Judge Jill Feeney, Case Number: 19STCV29137, Date: 2023-10-27 Tentative Ruling

This is an action for employment discrimination. The Second Amended Complaint (“SAC”) alleges as follows. Plaintiff Duncan Milner (“Milner”) was employed by Defendants beginning in 1987 until he was terminated in July, 2019 while serving as the global creative president for TBWA Worldwide. (SAC ¶¶ 10, 14d.) Defendants include TBWA Worldwide, Inc. (“TBWA”), TBWA Chiat Day LA, TBWA Chiat/Day, Inc., TBWA/Chiat/Day, TBWA/Media Arts Lab, MAL/For Good, Omnicon Group, Inc., Omnicom Holdings USA Inc. Omnicom Management Inc., Omnicom International Holdings, Inc. (collectively, “Entity Defendants”), Michael Claypool, Erin Riley, Sheri Thorburn, Troy Ruhanen, Chris Garbutt, and Elaine Stein (collectively, the “Individual Defendants”). (SAC p. 1.) The FAC alleges adverse employment actions by Defendants against Milner ultimately resulting in unlawful termination. (SAC ¶¶ 10-14.)

Plaintiff also requests judicial notice of historical stock data obtained from Yahoo Finance between July 13, 2009 and July 17, 2009. Plaintiff cites Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1574 in support of this request.. However, in Ampex, the court took judicial notice only of the fact that Yahoo! Offered financial message boards on the internet for publicly traded companies, not the contents of the message boards. Plaintiff also cites Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569 and Charter Township of Clinton Police & Fire Retirement System v. Martin (2013) 219 Cal.App.4th 924, 933, neither of which discuss whether stock prices are judicially noticeable. Nevertheless, because historical stock prices are not reasonably subject to dispute and are capable of immediate and accurate determination, the information is judicially noticeable under Evid. Code, Section 452(h). The request is granted.

Plaintiff objects to Defendants’ evidence submitted in support of summary judgment. Although most Plaintiff’s objections arose from Defendants’ inadvertent failure to attach certain evidence to its original motion and citation errors, Defendants thereafter filed a notice of errata and supplemental compendium of evidence. Additionally, the objections refer generally to Defendants’ statement of undisputed facts, rather than to evidence. Plaintiff’s objections are overruled.

Code Civ. Proc., section 437c subdivision(q) states in relevant part: “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” The Court finds that Defendants’ remaining objections are not material to the disposition of the motion. Defendants’ objections to deposition testimony also fail to comply with Cal. Rules of Court, Rule 3.1345 because they fail to quote or set forth the objectionable statement or material.

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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

Defendants move for summary judgment as to Plaintiff’s causes of action based on violations of the FEHA on the grounds that Plaintiff (1) failed to exhaust his administrative remedies under FEHA, (2) cannot recover for conduct that occurred outside FEHA’s one-year statute of limitations, (3) cannot establish a prima facie case of discrimination, and (4) has no evidence to rebut the existence of a legitimate, non-discriminatory reason for the alleged adverse employment action

Government Code section 12940 provides that it is unlawful for an employer to refuse to hire or employ a person or to discharge a person from employment on the basis of age. (See Govt. Code, § 12940(a).) A prima facie case of age discrimination arises when the employee shows “(1) at the time of the adverse action he or she was 40 years of age or older, (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job and (4) the employee was replaced in his position by a significantly younger person.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002.)

After a plaintiff has made a prima facie case, the defendant must demonstrate that the employment decision was based on a legitimate, nondiscriminatory reason. (Id. at 1002.) If the defendant meets its burden, the presumption of discrimination disappears. The plaintiff must then show that the defendant’s purported legitimate reason is merely pretext. “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or the proffered reason was insufficient to motivate discharge.” (Id.)

