Argument for Denial of Summary Judgement in a Retaliation Case

February 4, 2017

When filing a motion for summary judgement, the moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must “show” that either one or more elements of the cause(s) of action cannot be established or there is a complete defense to that cause of action. (C.C.P. § 437c.)

The plaintiff’s prima facie burden in a retaliation case is to (1) show he or she engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link exists between the protected activity and the employer’s action. (McRae v. Dept. of Corr. & Rehab. (2006) 142 Cal. App. 4th 377, 386). Once the plaintiff has established a prima facie case of retaliation, the defendant must provide a legitimate, nonretaliatory explanation. The burden then shifts back to the plaintiff to show this explanation is merely a pretext for the retaliation. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68–9.)

An employer is prohibited from retaliating against a complainant who made “a bona fide oral or written complaint to his employer of unsafe working conditions, or work practices, in his employment or place of employment.” (Labor Code § 6310(b).) In order to be protected against discharge, a complainant need only make a good faith complaint about working conditions that he believes to be unsafe. (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 109; Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299.)

It is true that a plaintiff must oppose his employer’s safety practices, rather than simply discuss them in order to state a claim under Labor Code § 6310. (Luchetti v. Hershey Co. (9th Cir. 2011) 412 Fed.Appx. 978). In a two paragraph unpublished opinion, the Ninth Circuit found that “[t]he evidence shows only that Luchetti discussed how to best address safety practices at the plant with his supervisors and co-worker” and dismissed Luchetti’s claim as a result. (Ibid.)

In Mueller v. Automobile Club of So. (1998) 61 Cal.App.4th 431, the plaintiff suffered from an anxiety disorder, made irrational complaints that her workplace was unsafe, and alleged that she was terminated after making such complaints. (Mueller, supra, 61 Cal.App.4th at 451-452.) The plaintiff never alleged she was terminated because she made such complaints. (Ibid.)

A plaintiff must show a causal link between the employee’s protected activity and the employer’s adverse action. (Morgan, supra,88 Cal.App.4th at 69.) The causal link may be established by an inference derived from circumstantial evidence such as (i) the employer’s knowledge that the employee engaged in protected activities; (ii) the proximity in time between the protected action and allegedly retaliatory employment decision; or (iii) a pattern of conduct consistent with a retaliatory intent (e.g., hostile treatment, exclusion from meetings). (Ibid; Wysinger v. Automobile Club of Southern Calif. (2007) 157 Cal.App.4th 413, 421.)

 “(I)f a subordinate, in response to a plaintiff’s protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process.” (Poland v. Chertoff (9th Cir. 2007) 494 F.3d 1174, 1182; Staub v. Proctor Hosp. (2011) 562 U.S. 411, 422; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 100.)

The facts may be analogous to those in Poland, wherein the Ninth Circuit agreed with the district court that the subordinate’s animus and his role in defining the scope of the inquiry and in leading the inquiry panel to evidence unfavorable to plaintiff unlawfully tainted the decision to transfer plaintiff. (Poland, supra, 494 F.3d at 1184.) Because the subordinate framed and influenced the inquiry panel’s investigation, the decision was not independent. (Ibid.)

When adverse employment decisions are taken within a reasonable period of time after complaints have been made, retaliatory intent may be inferred. (Passantino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000) 212 F.3d 493, 507.)

Pretext may be proven through comparative evidence that the employer treated similarly situated persons in similar circumstances more favorably than it treated plaintiff. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 804.) Where the employer claims it fired plaintiff for violation of work rules, plaintiff may prove pretext by submitting evidence that either (i) she did not violate the cited work rule, or (ii) if she did violate the rule, other employees outside the protected class, who engaged in similar acts, were not similarly treated. (Ibid; Damon v. Fleming Supermarkets of Florida, Inc. (11th Cir. 1999) 196 F.3d 1354, 1363.)

The critical factor for comparative evidence is that the compared employees must be similarly situated in all respects to plaintiff. (Hawn v. Executive Jet Mgmt., Inc. (9th Cir. 2010) 615 F.3d 1151, 1160.)

California recognizes a tort claim for wrongful discharge in violation of public policy. (Tameny v. Atl. Richfield Co. (1980) 27 Cal.3d 167, 172). Wrongful termination cases involving a Tameny cause of action are limited to “those claims finding support in an important public policy based on a statutory or constitutional provision.” (Green v. Ralee Eng. Co. (1988) 19 Cal.4th 66, 79). Firing an employee for protesting unsafe working conditions violates fundamental public policy favoring workplace safety, therefore, the discharged worker may sue for wrongful discharge (in addition to statutory remedies). (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 947).

First, courts have recognized that a Tameny claim may be viable in cases that approximate but do not meet the requirements of Labor Code § 1102.5, including retaliatory discharge after an employee filed an internal complaint. (Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1123–24, 1127). Labor Code § 1102.5, as it existed prior to 2014, addresses employee reports to public agencies rather than to the employer and thus does not provide direct protection to a plaintiff who makes an internal report. However, the Collier court reasoned that Labor Code § 1102.5 evinces a strong public interest in encouraging employee reports of illegal activity in the workplace, such that a plaintiff may still have a viable Tameny claim even when he does not have a viable claim under Labor Code § 1102.5.

The after-acquired evidence doctrine applies when an employer fires an employee for an unlawful reason then later learns of employee wrongdoing that would have resulted in the employee’s termination in any event. The doctrine only (1) applies where the employer can prove it would have actually terminated the employee for such wrongdoing, and (2) cuts off the employee’s damages as of the date the employer learned of the wrongdoing. (McKennon v. Nashville Banner Pub. Co. (1995) 513 U.S 352, 362; Salas v. Sierra Chem. Co. (2014) 59 Cal.4th 407, 428.)

The doctrine applies only where the employee’s misconduct was “of such severity that the employee would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” (McKennon, supra, 513 U.S. at 362-63.)

The burden is on the employer to prove not only that it could have fired an employee for the later-discovered misconduct, but that it would in fact have done so. (O’Day v. McDonnell Douglas Helicopter Co. (9th Cir. 1996) 79 F.3d 756, 759.) In O’Day, the employer submitted an affidavit stating that the employee would have been terminated, not simply that the employee had violated company policy. (Id. at 762.)

After-acquired evidence of employee wrongdoing is not an absolute bar to retaliation claims but would merely bar the employee from collecting compensation for loss of employment during the period after the employer’s discovery of the wrongdoing. (Salas, supra, 59 Cal.4th at 428.)

 Summary adjudication must completely dispose of the cause of action or damages claim to which it is directed. (CCP § 437c(f)(1).) If a cause of action or damages claim is not shown to be barred in its entirety, no order for summary judgment or adjudication can be entered. (McCaskey v. California State Auto. Ass’n. (2010) 189 Cal.App.4th 947, 975.)

Author: Richard Hoyer
Category: Legal Procedure, Retaliation, Wrongful Termination
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