Labor & Employment Law Daily Wrap Up, DISCHARGE—E.D. Cal.: Employee barred from Macy’s property for sharing video of robbery not engaged in protected activity, (Jul 21, 2025)

By Ronald Miller, J.D.

The employee’s conduct in sending the video of the robbery to a Macy’s manager and a friend was not covered by Section 1102.5(b) because it did not involve unlawful activity taken by third parties acting on behalf of either the employer or Macy’s.

An employer was granted its motion for summary judgment against the wrongful termination claim of an employee after she was barred from Macy’s property for sharing a video of a robbery at a Macy’s store, ruled a federal district court in California. The employee worked as cosmetic artist and was assigned to the Macy’s store. She recorded the robbery and shared it with a friend. The video was posted to social media. The court agreed with the employer that the employe never alleged that she was a member of a protected class; she did not proffer any evidence to suggest that the individuals who committed the robbery were employees of either the employer or Macy’s such that her conduct was protected by Labor Code Section 1102.5; she offered no evidence that she suffered severe or extreme emotional distress support an IIED claim; and her conduct did not implicate a public policy as a motivating factor in her termination (Arauz v. M.A.C. Cosmetics, Inc., No. 2:22-cv-01663-DC-CSK (E.D. Cal. July 17, 2025)).

The employer, M.A.C. Cosmetics, is a cosmetics manufacturer that sells its products online, in independent stores, and in third-party department stores, like Macy’s and Dillard’s. The employer hired the employee on February 16, 2015, as a “Freelance On-Call Artist.” In May or June of 2016, employee applied to transfer to a “Permanent Artist” position at the MAC counter in the Macy’s department store located in Stockton, California. The transfer was granted.

Store robbery. On August 1, 2021, a robbery occurred at the Macy’s department store in which the employee worked. She discreetly recorded a video of the incident on her phone. After the employee returned to her counter, she approached a Macy’s manager and said, “I have a video of the robbery. Do you mind if I send it to you so you can provide this to the Stockton police?” The Macy’s manager agreed.

Video shared. That same day, the employee texted a friend who worked in the Dillard’s across the street and shared the video with her. Approximately 30 minutes after the employee sent the video to her friend, the manager and an asset protection officer approached the employee and asked her if she sent the video to anyone else. She acknowledged that she had. The employee was informed that she needed to contact her friend to delete the video, because it was already being shared and that her employment would be in jeopardy if it was not deleted.

The friend was able to get the video taken down, but it had already been sent to at least one other person and had been posted to Instagram, a social media platform.

Thereafter, the Macy’s manager informed the employee she was going to be suspended because she violated a Macy’s employment policy. She was escorted outside to her car. The employee let her manager at MAC know that she had been suspended. Thereafter, Macy’s banned the employee from working at Macy’s.

Following the ban, the employee returned to her role as a freelancer. Approximately two months later, in October 2021, she was hired by a different department store.

On August 15, 2022, the employee filed a complaint against the employer in state court alleging four causes of action: (1) harassment in violation of FEHA, California Government Code § 12940 et. seq.; (2) retaliation in violation of California Labor Code § 1102.5; (3) intentional infliction of emotional distress; and (4) wrongful termination in violation of public policy. The action was removed to federal court.

On February 16, 2024, the employer filed a motion for summary judgment on the employee’s four claims.

Harassment claim. To establish a prima facie case of harassment and hostile work environment under FEHA, a plaintiff must demonstrate that: (1) the plaintiff is a member of a protected class; (2) the plaintiff was subject to unwelcome harassment; (3) the harassment was based on the plaintiff’s membership in a protected class; (4) the harassment unreasonably interfered with the plaintiff’s work performance by creating an intimidating, hostile, or offensive work environment; and (5) the defendant is liable for the harassment.

The employer argued that the employee could not satisfy the first and third elements of that claim because she had no evidence that the alleged harassment she experienced was tied to any protected characteristic.

The court agreed with the employer that it met its burden on summary judgment of showing that there was an absence of evidence to support the employee’s FEHA harassment claim. Specifically, the employee never alleged that she was a member of a protected class. Further, she did not produce any evidence to show that the alleged harassment she experienced was because of her membership in a protected class. Accordingly, the court granted the employer’s motion for summary judgment as to her FEHA harassment claim.

Retaliation. To prevail on a claim for whistleblower retaliation in violation of Section 1102.5(b) of the California Labor Code, a plaintiff must establish by a preponderance of the evidence “that retaliation for an employee’s protected activities was a contributing factor in a contested employment action.”

The employer moved for summary judgment in its favor on the employee’s retaliation claim on the grounds that she failed to state a prima facie case, specifically because she did not engage in a protected activity and could not show causation.

In sending the video of the robbery to the Macy’s manager, the employee disclosed an activity that was in “violation of state or federal statute.” However, while the protections of Section 1102.5 extend to disclosures of unlawful activity by third parties, “those protections only extend to third parties such as ‘contractors and employees’ acting on behalf of the employer.” The employee did not assert nor proffer any evidence to suggest that the individuals who committed the robbery were employees of either the employer or Macy’s. Further, the employee cited to no authority to support her assertion that a disclosure of an unlawful activity by an outside third party constitutes a protected activity under Section 1102.5.

Because the employee failed to show she engaged in a protected activity, she failed to establish a prima facie case of retaliation in violation of Section 1102.5(b).

Intentional infliction of emotional distress. Under California law, the elements of an intentional infliction of emotional distress (IIED) claim 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 plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s conduct.”

Here, the court determined that the employer was correct that the employee had not alleged or proffered any evidence that anyone employed by it ever mistreated her or engaged in any extreme and outrageous conduct. The employee also failed to proffer evidence sufficient to support a triable issue of fact that she suffered severe or extreme emotional distress. Therefore, the employee did not raise a genuine issue of material fact. Accordingly, the court granted the employer’s motion for summary judgment as to her IIED claim.

Wrongful termination. To prevail on a claim for wrongful discharge, a plaintiff must demonstrate that: (1) an employer-employee relationship existed; (2) the plaintiff’s employment was terminated; (3) the violation of public policy was a motivating factor for the termination; and (4) the termination was the cause of the plaintiff’s damages.

The employer removed the employee from its payroll only after she did not take a single freelance job for a year, and her conduct of sending the video of the robbery to her friend did not implicate a public policy. Here, because the employer was entitled to summary judgment as to the employee’s FEHA harassment claim and Section 1102.5(b) retaliation claim, her derivative wrongful termination claim also failed.

The case is No. 2:22-cv-01663-DC-CSK.

Judge: Coggins, D.

Attorneys: Jerome Anthony Clay, Jr. (The Law Office of Jerome A. Clay) for Yilenia Arauz. Claire M. Lesikar (Morgan, Lewis & Bockius) for M.A.C. Cosmetics, Inc.

Companies: M.A.C. Cosmetics, Inc.

Cases: Discharge Discrimination Whistleblowers Retaliation StateLawClaims CaliforniaNews