On a motion for summary judgment, the moving party must initially show that under the undisputed material facts, (1) one or more elements of plaintiff’s discrimination claim is without merit, or that (2) defendant’s action was based on legitimate, non-discriminatory factors. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.) In other words, the initial burden on summary judgment remains with the moving party at all stages of the McDonnell Douglas analysis. (McGrory v. Applied Signal Tech., Inc. (2013) 212 Cal.App.4th 1510, 1523; see also Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309; King v. United Parcel Serv., Inc. (2007) 152 Cal.App.4th 426, 432.)

Before filing an employment discrimination lawsuit under the Fair Employment and Housing Act, a plaintiff must exhaust their administrative remedies before the Department of Fair Employment and Housing (now known as the Civil Rights Department). (Gov. Code §§ 12960(b), (d); 12965(b); see Rojo v. Kliger (1990) 52 Cal.3d 65, 88.) This requirement is jurisdictional. (Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 889-90.) To bring a lawsuit against a party under FEHA, the defendants must have been named in the caption or body of the charge filed before CRD. (See, e.g., Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109 116-18.) At the conclusion of the administrative process, which may or may not include an investigation or administrative remedies, CRD generally issues the employee a right-to-sue notice. (Id.)

“To exhaust his or her administrative remedies as to a particular act made unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) The administrative exhaustion requirement is satisfied if FEHA claims in a judicial complaint are “like and reasonably related to” those in the DFEH complaint or “likely to be uncovered in the course of a DFEH investigation.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 154; Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1617.) A plaintiff exhausts his administrative remedies by identifying a defendant, even if not by name, as the alleged perpetrator of discrimination in a DFEH complaint. (Clark v. Superior Court (2021) 62 Cal.App.5th 289, 304.) It is sufficient that the complaint contain general terms describing the alleged discriminatory parties and the alleged discriminatory acts. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 267.) Administrative charges are to be construed liberally. (Id.)

Here, Defendants argue that Plaintiff failed to exhaust administrative remedies because his DFEH complaints fail to set forth any facts supporting his FEHA claims. Plaintiff argues that the DFEH complaint and subsequent amendments to the complaint sufficiently allege Plaintiff suffered adverse employment actions because of his age.

Plaintiff’s DFEH complaint alleges that Plaintiff, due to his age, was terminated, denied promotion, denied equal pay, demoted, denied any employment benefit or privilege, denied reasonable accommodation for disability, denied work opportunities or assignments, and forced to transfer. (Defendant’s evidence, Exh. 1.)

Although the DFEH complaint does not contain very detailed facts, the caption contains the names of all the entities and individuals named in the instant action. Additionally, the complaint alleges the Defendants committed specific acts due to Plaintiff’s age. Defendants cite an unpublished federal case, Foster v. Bank of America, Nat. Ass'n (E.D. Cal., Aug. 14, 2014, No. 1:13-CV-1188-LJO-BAM) 2014 WL 4092311, at *5, in support of their argument. However, Foster concerned a plaintiff whose DFEH complaint merely asserted in a conclusory fashion that she experienced unlawful discrimination, harassment, and retaliation. Here, Plaintiff’s DFEH complaint contains more than conclusory statements and instead describes specific acts which Plaintiff alleges were discriminatory. The Court finds that these specific acts are sufficient to show Plaintiff exhausted his administrative remedies before filing this action. Additionally, Plaintiff’s causes of action under the FEHA each are reasonably related to the acts described in the DFEH complaint.

“While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)

The current Government Code §12960 provides that a DFEH complaint alleging FEHA violations “shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate occurred.” (Gov. Code, § 12960(e).) In 2019, the Legislature amended Government Code §12960 with Assembly Bill No. 9, and the amended statute came into effect on January 1, 2020. Under the former Government Code section 12960 (in effect from January 1, 2018 to December 31, 2019), a DFEH complaint alleging FEHA violations had to be filed “one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred,” subject to a certain exceptions. The legislative digest and section 3 of the bill indicate the “act shall not be interpreted to revive lapsed claims.” (2019 Cal. Legis. Serv. Ch. 709 (A.B. 9).)

