.

2. FEHA

Robles’s national origin harassment claim is based on three actions by Cam-po — almost daily calling Robles a “stupid Mexican,” almost daily saying that he was “above all Mexicans,” and the “rifle incident.”

As to the rifle incident, the Court has addressed this matter in depth under the assault cause of action, infra. In short, the evidence shows that Campo was shooting at coyotes, not at Robles or other Mexican workers, and Robles has provided no evidence that he saw Campo shooting in his direction or that undermines the assertion that Campo was shooting at coyotes only. See Campo Dec. ¶5; Robles Depo. 115:1-20, The evidence does not indicate that the “rifle incident” had anything to do with Robles’s national origin. Thus, it does not support a harassment claim.

With respeet to being called a “stupid Mexican” on an almost daily basis, this assertion is based on Robles’s declaration. Robles expressly declared that “Cam-po said to me ’stupid Mexican’ almost every day.” Robles Dec. ¶ 7. However, at Robles’s deposition, Robles testified in relevant part:

Q: When did you hear Jay Payne use the words “stupid Mexican”?

A: When we’re working in the spray and I make a mistake or they do something wrong the first thing they say, “this stupid Mexican,” or things like that.

Q: You used the word “they.” Is there more than one person that said this? Because you only identified Jay Payne.

A: Jay, Jay and all of them, including Lee, they have that habit of mistreating people and telling them “stupid Mexican.”

Q: So your testimony is Jay Payne and Lee had the custom of calling employees “stupid Mexicans,” is that what you’re saying?

A: They have that habit of saying that word. They mistreat you, and that’s why I feel discriminated against and offended besides.

Q: My question was — I’m sorry, the words “stupid Mexican,” you know, when was it said and who said it. Right now you said Jay Payne said and Lee said, right?

A: Yes.

Q: Anybody else say that?

A: That I’ve heard it’s just them.

Robles Depo. 200:1-201:1 (emphasis added).

“The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir.2012); Van Asdale v. International Game Tech., 577 F.3d 989, 998 (9th Cir.2009). “In order to trigger the sham affidavit rule, the district court must make a factual determination that the contradiction is a sham, and the inconsistency between a party’s deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit.” Yeager, 693 F.3d at 1080; see Van Asdale, 577 F.3d at 998-99. “The non-moving party is not precluded from elaborating upon, explaining, or clarifying prior testimony elicited by opposing counsel on deposition and minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit,” Yeager, 693 F.3d at 1081; Van Asdale, 577 F.3d at 999.

Here, the deposition passage dearly indicates that Payne and “Lee” were the only people that Robles heard use the term “stupid Mexican.” Despite an express question that sought the identity of every individual who used the term “stupid Mexican,” Robles did not identify Campo, let alone respond that he heard Campo use the term against him on an almost daily basis. Now declaring that Campo used the term “stupid Mexican” on a daily basis contradicts Robles’s deposition testimony. Robles did hot respond to Defendants’ objection that Paragraph 7 of' his declaration improperly contradicted the relevant deposition testimony. Given the state of the evidence and absence of a response, the Court can only conclude that Paragraph 7 of Robles’s declaration is a sham. As such, the Court strikes Paragraph 7 of Robles’s declaration. See Yeager, 693 F.3d at 1080; Van Asdale, 577 F.3d at 998-99. Without Paragraph 7, Robles identifies no basis for concluding that Campo said “stupid Mexican” almost daily.

With respect to Campo saying almost daily that he was “above all Mexicans,” this is based on Paragraph 8 of Robles’s declaration. Defendants object in part that the declaration is misleading in light of the allegations in the Complaint and verified interrogatory responses. Interrogatory No. 8 asked for the identity of each person who harassed Robles and for a detailed description of the harassment suffered. See Doc. No. 54-2. Robles responded to the interrogatory by essentially copying the allegations in Paragraphs 9 and 10 of his complaint, which deal with national origin and religion harassment respectively. See Complaint ¶¶ 9, 10; Doc. No. 54-3. Robles’s interrogatory response with respect’to national origin contains'no assertion that Campo said he was “above all Mexicans.” See Doc. No. 54-3.

The “sham declaration” rule applies to declarations that contradict not only prior deposition testimony,' but also prior sworn interrogatory responses. See School Dist. No. 1 J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir.1993); Reisner v. General Motors Corp., 671 F.2d 91, 93 (2d Cir.1982). There is no place in Robles’s interrogatory responses in which Robles identified Campo as stating expressly that he was “above all Mexicans.” To contend that Campo did say that he. was “above all Mexicans” is contrary to Robles’s verified interrogatory responses, given the interrogatory’s request for detailed information. Robles did not respond to Defendants’ objection. In the absence of a response, the Court concludes that Paragraph 8 of Robles’s declaration is a sham, and will strike it. See Yeager, 693 F.3d at 1080; School Dist. No. 1J, 5 F.3d at 1264; Reisner, 671 F.2d at 93. Without Paragraph 8, Robles identifies no basis for concluding that Campo said that he was “above all Mexicans” almost daily.

