Judge: Gregory Keosian, Case: 21STCV45730, Date: 2023-12-12 Tentative Ruling

Case Number: 21STCV45730    Hearing Date: December 12, 2023    Dept: 61

Defendants The Boeing Company and Ramon Chi’s Motion for Summary Judgment or Adjudication is GRANTED as to all causes of action except the fourth and eighth causes of action for age discrimination and wrongful termination, and as to the prayer for punitive damages.

I.                OBJECTIONS

Defendants The Boeing Company and Ramon Chi (Defendants) offer objections to the declaration of Plaintiff William Festa (Plaintiff) submitted in opposition to their motion for summary judgment. Objections No. 23–26 are SUSTAINED as to Plaintiff’s testimony without foundation concerning what his co-workers’ managers agreed to with them. Objections No. 23–26 and 60 are also SUSTAINED as to Plaintiff’s speculations concerning Defendants’ age-related motives for her termination, for which he lacks foundation in personal knowledge.

II.             SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  (Aguilar, supra, 25 Cal.4th at 850.)  The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.  (Ibid.)  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendants The Boeing Company and Ramon Chi(Defendants) move for summary judgment and adjudication on all claims alleged against them in Plaintiff William Festa’s (Plaintiff) Complaint, on the grounds that there are no triable issues of fact as to whether Plaintiff was terminated or harassed because of his age or disability, or that he was wrongfully deprived of severance pay upon his termination. (Motion at pp. 16–24.) Defendants also seek to dismiss Plaintiff’s prayer for punitive damages. (Motion at pp. 24–25.)

Defendants present the following facts. Plaintiff began his employment with Boeing In 1997. (Plaintiff’s Separate Statement of Undisputed Material Facts No. 4.) Plaintiff was 65-years old at his termination. (Complaint ¶ 15.) Plaintiff and his wife/fiancé Cindy Tea, who also worked at the same Boeing facility, were injured in a car accident in May 2015, as a result of which they both began attending medical appointments which required time away from work. (PUMF No. 5–11.)

In October 2019, Defendants received an anonymous report that Plaintiff’s partner was recording hours of work that she was not working. (PUMF No. 25.)[1] Boeing assigned investigation of the report to Defendant Reed Rowbotham, a corporate investigator who had no knowledge of Plaintiff prior to the investigation. (PUMF No. 25–26.) Rowbotham’s investigation uncovered a discrepancy between Plaintiff’s recorded time on the employee timekeeping system (ETS) and Plaintiff’s appearance on surveillance footage entering and leaving the facility. (PUMF No. 32–37.) Rowbotham reviewed the login records on Plaintiff’s company laptop, which showed that he did not log in to his laptop while he was off-premises during the period under investigation out. (PUMF No. 40–41.)

Rowbotham interviewed Plaintiff on February 5, 2020, and later emailed him a proposed statement which he reviewed, edited, and sent back to him within two hours. (PUMF No. 43.) In the statement, Plaintiff explained the discrepancy in his ETS records by noting his medical appointments as a result of a 2015 car accident, that he made up any work not performed on-site at home after hours, and that he performed his work on his personal computer. (PUMF No. 43–44; Ngo Decl. Exh. 17 to Plaintiff’s Deposition.)  Defendants claim that Boeing policy prevents employees from using personal devices to work on proprietary Boeing data. (Rowbotham Decl. ¶ 12.)

Rowbotham’s investigation concluded that Plaintiff had claimed 61 work hours during the relevant period, but had in fact worked only 36.9 hours, i.e. that 39.5% of the work hours he claimed were “questionable.” (PUMF No. 51–56.) Defendants claim that it is Boeing’s general practice to discharge an employee found to have more than 20% questionable hours during a review period. (Campbell Decl. ¶ 8.) Rowbotham also concluded that Plaintiff had violated company policy by connecting an external drive to his Boeing laptop. (PUMF No. 59.) The investigation included similar conclusions about Cindy Tea as to the mischarging of time, who was seen on surveillance footage entering and leaving the premises with Plaintiff. (PUMF No. 61.)

Rowbotham’s report was submitted to an Employee Corrective Action Review Board (ECARB), made up of four members who had neither met nor heard of Plaintiff or Tea, as well as Plaintiff’s manager, Defendant Ramon Chi. (PUMF No. 62–66.)[2] On March 4, 2020, the ECARB decided to terminate both Plaintiff and Tea’s employment. (PUMF No. 67.)

To establish a discrimination claim under FEHA, an employee must prove the following elements: “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.) If the employer offers evidence of a legitimate, nondiscriminatory reason for the action, “the plaintiff bears the burden of proving the employer's proffered reason was pretextual.” (Brundage v. Hahn (1997) 57 Cal.App.4^th 228, 236.)

The elements of a retaliation claim are similar:

In order to establish a prima facie case of retaliation under this section [FEHA], a plaintiff must show (1) he or she engaged in a ‘protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.

(Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244, internal quotation marks omitted.)

“‘[California's] Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) . . . explicitly prohibits an employer from harassing an employee on the basis of race, sex or [ethnicity.]’ . . .  To prove a claim under Title VII, the harassment must be ‘sufficiently severe or pervasive “to alter the conditions of [the victim's] employment and create an abusive working environment.”’ [Citation.]” (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 35.)

