Judge Randolph M. Hammock, Case 20STCV29879 2022-10-25 Tentative Ruling

This is an employment dispute. Plaintiff Arturo Lindo (“Lindo”) brings two causes of action against Defendant Harbor Developmental Disabilities Foundation (dba Harbor Regional) (“Harbor Regional”) for (1) violation of California Labor Code section 98.6 and 1102.5, and (2) wrongful termination in violation of public policy.

Plaintiff worked for Defendant as a Service Coordinator. During a meeting with his supervisor, Plaintiff alleges he expressed concern that Defendant was recommending a particular group home to its disabled female clients. Plaintiff believed the group home was dangerous as the home was being investigated for sexual abuse. Two days later, Defendant terminated Plaintiff, falsely accusing him of moonlighting for another employer. Plaintiff contends that Defendant’s reason for termination is false and/or pretext, and in reality, that Defendant terminated Plaintiff’s employment in retaliation for his whistleblower activities.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389. A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action. Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858. Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. § 437c(o)(2).

As framed by the pleading, Plaintiff Lindo worked for Defendant for almost 11 years as a Service Coordinator before his termination on August 23, 2018. (Compl. ¶¶ 7, 8, 10.) In this role, Plaintiff “worked with disabled individuals to ensure they received services they were entitled to receive under California law.” (Id. at ¶ 8.)

Two days before his termination, Plaintiff met with his supervisor. (Id. at ¶ 10.) During the meeting, Plaintiff expressed concern that Defendant was recommending a particular group home to a disabled female client. (Id.) Plaintiff believed the group home was dangerous because the home was being investigated by police and the California Department of Developmental Services for sexual abuse involving a disabled client. Plaintiff “reasonably believed” that Defendant’s recommendation of clients to the group home “violated California Welfare and Institution Code Section 4647 and other local and state laws, rules and regulations.” (Id.) A day after the meeting, the parents of a client complained to Defendant about recommending their child to the group home. (Id.)

Two days after the meeting, Defendant terminated Plaintiff, falsely accusing him of moonlighting for another employer. (Id.) Plaintiff contends that Defendant’s reason for termination is false and/or pretext, and in reality, that Defendant terminated Plaintiff’s employment in retaliation for his whistleblower activities. (Id. at ¶ 11.)

In the First Cause of Action, Plaintiff first alleges that his termination violated California Labor Code section 1102.5(b), which prohibits an employer from retaliating against an employee for disclosing or threatening to disclose the violation of state or federal law to a government or law enforcement agency or person with authority to investigate the violation. (Id. at ¶ 12-20.)

Also in the First Cause of Action, Plaintiff alleges that Defendant violated Labor Code section 98.6, which prohibits an employer from retaliating against an employee who engaged in protected conduct delineated in certain sections of the Labor Code, including section 1102.5(b). (Id. at ¶¶ 21-25.) Plaintiff seeks reinstatement, reimbursement for lost wages, and civil penalties under section 98.6. (Id. at ¶¶ 24, 25.)

Defendant moves for summary adjudication of the First Cause of Action. Labor Code section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities. It 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. (§ 1102.5, subd. (b).) “This provision,” the Supreme Court of California has explained, “reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.)

A claim for violation of Labor Code section 1102.5 requires “(1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation. [Citations.] To establish the first element, the plaintiff must show (1) the plaintiff engaged in protected activity, (2) the defendant subjected the plaintiff to an adverse employment action, and (3) there is a causal link between the two.” (Ross v. Cnty. of Riverside (2019) 36 Cal. App. 5th 580, 591–92.)

The state Supreme Court recently clarified that section 1102.6, and not the McDonnell Douglas burden-shifting framework, supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal. 5th 703, 712.) “By its terms, section 1102.6 describes the applicable substantive standards and burdens of proof for both parties in a section 1102.5 retaliation case: First, it must be ‘demonstrated by a preponderance of the evidence’ that the employee's protected whistleblowing was a ‘contributing factor’ to an adverse employment action. (§ 1102.6.) Then, once the employee has made that necessary threshold showing, the employer bears ‘the burden of proof to demonstrate by clear and convincing evidence’ that the alleged adverse employment action would have occurred ‘for legitimate, independent reasons’ even if the employee had not engaged in protected whistleblowing activities.” (Id.) This framework applies at the summary judgment stage and at trial. (Id. at 717-18.) “Section 1102.6 requires whistleblower plaintiffs to show that retaliation was a ‘contributing factor’ in their termination, demotion, or other adverse action. This means plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action.” (Id. at 713-14.)

First, Defendant argues that Plaintiff did not engage in protected activity. The crux of Plaintiff’s alleged protected activity is that he disclosed to supervisor Mink in the August 21, 2018, meeting that he believed Defendant was violating California Welfare and Institution Code Section 4647 and other laws by considering L.Z. for placement at Aacres—an environment Plaintiff believed was unsafe based on allegations of sexual abuse. Plaintiff contends this “whistleblowing” resulted in his termination two days later.

Defendant contends, however, that Plaintiff did not engage in any protected whistleblowing activity. As of August 15, 2018, Harbor’s client L.Z. was placed in a living facility, and it was anticipated that she would be transferred to a different facility, Aacres, a few days later. (SSUMF 7.) On August 17, 2018, Plaintiff received correspondence from Aacres’ Director, Brian Lockhart, who reported to Plaintiff that DDS had asked Aacres to put a hold on any placements until further notice. As a result, Aacres was unable to provide services to L.Z. (SSUMF 8.)