Defendants’ evidence shows that Plaintiff began his employment with TBWA in November 2002. (UMF No. 5.) In 2009, Plaintiff became the Chief Creative Officer of Media Arts Lab (“MAL”). (UMF No.7.) MAL is an agency that was formed to serve its one and only client, Apple. (UMF No. 8.) As the CCO of MAL, Plaintiff was responsible for the creative output of MAL for Apple. (UMF No. 9.) Plaintiff reported to the then-Chairman of MAL, Lee Clow. (UMF No. 10.) During his tenure as CCO of MAL, Plaintiff was involved in the creative direction of many successful and award-winning Apple commercials, advertisements, and marketing campaigns. (UMF No. 11.) Plaintiff’ received a high base salary, periodic stock grants, and large discretionary bonuses. (UMF No. 13.) In 2014, Plaintiff received a $700,000 base salary, a $330,000 cash bonus, and $70,000 in stock grants. (UMF No. 16.) In 2015, Plaintiff received a base salary of $700,000, a $450,000 cash bonus, and $150,000 in stock grants. (UMF No.18.) In 2016, Plaintiff received a base salary of $700,000 and a $150,000 cash bonus. (UMF No. 20.) In August 2016, Ruhanen decided to remove Plaintiff as CCO of MAL after Apple’s Vice President of Marketing, Tor Myhren began complaining that Plaintiff’s work was not very good. (UMF Nos. 25-47.)

The continuing violations doctrine is a tolling exception to the one-year statute of limitations for filing a complaint with the DFEH. (Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th at 720-721 [“Dominguez”].) Under the continuing violations doctrine, “a FEHA complaint is timely if discriminatory practices occurring outside the limitations period continued into that period.” (Id. at p.721.) “A continuing violation exists if: (1) the conduct occurring within the limitations period is similar in kind to the conduct that falls outside the period; (2) the conduct was reasonably frequent; and (3) it had not yet acquired a degree of permanence.” (Ibid. [emphasis added].) A continuing violation may be established by demonstrating a company-wide policy or practice or a series of related acts against a single individual. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 64.)

“Similar in kind” under the continuing violations doctrine does not mean that the “same” conduct that occurred outside the limitations period must have also occurred within the limitations period. (Dominguez at p. at 724.) Instead, the question is whether the “conduct within the limitations period may be viewed as part of a continuing violation because there is evidence that the former was related to the latter.” (Id.)

“Permanent” in this context means that the conduct has stopped, the plaintiff has resigned, or the defendant’s statements and actions would make it clear to a reasonable employee that any further efforts to resolve the issue internally would be futile. (CACI 2508)

Here, Plaintiff alleges that TBWA promised $100,000 salary increases and stock bonuses to match his base salary every year for five years. (PUMF Nos. 16-20.) Despite this promise, Plaintif’s salary stagnated at $700,000 and he did not receive the promised stock and bonuses. (Milner Decl., ¶15.) Plaintiff’s bonus in 2015 was $170,000 less than what he received in 2013 and 2014. (Id.; Defendants’ Exh. 39.) In October 2016, Plaintiff was removed from his position as CCO of MAL. (PUMF Nos. 54-55.) Plaintiff then became the CCO of MAL/FOR GOOD (“MFG”). (PUMF No.54.) Between 2017 and 2019, Plaintiff stopped receiving bonuses and stock grants. (Milner Cecl., ¶23.) After MFG was absorbed by another subdivision of TBWA in 2018, Plaintiff was given the option of taking a 50% pay cut with additional clients or terminate his employment. (PUMF No. 73.)

TBWA’s alleged adverse actions that fell outside the limitations period consisted of the gradual decreases in Plaintiff’s bonuses between 2014 and 2016 followed by his removal from as CCO of MAL. Plaintiff lost his bonuses and stock grants between 2017 and 2018 before he was finally told to either take a 50% pay cut or terminate his employment. The adverse actions against Plaintiff were similar in kind, consisting of gradual decreases to Plaintiff’s bonuses and stock grants or demotions. Because the changes to Plaintiff’s compensation took place annually, they were reasonably frequent. Finally, the actions had not acquired a degree of permanence because the actions continued until he was terminated in 2019. The adverse actions therefore constitute continuing violations. Because some of the adverse actions took place after August 15, 2018, the continuing adverse actions continued into the limitations period and those that fell outside of the limitations period are not barred.