Alternatively, even if the Court considered Paragraph 8 of Robles declaration, it would not create a genuine disputed issue of material fact. It is true that Cam-po was a foreman over Robles, and as a foreman, Campo’s actions can be more im-pactful or harmful than those of a coworker. Cf. Roby, 47 Cal.4th at 706-07, 101 Cal.Rptr.3d 773, 219 P.3d 749 (noting that harassment by high-level management can be more damaging than harassment by a co-employee); Dee v. Vintage Petroleum, Inc., 106 Cal.App.4th 30, 36, 129 Cal.Rptr.2d 923 (2003) (noting that harassment from a supervisor can cause a different result than harassment from a non-supervisor). Nevertheless, Campo did not use racial slurs. Considering Campo’s position and that he is also a Mexican, see Campo Dec. ¶4, the words Campo used seem to be in the nature of bragging or puffing himself up in front of the other workers. While arrogant and offensive, Campo’s words are not particularly severe. Further, Campo worked with Robles for a relatively short period of time, three weeks in February 2013. Robles appears to have worked under Campo for approximately 15 days. See Doc. No. 45 at 8:11-13. Of those 15 days, Campo did not say that he was “above all Mexicans” daily (although it was almost daily). One comment by one person that occurred “almost daily” for a short period of time does not appear to be particularly pervasive. Considering the nature of Campo’s remarks and the time to which Robles would have been exposed, the evidence does not show that Campo’s conduct was sufficiently severe or pervasive such that it “would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee _” Aguilar v. Avis Rent A Car System, Inc., 21 Cal.4th 121, 130-31, 87 Cal.Rptr.2d 132, 980 P.2d 846 (1999); Serri v. Santa Clara University, 226 Cal.App.4th 830, 869-70, 172 Cal.Rptr.3d 732 (2014); see also Lyle v. Warner Brothers Television Prods., 38 Cal.4th 264, 282, 42 Cal.Rptr.3d 2, 132 P.3d 211 (2006).

In sum, because the evidence does not show sufficiently severe or pervasive harassing conduct because of national origin, summary judgment on this claim is appropriate.

C. 4th Cause of Action — FEHA & California Constitution — Religion Harassment

Defendant’s Argument

Campo argues that the religious harassment claim fails because his conduct was neither severe nor pervasive. Harassment cannot be occasional, sporadic or trivial. The religious comments identified by Robles are off-hand comments and isolated incidents of a generalized nature. The conduct at issue was at most merely offensive. A common sense view of the totality of the circumstances does not reveal actionable harassment.

Plaintiff’s Opposition

Robles argues that he was severely and pervasively harassed by Campo because of religion. Campo was a supervisor and would regularly make statements about the superiority of his religion and the inferiority of other religions. Campo would make four such statements on an almost daily basis over a period of about 15 days. Robles also argues that he was forced to participate- in a Mormon prayer three times, once in the shop and twice in the field. The prayers, combined with the 60 statements over a 15 day period, are sufficient to show severe or pervasive religion harassment.

Legal Standard

FEHA prohibits harassment of an employee. Cal. Gov’t Code § 12940(j). “[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” Roby v. McKesson Corp., 47 Cal.4th 686, 706, 101 Cal.Rptr.3d 773, 219 P.3d 749 (2009); Serri v. Santa Clara University, 226 Cal.App.4th 830, 869, 172 Cal.Rptr.3d 732 (2014). That is, “harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.” Roby, 47 Cal.4th at 707, 101 Cal.Rptr.3d. 773, 219 P.3d 749; Serri, 226 Cal.App.4th at 869, 172 Cal.Rptr.3d 732. Under FEHA, coworkers/employees are individually liable for their own harassing behavior. Cal. Gov. Code §§ 12940(j)(3); McClung v. Employment Development Dept., 34 Cal.4th 467, 471, 20 Cal.Rptr.3d 428, 99 P.3d 1015 (2004). A workplace may give rise to liability when it is permeated with discriminatory intimidation, ridicule, and insult that are sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Lyle v. Warner Brothers Television Prods., 38 Cal.4th 264, 279, 42 Cal.Rptr.3d 2, 132 P.3d 211 (2006); Mokler v. County of Orange, 157 Cal.App.4th 121, 145, 68 Cal. Rptr.3d 568 (2007). However, FEHA is not a “civility code,” and it does not outlaw course or vulgar conduct that merely offends. Lyle, 38 Cal.4th at 291, 42 Cal. Rptr.3d 2, 132 P.3d 211; Mokler, 157 Cal.App.4th at 144, 68 Cal.Rptr.3d 568. To establish a claim for FEHA 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 or pervasive that it created a hostile work environment. See Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir.2013). Unless harassing conduct is “severe in the extreme,” there is “no recovery for harassment that is occasional, isolated, sporadic, or trivial.” Hughes v. Pair, 46 Cal.4th 1035, 1043, 95 Cal.Rptr.3d 636, 209 P.3d 963 (2009); Lyle, 38 Cal.4th at 283, 42 Cal.Rptr.3d 2, 132 P.3d 211. Otherwise, there must be a “concerted pattern of harassment of a repeated, routine or a generalized nature.” Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal.4th 121, 130-31, 87 Cal.Rptr.2d 132, 980 P.2d 846 (1999); Further, to be actionable, an “objectionable environment must be both objectively and subjectively offensive.” Hughes, 46 Cal.4th at 1044, 95 Cal.Rptr.3d 636, 209 P.3d 963. “The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that [he or she] was actually offended'.” Serri v. Santa Clara University, 226 Cal.App.4th 830, 870, 172 Cal.Rptr.3d 732 (2014); Rehmani v. Superior Court, 204 Cal.App.4th 945, 951-52 , 139 Cal.Rptr.3d 464(2012). Whether a “hostile work environment” exists can be determined by examining 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 an, employee’s work