Smith v. BP Lubricants USA, Inc., 64 Cal. App. 5th 138 (2021)

Robert Smith’s employer, Jiffy Lube, held a presentation for its employees to learn about a new Castrol product.  Castrol employee Gus Pumarol made several comments during the presentation that Smith considered to be racist and offensive.  Smith sued Castrol (a dba of BP) and Pumarol for racial harassment under the Fair Employment and Housing Act and discrimination under the Unruh Act; Smith also sued Pumarol for intentional infliction of emotional distress (“IIED”).  The trial court sustained BP and Pumarol’s demurrer without leave to amend.

The Court of Appeal reversed the dismissal of the IIED and Unruh Act claims, but affirmed dismissal of the FEHA claim on the ground that there were no allegations that BP and Pumarol had aided and abetted Smith’s employer (Jiffy Lube) in harassing him.  As for the other claims, the Court held that a reasonable jury could find that Pumarol’s comments were sufficiently extreme and outrageous to have resulted in an infliction of emotional distress upon Smith.  The Court reversed dismissal of the Unruh Act claim on the ground that a business establishment (Castrol) could face liability under the Act for its racially harassing conduct directed toward a customer.  See also Moreno v. Bassi, 65 Cal. App. 5th 244 (2021) (plaintiff who lost all FEHA claims and prevailed on a minimum wage claim in the amount of $16 was entitled to reasonable attorney’s fees pursuant to Cal. Lab. Code § 1194 rather than Cal. Code Civ. Proc. § 1031; cost recovery is limited to costs unrelated to the unsuccessful FEHA claims).

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020;, co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.