Judge: John C. Gastelum, Case: 21-01203250, Date: 2023-05-24 Tentative Ruling
Motion for Summary Judgment and/or SAI
Tentative Ruling: Defendant TRADER JOE’S COMPANY moves this Court for an order entering Summary Judgment, in or the Alternative, Summary Adjudication of Issues in Defendant’s favor. Alternatively, and only if the Court finds that summary judgment may not be entered, Defendant moves for an order granting summary adjudication in favor of Defendant and against Plaintiff Brenda Titus (“Plaintiff”), as to four (4) issues.
The Court rules as follows:
Issue No. 1: Plaintiff’s cause of action for retaliation in violation of the California Fair Employment and Housing Act (“FEHA”) fails as a matter of law because Plaintiff did not engage in any protected activity, and there is no causal link between any protected activity by Plaintiff and Plaintiff’s termination, Defendant had legitimate, non-discriminatory reasons for any alleged adverse employment actions, and such reasons were not pretextual.
Government Code section 12940(h) makes it unlawful, “For any employer, labor organization, employment agency, or person 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.” Plaintiff’s 1st COA is brought pursuant to section 12940(h). (See Complaint¶10.)
To establish a prima facie case of retaliation under the 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. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [32 Cal.Rptr.3d 436, 444.)
Notably, “Actions for retaliation are ‘inherently fact-driven’; it is the jury, not the court, that is charged with determining the facts.” (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 299.)
[U]nder certain circumstances, a retaliation claim may be brought by an employee who has complained of or opposed conduct, even when a court or jury subsequently determines the conduct actually was not prohibited by the FEHA. Indeed, this precept is well settled. An employee is protected against retaliation if the employee reasonably and in good faith believed that what he or she was opposing constituted unlawful employer conduct such as sexual harassment or sexual discrimination.” (Miller v. Department of Corr. (2005) 36 Cal.4th 446, 473–474, internal citations omitted.)
It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043.)
Here, Defendant argues Plaintiff cannot establish a prima facie case because Plaintiff cannot establish elements 1 and 3.
Engaged in Protected Activity
Both parties cite to Rope v. Auto-Chlor System of Washington, Inc., 220 Cal.App.4th 635, 652 (2013) for the framework as to what constitutes protected activity. In that case, the Court explains:
Clearly, section 12940, subdivision (h) encompasses a broad range of protected activity. An employee need not use specific legal terms or buzzwords in opposing discrimination. Nor is it necessary for an employee to file a formal charge. The protected activity element may be established by evidence that the plaintiff threatened to file a discrimination charge, by a showing that the plaintiff mistakenly, but reasonably and sincerely believed he was opposing discrimination, or by evidence an employer believed the plaintiff was a potential witness in another employee's FEHA action.
(Emphasis added.)
(Rope v. Auto-Chlor System of Washington, Inc., 220 Cal.App.4th 635, 652 (2013).)
Here, it is undisputed that on August 18, 2020, Plaintiff left a voicemail for Nicole High, Customer Relations Communication Manager. (See UMF No. 17. Note: although Defendant cites the location of the voicemail to be Exhibit E to Kibbe Decl, nothing is attached as Ex. E. However, Plaintiff has attached an apparent transcript of the voicemail to her Declaration as Ex. E.) This voicemail constitutes the complaint and allegedly protected activity. (See for example, Complaint ¶¶6, 12.)
Therein, Plaintiff stated, among other things:
“I’ve read a bulletin about the changes or things that the company is doing for the Black Lives, and um – the money, the student loans, stuff like that.”
“…we have two crewmembers that received the bonus in our store – both of them are of color.
“… and having this race of people being treated special and giving special money set aside? That’s just not right. That is not right.”
(Emphasis added, Decl. of Plaintiff Titus¶15, Ex. E.)
Here, a jury could find that in leaving this voicemail at Trader Joe’s Corporate office, Plaintiff reasonably and sincerely believed she was opposing discrimination.
Indeed, she declares, “I was letting Trader Joe’s know in my August 18, 2020 voicemail that I agreed with some of the steps that were taken in support of people of color, while opposing the practices that exclusively favored one race over others.” (Dec. of Titus¶18.)
It would seem whether it was reasonable or unreasonable for Plaintiff to believe that “the money, the student loans, stuff like that” being allegedly provided to Black employees was discriminatory towards non-Black employees should also be determined by a jury (irrespective of whether diversity initiatives/affirmative action are legal or not.)
As such, it appears there is a triable issue of material fact as to whether Plaintiff engaged in protected activity in making a complaint to Trader Joe’s Corporate office.
