Judge: Donald F. Gaffney, Case: Llamas v. Trader Joe’s Company, Date: 2023-08-23 Tentative Ruling
TENTATIVE RULING:
Defendant moves for summary judgment/summary adjudication of all four causes of action in Plaintiff’s complaint and/or Plaintiff’s claim for punitive damages. For the reasons set forth below, the Motion is DENIED.
A. First Cause of Action for Whistleblower Retaliation under Labor Code § 1102.5
Labor Code section 1102.5 is a “whistle-blower” protection statute that “prohibits an employer from retaliating against an employee for sharing information the employee “has reasonable cause to believe ... discloses a violation of state or federal statute” or of “a local, state, or federal rule or regulation” with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709, citing Labor Code § 1102.5, subd. (b).)
Defendant argues that Plaintiff cannot prove a prima facie case under Labor Code § 1102.5 because Plaintiff cannot establish that (1) Plaintiff engaged in a protected activity and (2) Plaintiff cannot establish a causal link between her protected activities and termination. Defendant argues that “if Plaintiff establishes a prima facie case, Trader Joe’s can rebut the presumption of retaliation by articulating a legitimate, non-retaliatory reason for the adverse employment action.” (Moving Memo, 13:23-26.) As the court further explains below, this burden shifting standard is also known as the first two parts of the three-part McDonnell Douglas burden shifting for employment discrimination cases.
In Plaintiff’s opposition Plaintiff argues that the legal standard for a summary judgment motion on a section 1102.5 claim is different and does not apply the McDonnell Douglas framework. Because Defendant applied the wrong standard, Plaintiff argues that Defendant failed to meet its initial burden. Further, Plaintiff argues that even if the applicable standard were applied, genuine issues of fact exist.
Generally, in employment discrimination cases, under “the three-part burden-shifting framework laid out in McDonnell Douglas, the employee must first establish a prima facie case of unlawful discrimination or retaliation (citation); next, the employer bears the burden of articulating a legitimate reason for taking the challenged adverse employment action (citation.); and finally, the burden shifts back to the employee to demonstrate that the employer's proffered legitimate reason is a pretext for discrimination or retaliation (citation).” (Scheer v. Regents of the University of California (2022) 76 Cal.App.5th 904, 910 (citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802.))
In 2022, however, the California Supreme Court clarified the standard for an 1102.5 claim, holding that a “plaintiff need not satisfy McDonnell Douglas in order to discharge” the plaintiff's burden. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.) Rather, the evidentiary standard set forth in Labor Code section 1102.6 replaced McDonnell Douglas as the relevant evidentiary standard for retaliation claims brought pursuant to Labor Code section 1102.5. (Id.) Under this two-part standard, first, the burden is on the plaintiff “to establish, by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action.” (Id.) Once the plaintiff has made the required showing, the second step occurs and “the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Id.)
This is different than the McDonnell Douglas test because a plaintiff must merely show that retaliation was a “contributing factor” in their termination, demotion, or other adverse action. (Id. at 713.) “This means plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action.” (Id. at 713-714.) Conversely, under the McDonnell Douglas framework, the plaintiff in a mixed-motives case bears an initial burden of showing that discrimination “was a substantial factor motivating his or her termination.” (Id. at 714.)
Further, “[t]he central problem lies at the third step of McDonnell Douglas,
which requires the plaintiff to prove that an employer's proffered legitimate
reason for taking an adverse action was a pretext for impermissible
retaliation.” (Id.) “Under section 1102.6, a plaintiff does not need
to show that the employer's nonretaliatory reason was pretextual.” (Id.
at 715-716.”) “Even if the employer had a genuine, nonretaliatory reason for
its adverse action, the plaintiff still carries the burden assigned by
statute if it is shown that the employer also had at least one retaliatory
reason that was a contributing factor in the action.” (Id. at 716.)