Here, Plaintiff was 61 at the time this action began. (Compl., ¶10.) Although Defendants argue that Plaintiff’s move from MAL to MFG was not a demotion, Defendants do not dispute that Plaintiff’s removal from MAL and ultimate termination were adverse employment actions. The parties dispute whether Plaintiff was satisfactorily performing his job, whether he was replaced, and whether there was a non-discriminatory basis for the termination.

For the reasons set forth in Plaintiff’s opposition, the motion for summary adjudication is denied on this basis. At a minimum, there is evidence that on October 12, 2016, Ruhanen said that Defendants hiring practices would be very different and that no one over the age of 35 would be hired to create a new and young culture in Defendants’ network. (Notolli Depo, Volume at pages 115 to 117.) There were also continual comments about an emphasis on the digital medium and the need for digital natives.

Plaintiff testified that Michael Claypool made comments about preferring to hire digital natives and that MAL should be digital first. (Milner Depo., 1254:8-20; 1899:14-20.) Additionally, Claypool had authority over hiring and firing in general. (Id. 1924:11-19.)

Claypool’s comments regarding “digital natives” implies that he had a preference for hiring younger employees because the term refers to younger people who grew up with more digital resources. As the managing director of Chiat, the agency that absorbed MFG, it is reasonable to infer that Claypool had at least the power to influence the decision to terminate Plaintiff. Additionally, Ruhanen, the person who made the decision to remove Plaintiff from his role at MAL, stated MAL would only consist of individuals under the age of 35. It is reasonable to infer that Ruhanen intended to remove older employees from MAL. Although the parties dispute who actually made the decision to terminate Plaintiff, it is reasonable to infer that Ruhanen and Claypool both had the power to at least influence the decision to terminate Plaintiff. This is evidence of discriminatory motive because Ruhanen had a motive to remove older employees such as Plaintiff from MAL to ensure MAL consisted only of employees under the age of 35.

Plaintiff argues that the “me too” evidence shows hostility and discriminatory motive. Testimony from other employees that they too were discriminated against may be relevant in a discrimination claim depending on how closely related the evidence is to plaintiff’s circumstances and the theory of the case. (Johnson v. United Cerebral Palsy/Spastic Children's Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 767 (citing Sprint/United Management Co. v. Mendelsohn (2008) 552 U.S. 379, 388.)

Here, Jennifer Nottoli, another former employee of TBWA over the age of 40, left the agency in December 2019 after she heard from client contacts that Erin Riley was making negative comments about her. (Nottoli Depo., 44:9-23.) Nottoli had complained to human resources because talk about youth was becoming more prevalent at TBWA, another employee mentioned wanting to hire younger employees at every age, and she felt insecure about her age. (Nottoli Depo., 67:20-69:7.) After hearing Ruhanen’s comment that he wanted to hire employees below the age of 35, Nottoli believed her job was in jeopardy. (Id., 156:4-25.) These comments made Nottoli feel like she was not wanted and that it was an opportune time to leave TBWA. (Id., 186:1-21.)

In 2018, another employee, Plowman, was terminated for various reasons including that she was ineffective and commuted from another state. (Milner Depo, 1271:8-20; Colon Depo, 277:25-279:3; Clow Depo, 198:10-16; 205:3-14) In January 2019, David Colon also announced that Chiat could not afford the salaries of Jennifer Golub and Alain Briere, both of whom were over the age of 40 and closer to Plaintiff’s age. (Milner Depo. 5, 757:19-759:6, 2613:11-23; Colon Depo., 190:12-191:17.)