Defendants, in reliance on the facts outlined above, claim that Plaintiff cannot establish his claims for discrimination, retaliation, harassment, or wrongful termination. They argue that Plaintiff has identified not instances, indicators, or evidence of discriminatory or retaliatory animus motivating any conduct against him. (PUMF No. 72.) Rather, Defendants argue that Plaintiff’s termination was motivated by the investigation into his inaccurate ETS recording of hours worked, conducted by an impartial panel. (Motion at pp. 16–18.) Moreover, Defendants note that they never refused a request from Plaintiff for intermittent leave, meaning that Plaintiff’s claims for failure to accommodate and failure to engage in interactive process also fail. (Motion at p. 18.)

Plaintiff in opposition submits the following evidence. In his declaration, he states that his manager, Ramon Chi, made comments to him urging him to retire. (Festa Decl. ¶ 63.) Plaintiff in his deposition testified to two instances in which Chi called Plaintiff into his office, ostensibly to discuss ordinary work, but would then turn the subject to Plaintiff’s age and whether he had considered retiring; telling Plaintiff that he should consider his health and that of his mother; that he should consider moving on to other things. (Ngo Decl. Exh. A at pp. 54–57.) In another instance, Chi spoke to Plaintiff after a staff meeting, telling him that they weren’t getting any younger, and had to consider what they needed to do before their time ran out. (Ngo Decl. Exh. A at pp. 58–60.)[3] Plaintiff also contends that Chi was at all times kept apprised of his medical appointments and approved of his “flex” schedule, whereby he would make up work off-site. (Festa Decl. ¶ 20; Ngo Decl. Exh. A at pp. 180–181.) Plaintiff denies ever having been presented with a policy requiring him to do all work on a company laptop. (Festa Decl. ¶¶ 44–45.) And while Defendants contend that their general policy to terminate those with more than 20% questionable time in a given investigation period, Plaintiff presents a written discipline policy matrix that states certain violations — such as “Misuse or Failure to Protect Information or Intellectual Property” and “Falsification of Records” or “Inaccurate or Improper Processing or Reporting of Information” — were generally punishable by lesser disciplinary measures, such as “time off from work” or “written warning.” (Festa Decl. Exh. A.)

Plaintiff has shown the existence of triable issues of fact as to his claim for age discrimination. Plaintiff has identified age-related comments made by his manager, to the effect that he ought to consider retiring. This same manager formed part of the ECARB board that determined that Plaintiff was to be terminated. Although Defendant in reply contends that this manager “played no role in the termination decision” (Reply at p. 4), this contention is belied by Chi’s own declaration, submitted with the motion, in which he states that he “was a voting member” of the ECARB that “made the decision to terminate Festa’s employment.” (Chi Decl. ¶ 4.) Plaintiff has thus shown circumstances evidencing a discriminatory motive for the purposes of establishing his prima facie case of age discrimination. (See Dinslage, supra, 5 Cal.App.5^th at p. 378; Moore, supra, 248 Cal.App.4th at p. 244.) Moreover, although Defendants contend that they had a legitimate basis to terminate Plaintiff based on the evidence presented in Rowbotham’s report, Plaintiff attests that Chi would have been aware of the legitimacy of his time records, and further that the violations for which he was terminated ordinarily would not have warranted termination, based on Boeing’s written policies. Triable issues of fact thus exist as to whether the reasons for Festa’s termination were pretext.

The facts above are sufficient to maintain Plaintiff’s fourth cause of action for age discrimination and eighth cause of action for wrongful termination. The motion is therefore DENIED as to these causes of action.

However, Plaintiff’s remaining causes of action are unsupported. Plaintiff no evidence of any action or harassment directed against him based on disability or his engagement in protected activity. (PUMF No. 72.) Thus there are no triable issues of fact as to Plaintiff’s claims for disability discrimination or retaliation. And Plaintiff’s claims for harassment and hostile work environment are based exclusively on Chi’s comments made to him based on age. But these comments are neither severe nor pervasive. (Dee, supra, 106 Cal.App.4th at p. 35.) Plaintiff himself testified about these comments, “It wasn’t really a hostile environment.” (Ngo Decl. Exh. A at p. 211.)

Nor can Plaintiff maintain his claims for failure to provide reasonable accommodation, or to engage in an interactive process. An element of a reasonable accommodation claim is that the defendant “ailed reasonably to accommodate [the plaintiff’s] disability.” (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1107.) And to prevail on an interactive process claim, the plaintiff must “must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018.) It is undisputed that Plaintiff was never denied a request for time off to take his medical appointments. (PUMF No. 11.)

Finally, Plaintiff’s claims based on the failure to pay final wages also fail. The tenth cause of action for violation of Labor Code §§ 201, 202, and 218 is based on Defendants’ failure to pay “[t]he severance pay Plaintiff was entitled to.” (Complaint ¶ 133.) But Plaintiff has never seen and could not describe at deposition any such policy, or that any such promise had been made to him. (PUMF No. 85–87.) Plaintiff’s derivative claim based on the Unfair Competition Law also fails for this same reason, since it uses these Labor Code sections as predicate violations. (Complaint ¶¶ 142–144.)

Defendants finally argue that Plaintiff’s prayer for punitive damages cannot stand, because under Civil Code § 3294, any wrongful conduct alleged against a corporate employer must be with the advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud, or malice “”on the part of an officer, director, or managing agent of the corporation.” (Civ. Code § 3294, subd. (b).) Here, it is undisputed that Chi was not an officer, director, or managing agent of Boeing. (PUMF No. 89–91.) Plaintiff advances no argument in support of his prayer for punitive damages in opposition.

Accordingly, the motion is GRANTED as to all causes of action save the fourth and eighth causes of action, and as to the prayer for punitive damages.