Here, Plaintiff is correct that Defendant applied the wrong standard in its moving papers for Plaintiff’s section 1102.5 claim. Defendant’s moving papers apply the McDonnell Douglas framework, which first requires the Plaintiff to establish Plaintiff’s prima facie case. In doing so, Defendant argues that Plaintiff did not engage in protected activity and cannot demonstrate a causal connection between her actions and any adverse action against her. Defendant, however, does not show whether or not Plaintiff has established by the preponderance of the evidence that retaliation was a contributing factor in her termination—the standard set forth in 1102.6, as required. Where the moving papers on a motion for summary judgment fails “to employ the applicable framework prescribed by Labor Code section 1102.6, the [moving party] failed to meet their initial burden in moving to summarily adjudicate…” that cause of action. (Scheer v. Regents of the University of California (2022) 76 Cal.App.5th 904, 914.) In such a case, the motion “should therefore have been denied.” (Id.)
While Defendant attempts to cure this defect in its reply papers, “courts ordinarily do not consider new issues and evidence presented in reply papers because it deprives the opposing party of an opportunity to counter the argument. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537–1538.) “This principle is most prominent in the context of summary judgment motions, which is not surprising, given that it is a common evidentiary motion.” (Id. at 1537.)
Here, given that Defendant incorrectly framed its moving papers under the wrong standard, the court will not consider Defendant’s reply papers given that Plaintiff has not had the opportunity to view and respond to Defendant’s reframing of the issues in Defendant’s reply.
Defendant argues that even where a Defendant did not analyze an issue through a section 1102.6 burden-shifting standard, a trial court may still consider if Defendant presented sufficient evidence to meet this standard anyway. (Citing Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 384.) That, however, overstates any holding in Vatalaro. In Vatalaro, all of the parties and the trial court relied on the wrong standard at the trial level (the McDonnell Douglas framework), and the parties continued to rely on this standard in their initial briefs on appeal. (Id. at 383.) The appellate court, therefore, allowed both parties to submit supplemental briefing to see if the record met the standard under Lawson and section 1102.6. (Id. at 384.) After both parties had the ability to file supplemental briefs to identify what evidence was or was not sufficient to meet section 1102.6, the court found that the defendant had demonstrated that it supplied sufficient evidence to satisfy the more demanding standard under 1102.6 that it would have released the employee for legitimate, independent reasons even if the employee did not engage in the allegedly protected conduct. (Id.) That is not what has occurred here. This case is more in line with the facts and circumstances in Scheer.
The court notes that, in any event, as the court explains below in analyzing Plaintiff’s other causes of action under the McDonnell Douglas framework (which carries a lower evidentiary burden on Defendant), the record nonetheless shows that triable issues of fact exist regarding whether or not retaliation was a contributing factor in Plaintiff’s termination and whether or not Defendant would have terminated Plaintiff for legitimate, independent reasons, even if Plaintiff had not made any complaints about Defendant’s Covid-19 protocols. (See Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 379 (section 1102.6 standard imposes a higher burden of production on employer than McDonnell Douglas)).
B. Second Cause of action for Whistleblower Retaliation under Labor Code §§ 6310 & 98.6
Labor Code section 6310 provides that employers may not discriminate or retaliate against any employee because the employee “made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, their employer, or their representative.” (Babesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 108.) For purposes of a section 6310 retaliation claim, both oral and written complaints of unsafe working conditions constitute a protected activity, regardless of whether the working conditions were actually unsafe. (Id.) However, complaints about perceived deficiencies that conduct falls below the standard of care are not, on their own, sufficient to constitute actionable conduct under section 6310. (See St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 316-371.)
To establish a prima facie case of retaliation under this statute, a plaintiff must show that she engaged in a protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two. (Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431, 451.)
The parties both do not dispute, and both apply, the McDonnell Douglas framework to Plaintiff’s claim under section 6310.
In Defendant’s moving papers, Defendant argues that Plaintiff cannot establish Plaintiff’s prima facie case because Plaintiff did not engage in protected activity and that Defendant had a legitimate, non-retaliatory reason for terminating Plaintiff.
First, as to whether or not Plaintiff has engaged in protected activity, the court finds that Defendant has not met its initial burden of establishing that Plaintiff has no basis or evidence of engaging in a protected activity. Defendant argues that Plaintiff’s “tirade” at the September 14, 2020, Smart Chat was merely voicing a belief that Defendant violated Covid-19 protocols based on her experiences in the health care field. (UMF No. 140.) Defendant argues that Plaintiff was simply voicing a subjective fear and dissatisfaction, which Defendant contends is corroborated by statements of other employees when Trader Joe’s investigated Plaintiff’s inappropriate outburst. (UMF No. 135 & Mvg. Exs. L-Q.) Defendant argues that Plaintiff has presented no evidence that Defendant’s store was actually unsafe or identify the standard of care that Defendant failed to comply with.