The evidence shows a significant number of employees over the age of 40 were terminated reasonably close in time. Although Plowman was terminated a year before Plaintiff, Golub, and Briere, it is still reasonably close in time to Chiat’s absorption of MFG and the other three terminations. Together with the evidence that Ruhanen and Claypool made comments showing they intended to hire only people under the age of 35 and that Defendants did not investigate complaints of age discrimination, the other terminations of older employees shows evidence of pretext sufficient to raise a triable issue of material fact over whether Defendants terminated Plaintiff for a nondiscriminatory reason.

Defendants contend that as a matter of law an associational discrimination claim fails as a matter of law when both parties share the same protected characteristic. In support of this position, Defendants cite to a federal case. However, Defendants provide no California cases indicating that these causes of action are mutually exclusive.

Associational discrimination is typically a cause of action where a non-disabled employee states a FEHA claim on the basis of the employee’s association with an individual who has a disability, although it may be applied to age. (Gov. Code, §§ 12926(o) [“Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status” includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics]; Gov. Code, § 12926, 12940(a).)

The Court extrapolates from associational disability discrimination: “FEHA creates an associational disability discrimination claim in the manner just described—by reading association with a physically disabled person (§ 12926, subd. (o)) into the Act where discrimination based on “physical disability” appears (§ 12940, subd. (a)).” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1039.) “In other words, association with a physically disabled person appears to be itself a disability under FEHA.” (Id. at 1038.)

Accordingly, the Court applies this to an age association discrimination claim. “By express terms, the two pertinent sections of FEHA make it unlawful to “discharge a person from employment” (§ 12940, subd. (a)) based on [age] and other characteristics, which include “a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.” (§ 12926, subd. (o).) (Id.)

Defendants note that Plaintiff’s claim that he experienced discrimination based on his association with Julia Plowman necessarily fails. Plaintiff alleges that he expressed disappointment when Plowman, whom he believed to be over 40, was terminated since he believed that she had done a good job. There is no evidence that Plaintiff’s alleged association with Plowman led to any adverse employment actions against Plaintiff.

Defendants argue that Plaintiff’s cause of action for hostile work environment harassment fails because personnel decisions cannot form the basis of a harassment claim. Additionally, Plaintiff has no evidence to support his allegations that Claypool made ageist comments and that Riley and Thorburn treated younger employees better.

To establish a prima facie case of harassment, an employee must show (1) she was an employee; (2) she was subjected to unwanted harassing conduct based on her protected status; (3) the harassing conduct was severe or pervasive; (4) a reasonable person in the employee's circumstances would have considered the work environment to be hostile or abusive; (5) she considered the work environment to be hostile or abusive; (6) that a supervisor engaged in the conduct and/or the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action; (7) the employee was harmed; and (8) the conduct was a substantial factor in causing the employee's harm. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876)

“Harassment…consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.”(Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65 (bold emphasis added).

Here, Defendants first correctly argue that routine personnel management actions are not actionable harassment. Plaintiff’s FAC alleges that he suffered harassment when Claypool began stating TBWA needed to hire “digital natives” to intentionally harass Plaintiff. (SAC ¶¶41, 44.) Claypool’s comments that TBWA needed to hire digital natives are not personnel decisions. Additionally, as discussed above, Claypool’s comments suggest that TBWA intended to remove older members of staff to allow TBWA to hire only employees under the age of 35. Therefore, it is reasonable to infer that Claypool’s comments were harassing conduct based on Plaintiff’s age.

Defendants also argue that the conduct was not severe or pervasive because it was not directed at Plaintiff but at the agency generally. Defendants cite Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 285, which provides that comments made to a group in general bear less weight than if the comments were directed to an employee themselves. If a plaintiff was not personally subjected to offensive remarks, the plaintiff must meet a higher showing that the harassing conduct permeated the direct work environment. (Id.) Lyle does not completely prohibit harassment claims brought by a plaintiff who did not directly suffer harassing conduct. Rather, there must be a showing that the conduct permeated a plaintiff’s direct working environment. Here, Defendants state in a conclusory statement that Claypool’s comments were not pervasive. There being no evidence of whether Claypool’s comments permeated the workplace, summary adjudication is denied on this ground. The burden does not move to Plaintiff.

