Judge Colin Leis, Case Number: 21STCV39839, Date: 2024-01-08 Tentative Ruling

Tris Carpenter v. American Federation of State County and Municipal Employees, District Council 36, et al.

On October 29, 2021, Plaintiff Tris Carpenter (Plaintiff) filed a complaint against Defendant American Federation of State County and Municipal Employees, District Council 36 (Defendant Council 36) and Defendant American Federation of State County and Municipal Employees, National Headquarters (Defendant National).

The complaint alleges violation of Labor Code section 1102.5 and wrongful termination in violation of public policy.

On February 17, 2023, Defendant National filed this motion for summary judgment or, in the alternative, summary adjudication for the first cause of action and Plaintiff’s request for punitive damages.

Defendant National argues the court should grant summary adjudication for this cause of action because Plaintiff was not its employee. In the alternative, Defendant National contends that Plaintiff cannot establish an agency relationship between Defendant National and Defendant Council 36, the latter of which terminated Plaintiff’s employment.

Defendant National contends Plaintiff was not its employee as required for the relevant cause of action. A prerequisite for asserting a claim under Labor Code section 1102.5 is an employer-employee relationship at the time the retaliatory conduct took place. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 288.) To determine whether such a relationship exists, courts look to the totality of the circumstances. (Vernon v. State of California (2004) 116 Cal.App.4th 114, 124.) A key factor is the extent to which the defendant controlled the plaintiff’s performance of employment duties. (Ibid.) Other factors include payment of salary or other employment benefits, ownership of equipment necessary to perform the job, location where work is performed, obligation of the defendant to train the employee, authority of the defendant to discipline and fire the employee, and whether the work is part of the defendant's regular business operations. (Id. at p. 125.)

In support of its motion, Defendant National offers evidence that Plaintiff repeatedly acknowledged and confirmed that Defendant Council 36 was his sole employer. (Blair Decl., ¶¶ 7, 8; Ex. A; Ex. D; Ex. F; Ex. G.) Plaintiff has also admitted that Defendant National played no role in his appointment as Defendant Council 36’s Interim Executive Director. (Adams Decl., ¶ 3; Ex. B, pp. 267:8-268:14.) And when Plaintiff served as Defendant 36’s Organizing Director (the position he held when terminated), he only reported to Defendant Council 36’s then Executive Director. Under Defendant Council 36’s constitution, the Executive Director had the authority to employ, terminate, direct, and fix the compensation of Plaintiff. (Blair Decl., ¶ 9; Ex. S, p. 8.) Moreover, Plaintiff has admitted that Defendant Council 36 (as opposed to Defendant National) paid him, evaluated him, and supplied his office and work equipment. (Adam Decl., ¶¶ 2, 3; Ex. A, p. 198:2-15; Ex. B, pp. 207:4-271:18.) Last, Defendant Council 36 ultimately terminated Plaintiff’s employment. (Blair Decl., ¶ 8; Ex. M.) Given the foregoing, Defendant National has satisfied its prima facie burden, meaning Plaintiff must now establish a triable issue of material fact.

Plaintiff, for his part, offers evidence supporting his contention that Defendant National employed him. First, Defendant National’s constitution suggests Defendant National had the authority to regulate Defendant Council 36, as well as discipline or terminate Defendant Council 36’s employees, including Plaintiff. That is, any member of Defendant National may file charges against an employee of a subordinate body, such as Defendant Council 36. (Blair Decl., ¶ 9; Ex. R, p. 364.) The grounds for such charges include violation of Defendant National’s constitution or refusal to carry out decisions issued by Defendant National. (Blair Decl., ¶ 9; Ex. R, pp. 364-365.) A local union trial body initially hears the charges. (Blair Decl., ¶ 9; Ex. R, p. 366.) The local union trial body may then suspend or discharge the employee. (Blair Decl., ¶ 9; Ex. R, pp. 370-371.) Decisions of a local union trial body may be appealed to a council trial body, whose decision in turn may be appealed to Defendant National’s judicial panels. (Blair Decl., ¶ 9; Ex. R, p. 372.) In certain circumstances, then, Defendant National has the final say on whether an employee, such as Plaintiff, is suspended or discharged.

In addition, Plaintiff points out that if Defendant Council 36 does not comply with Defendant National’s constitution, Defendant National has the power to place Defendant Council 36 into an administratorship. This means Defendant National may take over Defendant Council 36’s assets; it also means Defendant National may take over management of Defendant Council 36. (Blair Decl., ¶ 9; Ex. R, p. 355.) Defendant National contends such an administratorship was not in place when Plaintiff was terminated. In this context, though, courts consider the defendant’s right to control the employee’s work. (Vernon v. State of California, supra, 116 Cal.App.4th at p. 126.) And although Defendant National did not pay Plaintiff his salary, it did administer his benefits. (Blair Decl., ¶ 8; Ex. C; Good Decl., ¶ 11; Ex. J, p. 12:21-13:15.)[1] Moreover, Defendant National trained and guided Defendant Council 36’s employees, including Plaintiff. (Good Decl., ¶¶ 2, 5; Ex. A, pp. 14:14-22, 17:16-18:17.) To continue, Plaintiff’s work for Defendant Council 36 was part of Defendant National’s regular business operations: namely, the organization of laborers. (Blair Decl., ¶ 9; Ex. R; Ex. S.) Thus, Plaintiff has created a triable issue of material fact whether Defendant National employed Plaintiff. (¿¿Dore v. Arnold Worldwide, Inc. supra, 39 Cal.4^th at p. 389¿¿ [noting that courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].)

Given the foregoing, the court denies Defendant National’s motion for summary adjudication for this cause of action. The court need not address Defendant National’s contention that an agency relationship did not exist. (Code Civ. Proc.., § 437c, subd. (f)(1) [“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action . . .”].)

Defendant National challenges Plaintiff’s request for punitive damages. A court may grant a defendant’s motion for summary adjudication of the plaintiff’s claim for punitive damages when the plaintiff fails to present clear and convincing evidence of tortious conduct by the defendant that would justify such damages. (Szarowicz v. Birenbaum (2020) 58 Cal.App.5th 146, 171.) The plaintiff must show that the defendant’s actions were malicious, fraudulent, or in blatant violation of law or policy. (Food Pro Int’l Inc. v. Farmers Ins. Exch. (2008) 169 Cal.App.4th 976, 995.) Defendant National argues Plaintiff has provided no evidence that it acted with oppression, malice, or fraud. Plaintiff in turn contends that Defendant National’s alleged malice is a factual question for the jury alone. In his opposition, Plaintiff does not direct the court to any supporting evidence on which the jury could find malice. Thus, the court grants Defendant National’s motion for summary adjudication of punitive damages.

The court denies Defendant’s motion for summary adjudication of Plaintiff’s cause of action for violation of Labor Code section 1102.5. The court grants Defendant’s motion for summary adjudication of Plaintiff’s request for punitive damages.

[1] The court disregards the exhibits that Plaintiff lodged under seal on October 16, 2023, because neither Plaintiff nor Defendant complied with California Rules of Court, rules 2.550 and 2.551 which require a sealing order to file evidence under seal for non-discovery motions. The parties’ protective order does not govern non-discovery motions. To seal evidence for a non-discovery motion, the court must make express findings. One such express finding is an “overriding interest” in maintaining confidentiality; the parties’ interest in complying with a protective order cannot, by itself, be bootstrapped into an “overriding interest.” (See Good Decl. Oct 12.) But because Plaintiff did not give Defendant the notice required under CRC 2.551(3)(A)(iii) & (B), and because discretion is the better part of valor, the court disregards the exhibits instead of unsealing them.