Defendant also argues that Plaintiff’s September 23, 2020, HR complaint was not a complaint about an unsafe working condition as it was investigated and action was taken by Defendant. (See Mvg. Ex. K.)
Defendant cites St. Myers v. Dignity Health, 44 Cal.App.5th 301, 316-371 (2019) and Muller v. Auto Club of S. California (1998) 61 Cal.App.4th 431 for the legal standard as to what constitutes a protected activity under section 6310. According to Defendant, St. Myers stands for the proposition that where plaintiff provided no evidence of the relevant standard of care and only complained about what she perceived as deficiencies, this is insufficient to constitute a protected activity. Defendant contends that Muller stands for the proposition that the voicing of a fear about one’s safety in the workplace does not constitute a complaint about unsafe working conditions. The court finds that Defendant has overstated St. Myers and Muller.
In St. Myers, Plaintiff was a nurse who submitted over 50 complaints about working conditions, all of which were unsubstantiated and no action was taken against her. St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 305. She found another job and resigned. (Id.) The main issue in St. Myers was that Plaintiff did not suffer an adverse employment action as a result of her complaints. (Id.) Plaintiff contended that she was constructively terminated because she was “forced to work in an unsafe workplace and below the standard of care.” (Id. at 316.) The court, however, found that Plaintiff, while contending that she worked below the standard of care, failed to provide any evidence of the applicable standard of care. (Id.) St. Myers does not stand for the proposition that every complaint must have evidence of the applicable standard of care—only that if Plaintiff challenged the standard of care, Plaintiff must offer evidence of that standard of care.
Here, on the other hand, Plaintiff is not complaining that Defendant is forcing her to work below an undefined standard of care. Rather, Plaintiff has specifically complained that Defendant was not enforcing state and federal Covid-19 protocols, including noting that certain employees and customers were not wearing masks. In Plaintiff’s HR complaint, Plaintiff complains that Defendant allowed customers “to come in our store without masks for a very long time” and that employees were threatened with being fired if they asked customers to wear face masks. (Mvg. Evid., Ex. K.) She also states that other employees have not worn masks around each other and once the “Mates take off their masks, everyone takes their masks off.” (Id.) She also states in the complaint that when the captain is not in, the other employees do not follow guidelines.” (Id.) Her HR complaint has specific factual incidents where Covid-19 protocols (including wearing masks at that time) were allegedly not being followed. Unlike the Plaintiff in St. Myers, Plaintiff was not referencing a vague, generalized and unidentified standard of care that was not being followed.
Further, in Muller, Plaintiff had an anxiety disorder that she contended Defendant did not accommodate. Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431, 451. Muller found that Plaintiff’s separate statement only stated that she was terminated subsequent to expressing concerns about workplace safety—not because she expressed those concerns. (Id.) Nonetheless, Plaintiff’s concerns that she remove her name tag from her desk, locking doors accessing her work area, hiring a security guard for the building, and having cameras installed outside the building was not based on a foreseeable risk of crime at her workplace, but based on the fear from her anxiety disorder. (Id. at 451.) The court found that an employer cannot reasonably be expected to insure against all crime because of an employee’s unreasonable perception due to her anxiety disorder. (Id.)
Here, there is insufficient evidence that Plaintiff’s belief that customers and other employees not wearing masks violated Covid-19 protocols was unreasonable and only based on Plaintiff’s subjective perceptions or an anxiety disorder. Defendant’s own Covid-19 Safety procedures requires customers to use masks. (See Mvg. Ex., Ex. E at TJ_000225.) Defendant’s safety notebook also strongly recommended that employees wear a cloth mask and, where mandated by the government, employees were required to wear a face covering. (Id. at TJ_000223.) Plaintiff’s complaints, therefore, were based on protocols that were delineated by Defendant that were allegedly, according to Plaintiff, not being followed. (See HR Complaint at Mvg. Evid, Ex. K.) That is a stark difference than the Muller Plaintiff’s fear-based heightened need for safety due to her anxiety disorder.