Plaintiff in opposition also addresses other conduct which he argues is harassment and do not encompass personnel decisions, including Ruhanen’s comments about age and Garbutt’s exclusion of Plaintiff from award shows and conferences. Defendants do not address this conduct. For the same reasons as Claypool’s comments, Ruhanen’s comments about age sufficiently constitute harassing conduct related to Plaintiff’s age.

The fifth cause of action is for failure to provide an environment free from discrimination and retaliation under Government Code section 12940. (Gov’t Code, § 12940, subd. (k).) “An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination: ‘Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.’” (Scotch v. Art Inst. of California (2019) 173 Cal.App.4th 986, 1021.)

To establish a prima facie case of retaliation under FEHA, Government Code section 12940(h), Plaintiff must prove that “(1) [s]he 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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)¿

To establish a prima facie case of retaliation under Labor Code section 1102.5, “a plaintiff must show that (1) he engaged in a protected activity, (2) his employer subjected him to an adverse employment action, and (3) there is a causal connection between the two.” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)¿¿

Specifically, Labor Code, section 12940(h) makes it an unlawful employment practice ‘[f]or any employer ... to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’” (Yanowitz, 36 Cal.4th at 1042 [italics original].) An employee engages in a protected activity “‘when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA.’” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 381.)¿

To state a claim for retaliation under Section 1102.5 Plaintiff must “demonstrate by a preponderance of the evidence that the employee’s protected whistleblowing was a contributing fact to an adverse employment action.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712 [internal quotations omitted]; see also Lab. Code, section 1102.6.)

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 the employee or applicant engaged in any conduct delineated in this chapter. . ., or because the employee . . . made a written or oral complaint that he or she is owed unpaid wages, . . . or 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.

Here, Defendants’ evidence shows that Plaintiff sent an email to Ruhanen complaining that Defendants were withholding compensation due to him. (UMF No. 128.) Additionally, Plaintiff made a complaint to Clow stating that he believed Julia Plowman’s termination was illegal. (UMF No. 129.) Plaintiff complained to Clark that his termination was beginning to look and smell like age discrimination. (UMF No. 131.)

Defendants argue that Plaintiff’s wrongful termination claim fails as a matter of law because it is derivative of Plaintiff’s claims for discrimination, retaliation, and harassment. Because summary adjudication was denied with respect to some of those claims, summary adjudication is denied with respect to the claim for wrongful termination.

Defendants argue that Plaintiff’s breach of contract claims fail because Defendants did not breach Plaintiff’s employment contract by failing to terminate him for good cause. Plaintiff’s employment contract had no provision that stated his employment could only be terminated for cause.

The elements of a claim for breach of contract are: “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821.)

Defendants cite Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384 in support of their argument. The court in Dore ruled that the presumption of at-will employment codified in section 2922 of the Labor Code can be overcome by an express or implied agreement to the contrary. However, where an express written contract controls, it “cannot be overcome by evidence of a prior or contemporaneous implied-in-fact contract requiring good cause for termination.” (Id. at 389.)

Here, Plaintiff’s November 2002 employment contract states “Nothing in this offer letter creates a contract of employment for any definite period of time. Although we look forward to a mutually rewarding relationship, your employment may be terminated by you or the Agency at any time and for any or no reason whatsoever. You acknowledge that you have not relied upon any oral representations or any other representation other than those explicitly stated in this offer letter.” (Defendant’s Exh. 15.)

Additionally, Defendants provide Plaintiff’s acknowledgments of receipt of the employee handbook signed in June 2017 and January 2018, which state “I have entered into my employment relationship with the Agency voluntarily and acknowledge that there is no specified length of employment. I understand that my employment is at will, meaning that I may terminate my employment with Agency with or without cause or notice, and that the Agency may terminate or change the terms of my employment…with or without notice. I understand that only the President of the Agency has the authority to enter into an agreement for employment for a specified term or to make any agreement contrary to the policy of at-will employment, and that any such agreement must be explicit, in writing, and must be signed by the President of the Agency.”(Page 1323 and 1324 of Defendant’s Exhibits, Exhs. 16 and 17 to 3/9/21 Milner Deposition.)