Causal Link
The
retaliatory motive is “proved by showing that plaintiff engaged in protected
activities, that his employer was aware of the protected activities, and that
the adverse action followed within a relatively short time thereafter.” (Jones v. Lyng (D.D.C. 1986) 669
F.Supp. 1108, 1121.) “The causal link may be established by an inference
derived from circumstantial evidence, 'such as the employer's knowledge that
the [employee] engaged in protected activities and the proximity in time
between the protected action and allegedly retaliatory employment decision.”'
(Jordan v. Clark
(9th Cir. 1988) 847 F.2d 1368, 1376.)
(Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.)
Here, Plaintiff left the voicemail on August 18, 2020. (Decl. of Titus¶15.). Thereafter, she was terminated on August 24, 2020. (Id.¶19.) The Termination Letter states:
Brenda, we have an open door policy to ensure crew members know that there are always avenues to discuss issues related to their job. As is stated in the policy, you are encouraged to first discuss issues with your immediate supervisor. The handbook further states that if you believe a matter has not been sufficiently addressed by your Captain, you may contact your Regional or call Human Resources. In the last few months, you've emailed Jon Basalone and left a message for customer relations without first addressing issues with your Captain. The first step is to speak with your Captain. It is a matter of integrity and respect to first communicate with your supervisor. (I'm sure if you were in a leadership role, you would want the opportunity to address issues.) Further, in your most recent voicemail, you criticized the company for offering scholarships to African American/Black crew members. Specifically, you told us to "Quit bowing down. This is ridiculous and embarrassing* in reference to the scholarship. We understand that you disagree. Based on your disdain for our position, we are no longer comfortable having you in our employ.
(Emphasis added.) (Decl. of Mead, Ex. H.)
The timing of the termination and the precise language of the termination letter establish the causal link between the complaint/voicemail and the adverse employment action.
Pretext
Evidence showing facts inconsistent with the employer's claimed reasons tends to prove the employer's discriminatory intent. (See Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.)
“Pretext” does not require proof that discrimination was the only reason for the employer's action. When there are mixed motives for the employer's action, it is enough that discriminatory intent was a substantial motivating factor in the employer's decision to take the adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.)
Here, Trader Joe’s argues it has indisputable evidence that Plaintiff violated its open-door policy regarding reporting concerns and making complaints multiple times in short order, and as a result, Plaintiff’s employment was terminated.
However, as established in the Termination letter, allegedly violating the open-door policy was not the only reason for the termination, but rather, the fact that Plaintiff left the voicemail and Plaintiff’s views expressed therein.
Furthermore, Defendant fails to adequately explain or provide evidence of the actual “open-door policy” to which Plaintiff allegedly violated. Plaintiff refers to it in PUF No. 69, and it appears to be attached to the Declaration of Gavriliuc Ex. 5. Therein, the open door policy encourages employees to discuss any problems with “your immediate supervisor”, and if you believe that matter has not been sufficiently addressed by your Captain, “your Regional or call Human Resources”.
Plaintiff declares, “In or around July 2020, I told the manager, Johnny, the concerns I and the other minority crew members had expressed regarding the policies giving special bonuses only to Black crew members. Nothing was done to address my concerns or the concerns of the other employees.” (Decl. of Titus¶14). Thereafter, she called Corporate Office and was transferred to HR, etc. Arguably, she did not violate the open door policy.
Finally, the Open Door policy indicates that investigation will occur and interviews, including the complaining employee. (Decl. of Gavriliuc, Ex. 5). However, it does not appear any investigation took place prior to Plaintiff’s termination, which could suffice as evidence of pretext. (PUF 55.)
For all the above reasons, Motion is DENIED as to ISSUE 1.
Issue No. 2: Plaintiff’s cause of action for failure to prevent discrimination, harassment, and retaliation in violation of FEHA fails as a matter of law because Plaintiff’s underlying cause of action for retaliation fails as a matter of law, and because Defendant took appropriate steps to prevent retaliation from occurring.
Government
Code section 12940(k) provides it is an unlawful employment practice, “For an
employer, labor organization, employment agency, apprenticeship training
program, or any training program leading to employment, to fail to take all
reasonable steps necessary to prevent discrimination and harassment from
occurring.” [Emphasis added]
The 2nd cause of action is entitled “Failure to Prevent Discrimination - Gov’t Code § 12940(k)”. Within the cause of action, Plaintiff pleads:
21. Defendants failed to take all reasonable steps necessary to prevent discrimination and harassment in that the employer failed to comply with Department of Fair Employment and Housing laws and regulations, failed to offer discrimination and harassment training, failed to maintain an effective complaint procedure, failed to adequately educate managers about discrimination and harassment and failed to educate managers regarding proper responses to complaints. Defendants also failed to take all reasonable steps to prevent harassment and discrimination by not taking adequate remedial action after becoming aware of ongoing discrimination and harassment.