The court finds that because there is evidence that Plaintiff voiced concerns about alleged violations of state, federal, and Defendant’s Covid-19 safety protocols at the September 14, 2020, Smart Chat and through emails to HR, Defendant has not negated an element of Plaintiff’s prima facie case that Plaintiff did not engage in a protected activity. See e.g., Rodriguez v. Laboratory Corporation of America (C.D. Cal. 2022) 623 F.Supp.3d 1047, 1056 (employee’s complaints related to employer’s Covid-19 protocols all relate to unsafe working conditions and an unsafe workplace and constitute a protected activity under section 6310.)
b. Legitimate Non-Retaliatory Reason
Defendant contends that Plaintiff was not terminated because she voiced concerns, but because of how she voiced those concerns. As such, Defendant argues that Plaintiff was terminated for legitimate, non-discriminatory reasons—namely Plaintiff’s alleged rude and disrespectful tone to other employees. Defendant offers the following evidence:
That court finds that this evidence is sufficient to meet Defendant’s burden on a motion for summary judgment to establish that Defendant had legitimate, non-retaliatory reasons for terminating Plaintiff. A jury could reasonably find from this evidence that Defendant terminated Plaintiff’s employment due to Plaintiff’s rude and unprofessional behavior which made the workplace uncomfortable for other employees.
The burden then shifts to Plaintiff to offer sufficient evidence to create a triable issue of fact that Defendant’s reason for termination was a pretext for retaliation. Plaintiff offers the following evidence:
The court finds that this evidence is sufficient to create a triable issue of fact as to whether or not Defendant’s reason for terminating Plaintiff was pretext for retaliation. While Defendant argues that the reason was based on how Plaintiff made her complaints, a jury could reasonably find based on the record that Plaintiff was terminated because of her complaints. A jury could reasonably find that Plaintiff had been working with Defendant since 2016, but there were no warnings or performance issues prior to Plaintiff making complaints about Defendant’s compliance with Covid-19 protocols. The motion is, therefore, DENIED as to this cause of action.
C. Third Cause of Action under Labor Code Section 98.6
Section 98.6 prohibits an employer from retaliating against an applicant or employee because the applicant or employee exercised a right afforded him or her under the Labor Code. (Garcia-Brower v. Premier Automotive Imports of CA, LLC (2020) 55 Cal.App.5th 961, 972.) The statute provides, in relevant part: “A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment ... because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her.” (Id., citing § 98.6, subd. (a).) “The phrase “any rights” refers to rights provided under the Labor Code.” (Id.) “By its terms, section 98.6 incorporates violations of other sections of the Labor Code, including section 1102.5. It appears that the Legislature intentionally crafted a statutory scheme with such redundancy in order to provide robust worker protections.” (People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 731–732 (internal citation removed).
As such, because triable issues of fact exist as to Plaintiff’s two other whistleblower claims, both of which are provided under the Labor Code, triable issues of fact necessarily exist as to Plaintiff’s section 98.6 claim. The court disagrees with Defendant that Plaintiff must make complaints of wage and hour violations for section 98.6 to apply. As the court found, triable issues of fact exist regarding whether or not Plaintiff engaged in protected activity that is protected under Labor Code sections 1102.5 and 6301. The motion is, therefore, DENIED as to this cause of action.
D. Wrongful Termination in Violation of Public Policy
The tort of wrongful termination imposes liability on employers who discharge employees in violation of fundamental public policies. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172.) To state a prima facie case of wrongful discharge in violation of public policy, Plaintiff must show: (1) an employer-employee relationship; (2) Plaintiff was terminated; (3) the termination was substantially motivated by a violation of public policy; and (4) damages. (Yau v. Allen (2014) 229 Cal. App. 4th 144.) “Fundamental public policy prohibits the retaliatory discharge of employees for whistle blowing in the public interest” (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 472.)