Defendants’ evidence shows that Plaintiff’s employment was at will because the operative employment contract specified employment was at will and had no set term. The evidence also demonstrates that Plaintiff repeatedly continued to agree that his employment was at will.

He further argues that he weas informed by Defendants’ HR Global Director, Karine Shahar and HR Manager Jacqulyn Pollock that employees can be terminated for good cause. Plaintiff further argues that at some point after 2017 Plowman and Thorburn told him that a particular employee could be fired because there was good cause.

The statements to which Plaintiff cites are in reference to other employees and not himself. Plaintiff was at a high executive level and was not in the same category as most other employees. There is no basis on which to conclude that these generic statements formed an oral contact between Plaintiff and Defendants.

With respect to an implied in fact contract, “conduct will create a contract if the conduct of both parties is intentional and each knows, or has reason to know, that the other party will interpret the conduct as an agreement to enter into the contract.” (CACI No. 305.)

Plaintiff’s cites Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 in support of his contention that summary adjudication should be denied. However, Foley noted the power of the parties to reach an agreement regarding the terms of employment and does not address the situation where, as here, there are multiple written acknowledgments that the employment is at will. Here, the intent of the parties is clear.

Defendants argue that Plaintiff’s cause of action for breach of the implied covenant of good faith and fair dealing fails because Plaintiff’s cause of action for breach of contract fails. Additionally, Plaintiff’s claim with respect to the alleged five-year compensation plan fails because it is time barred.

The elements for breach of the implied covenant of good faith and fair dealing are: (1) existence of a contract between plaintiff and defendant; (2) plaintiff performed his contractual obligations or was excused from performing them; (3) the conditions requiring defendant’s performance had occurred; (4) the defendant unfairly interfered with the plaintiff’s right to receive the benefits of the contract; and (5) the plaintiff was harmed by the defendant’s conduct. (Merced Irr. Dist. V. County of Mariposa (E.D. Cal. 2013) 941 F.Supp.2d 1237, 1280 (discussing California law).) Allegations must demonstrate defendant’s conduct for failure or refusal to discharge contractual responsibilities was a conscious and deliberate act, not an honest mistake, bad judgment or negligence. (Id.) “‘[T]he implied covenant of good faith and fair dealing is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract.’” (Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 206 (quoting Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1094).)

Here, because summary adjudication was granted as to the seventh and eight causes of action for breach of contract, summary adjudication is granted with respect to Plaintiff’s claims for breach of implied and express oral contract not to terminate employment without good cause.

With respect to Plaintiff’s claim about the alleged five-year compensation plan, Plaintiff alleges that in 2015, he sent an email to Ruhanen complaining that Defendants were withholding compensation due to him because his bonuses and stock were guaranteed pursuant to a five-year plan he agreed to with Defendants which promised $100,000 raises each year and stock incentives which would vest over five years. (PUMF No. 14.)

even if there was a contract, this cause of action is time barred because more than two years have passed between 2015 when Plaintiff made his complaint to Ruhanen and the filing of this lawsuit. Defendants meet their burden of showing no triable issue of material fact remains over whether this cause of action is time barred.

Moreover, the Court further notes that the SAC does not allege the existence of a contract for a five year compensation plan. The allegations in the complaint frame a motion for summary judgment and the case. The alleged five-year compensation plan is not there.

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, section 3294, subd. (a).)

“Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code, section 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

Defendants argue that Plaintiff’s claim for punitive damages fails because there is no evidence of any despicable conduct or malice by any officer, director, or managing agent in the decisions made about Plaintiff. However, as discussed above, Plaintiff’s evidence shows that comments made by Ruhanen and Claypool, both officers or managing agents of TBWA, evidenced Defendants’ intent to terminate older employees in favor of younger employees. Such conduct demonstrates a conscious disregard for Plaintiff’s rights and rises to the level of despicable which would be looked down upon and despised by ordinary people.