Therefore, the cause of action does not appear to be about a failure to prevent retaliation at all, but a failure to prevent harassment and discrimination.
Confusingly, Plaintiff states, “Plaintiff did not sue for discrimination.” (Opp page 1:3). She also argues, “PLAINTIFF HAS DIRECT EVIDENCE OF DEFENDANT’S FAILURE TO PREVENT RETALIATION” (Opp. page 18:24-25).
While it appears failure to prevent retaliation is a cause of action. (“…we conclude that retaliation is a form of discrimination actionable under section 12940, subdivision (k).” Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1240 [51 Cal.Rptr.3d 206, 223] disapproved of by Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 [72 Cal.Rptr.3d 624, 177 P.3d 232]) it is not clear Plaintiff has actually pled failure to prevent retaliation.
To the extent both parties appear to waive the defect and agree this is a failure to prevent retaliation cause of action, it appears based on the reasoning above, there are triable issues of material fact as to whether Defendant failed to prevent retaliation.
Additionally, Plaintiff presents evidence that the Vice President of Human Resources for Trader Joe’s on a national level, who has been with Trader Joe’s for 19 years, does not recollect a single other instance where an employee was terminated for disagreeing with one of Trader Joe’s policies. (Gavriliuc Decl. ¶ 4, Exhibit 2, PMK Depo 11:10-15; 63:17-20). A jury could find that there was failure to prevent retaliation in this instance.
Therefore, Motion is DENIED as to Issue No. 2.
Issue No. 3: Plaintiff’s cause of action for wrongful termination in violation of public policy fails as a matter of law because Plaintiff’s underlying FEHA and Labor Code claims fail as a matter of law.
Defendant argues that because Plaintiff’s other FEHA claims fail, this cause of action fails too. Defendant cites to Featherstone v. Southern California Permanente Medical Group, 10 Cal.App.5th 1150, 1169 (2017) in support of its argument that if an employer did not violate FEHA, the employee’s claim for wrongful termination in violation of public policy necessarily fails.
Based on Defendant’s argument, the motion is DENIED as to Issue 3.
Issue No. 4: Plaintiff’s claim for punitive damages fails because the undisputed material facts negate any credible finding of inference that Defendant acted with malice, oppression or fraud within the meaning of California Code section 3294, and also for the reason that none of the alleged conduct was by a managing agent of Defendant.
Defendant argues there is no evidence that any corporate officer, director or managing agent of Trader Joe’s acted with any oppression, fraud, or malice. It is Christy Hughes, Trader Joe’s Regional Vice President, not a corporate officer, director, or managing agent who made the decision to terminate Plaintiff. (Civ. Code§3294; UMF No. 88)
Civil
Code section 3294(b) provides, in relevant part, “With respect to a corporate
employer, the advance knowledge and conscious disregard, authorization,
ratification or act of oppression, fraud, or malice must be on the part of an
officer, director, or managing agent of the corporation.”
Plaintiff argues, the decision to terminate Plaintiff was made by the “operations group”, consisting of Christy Hughes and the President of Stores, Jon Basalone. (Gavriliuc Decl. ¶ 4, EXHIBIT 2, PMK Depo 77:6-78:4.) Jon Basalone was provided three options as to how to handle the situation, and it appears the operations group opted for terminating Plaintiff’s employment. (See, Gavriliuc Decl. ¶¶ 4 &11, EXHIBIT 2 & 9, PMK Depo at 111:2-112:5; 113:9-20) Jon Basalone could be considered an officer or managing agent of the corporation who ratified the decision to terminate Plaintiff. Indeed, after hearing the Plaintiff’s voicemail, via email, he stated, “she’s giving all of us from Orange County a bad reputation. Uh, I really don’t think she should be working for us.” (PUF 44).
Defendant next argues that Plaintiff cannot establish that Trader Joe’s engaged in unlawful conduct or acted with intent to injure her or with conscious disregard for her rights. Plaintiff argues that the facts herein constitute malice because defendant intentionally meant to terminate plaintiff because of her protected complaint, and did so on her 14th year anniversary.
Neither side points to any cases where punitive damages were awarded to an employee for retaliation by the employer.
All in all, the Court determine this issue should be determined by a jury.
Motion is DENIED as to Issue 4.
Court opts not to rule on Plaintiff’s evidentiary objections as they are not properly formatted.
Defendant’s Objections:
ROA 94: 1-2. Overrule
ROA 95: 1-3. Overrule
4-6. Sustain
7-12. Overrule
13. -15. Sustain
16. Overrule
17. Sustain
Declaration of Michael L. Kibbe submitted with the Reply was not considered. (ROA 96)
Plaintiff to give notice.