Defendant here argues that because Plaintiff’s retaliation claims fail, Plaintiff’s wrongful termination claim also must fail. However, because triable issues of fact exist regarding Plaintiff’s retaliation claims, triable issues of fact necessarily exist regarding Plaintiff’s wrongful termination cause of action. If a jury were to reasonably find that the reason for Plaintiff’s termination was in retaliation for Plaintiff’s making complaints about safety, a jury could also reasonably find that such a reason violates public policy. The motion is DENIED as to this cause of action.
E. Punitive Damages
Defendant argues that Plaintiff is not entitled to punitive damages because Plaintiff has not shown malice, oppression, or fraud for punitive damages and Plaintiff has not shown that Defendant’s managing agent ratified any alleged misconduct.
As to Defendant’s first contention, courts have found that a violation of whistleblower retaliation statutes are a sufficient basis to recover punitive damages. (Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 267.) Because triable issues of fact exist regarding whether or not Defendant violated various whistleblower retaliation statutes, triable issues of fact exist as to whether or not punitive damages are appropriate.
Secondly, Defendant argues that Plaintiff cannot establish that an officer, director, or managing agent of Defendant ratified or engaged in the wrongful conduct. “The scope of a corporate employee's discretion and authority under our [managing agent] test is therefore a question of fact for decision on a case-by-case basis.” (White v. Ultramar, Inc. (1999) 21 Cal. 4th 563, 567.) If there exists a triable issue of fact regarding whether a corporate employee is a managing agent, that factual question must be determined by the trier of fact and not the court on a motion for summary adjudication. (Davis v. Kiewit Pac. Co. (2013) 220 Cal. App. 4th 358, 366.)
In the context of a motion for summary judgment/adjudication, the moving party bears the initial burden of proof. (Id. at 369.) When a defendant moves for summary adjudication under section 3294, the defendant bears the initial burden to “produce sufficient evidence to make a prima facie showing that there was no triable issue regarding whether [their employee] was a managing agent of [the plaintiff].” (Id.) A defendant “cannot satisfy its initial burden of production of evidence by making a conclusory statement of law, whether directly or through a declaration of one of its employees” that “simply [restates] the applicable legal standard under White.” (Id.)
So, for example, where a defendant’s evidence in the moving papers was a declaration by an employee that states:
I am not an officer or a director of Kiewit. As a Kiewit employee, I have never drafted corporate policy or had substantial discretionary authority over decisions that ultimately determine Kiewit's corporate policy. The only role that I play with respect to Kiewit's anti-harassment and EEO policies is to ensure that they are followed on the job. In his declaration in support of the motion, Lochner stated in part: As a Kiewit employee, I have never had substantial discretionary authority over decisions that ultimately determine Kiewit's corporate policy. I do not write or recommend implementation of any human resources policies and procedures.
(Id. at 367.) The court of appeal found that this language is merely a “legal conclusion” that simply “parrots” the White standard. (Id. at 369.) That “declaration did not contain a sufficient description of his job duties and responsibilities and the nature and extent of his authority and discretion as the Project's manager, as well as his exercise of that authority and discretion, to support a reasonable inference that he did not “exercise substantial discretionary authority over [significant] aspects of [defendant’s business.]” (Id. at 369-70.) Accordingly, the court concluded that the defendant “did not carry its initial burden of production to make a prima facie” showing and held that the trial court committed a reversable error by finding that no triable issue of fact existed. (Id. at 370.)
The court finds that Defendant’s evidence fails to meet Defendant’s initial burden and merely parrots the language in White. The declarations of Donnie Martin and Andre McCrury do not contain details of their job duties and responsibilities, the nature and extent of their authority and discretion, and their exercise of that authority. A defendant “cannot satisfy its initial burden of production of evidence by making a conclusory statement of law, whether directly or through a declaration of one of its employees” that “simply [restates] the applicable legal standard under White.” (Davis, supra, at p. 369.) Because the entirety of Defendant’s evidence is merely legal conclusions that do not “provide a sufficient description of [his] job duties and responsibilities and the nature and extent of his authority and discretion,” Defendant fails to meet its initial burden of proof. (Id.)
The motion is, therefore, DENIED as to the issue of punitive damages.
F. Evidentiary Rulings
The court sustains Plaintiff’s evidentiary objection nos. 1-2 regarding the Martin Declaration and the McCrury declaration.
Plaintiff to give notice.