Later, on August 17, Plaintiff consulted with Ms. Mink to inform her that Aacres would not be accepting L.Z. for placement. (SSUMF 9.) At that time, it was determined between Plaintiff and Ms. Mink that Plaintiff would follow up with Harbor’s Living Options Department to further discuss alternate living arrangements for L.Z. (SSUMF 10.) Later that day, Plaintiff contacted L.Z.’s parent and discussed the DDS’ request that Aacres hold on placements and Aacres’ inability to provide services to L.Z. as had been anticipated. (SSUMF 11.) As a result, L.Z. remained in her placement with Alliance. (SSUMF 12.)

Thus, under Defendant’s version of events, Plaintiff simply advised Mink that Aacres would not be accepting L.Z. as previously planned, and that Defendant needed to find L.Z. a replacement site. Moreover, based on the DDS moratorium at Aacres, there was no possibility that L.Z. could be sent there. Essentially, because of the DDS moratorium at Aacres—of which Plaintiff was well aware—Defendant could not violate Welfare and Institutions Code § 4647 even if it wanted to. The entire topic of the meeting was Plaintiff relaying these facts to Mink. Accordingly, Defendant argues, “Plaintiff cannot establish that he made any disclosure of conduct he reasonably believed to be unlawful.” (Mtn. 9: 4-5.) Defendant has therefore met its burden to show that Plaintiff did not engage in any protected whistleblowing activity.

Plaintiff’s evidence tells the story slightly differently. Around July 25, 2018, Defendant suggested Aacres as a placement for L.Z. Plaintiff contends that when Defendant suggested Aacres for L.Z., Defendant was already on notice that Aacres was being investigated for numerous reports of abuse. (SSDMF 8.) Despite this knowledge, at meetings on August 6th, 9th, and 13th, Defendant failed to inform Plaintiff that Aacres was under investigation for abuse. (Id.) On August 13, 2018, Defendant received additional confirmation from the DDS regarding the allegations of abuse at Aacres by email. DDS stated that it had been working with Defendant among others “to address significant issues affecting the health and safety of individuals residing in the Aacres homes.” Additionally, the DDS stated that “[d]ue to repeated serious incidents that compromise the health and safety of individuals, effective immediately, DDS is placing a moratorium on all transitions into Aacres homes.” (Id.)

On August 15, 2018, Plaintiff received information that Aacres simply needed to delay L.Z.’s placement one week to perform “additional assessments.” Plaintiff confirmed the alleged delayed placement to both Aacres and Harbor. Following this confirmation, Harbor did not inform Plaintiff that the DDS had actually placed an indefinite moratorium on all placements rather than L.Z. requiring additional assessments. (Id.) Plaintiff was informed of the placement moratorium at Aacres on August 17, 2018. However, Plaintiff was not informed of the cause of the moratorium. (Id.)

After discovering the abuse allegations at Aacres, Plaintiff provided this information to L.Z.’s parent as Plaintiff believed it was a violation of his and Defendant’s duties pursuant to the Lanterman Act to withhold this information. On August 21, 2018, Plaintiff met with supervisor Mink. During this meeting, Plaintiff reported to Mink that he had informed L.Z.’s parent of the allegations of abuse that had been withheld. (Id.)

Thus, under Plaintiff’s version of events, even if there was a temporary hold on placements to Aacres, Defendant still violated section 4647 by not disclosing the abuse allegations to L.Z.’s parents, and for apparently leaving the option open that L.Z. could be placed at Aacres after the moratorium was lifted.

Based on the conflicting testimony of what occurred at the meeting between Plaintiff and his supervisor—as well as what Defendant knew about the investigation at Aacres—Plaintiff has established a triable issue of material disputed fact as to whether he engaged in a protected “whistleblowing” activity.

Defendant next argues that even if Plaintiff had engaged in protected activity, it still had legitimate means for terminating Plaintiff’s employment. Defendant represents that on August 14, 2018, Tammy Carter sent an email to all Harbor employees advising that any employee engaging in outside employment must notify the Office of Human Resources of said employment. (SSUMF 14.) Either later that day or the next, Ms. Carter received “an anonymous typed letter” in an unmarked interoffice envelope stating: “Arturo Lindo works as IHSS caregiver during working hours in San Pedro.” (SSUMF 15.)

Ms. Carter notified Ms. Perez of the anonymous letter. (SSUMF 16.) She then directed Ms. Mink to conduct a random record review of Plaintiff’s case management records. (SSUMF 17.) As part of her investigation, Ms. Mink reviewed random entries on Plaintiff’s Outlook calendar, client notes in Virtual Chart (Harbor’s client management software), and Plaintiff’s mileage claim records. She spoke to Harbor’s providers and clients to verify whether Plaintiff’s client activity records were accurate. (SSUMF 18.) Ms. Mink created an Excel spreadsheet of her findings, which reflected that in at least two instances between May 2018 and mid-August 2018, Plaintiff documented that he had held meetings. However, the individuals he claimed to have met with reported to Ms. Mink that the meetings had not occurred. (SSUMF 19.)

Based on these findings, Mink determined that Plaintiff falsely documented Harbor case management activity. (SSUMF 21.) Thus, Defendant contends, Plaintiff’s termination “had nothing to do with his supposed whistleblowing, but rather was based solely on Harbor’s discovery that he had falsified documents.” (Mtn. 9: 16-18.) Based on the above, Defendant has met its burden to show a nonretaliatory, legitimate reason for termination.

In opposition, Plaintiff contends the investigation into his outside employment was a pretext for his termination. Plaintiff first notes the temporal proximity of his whistleblowing and resulting termination, which occurred approximately two days apart. He also disputes that any thorough investigation occurred. He argues the investigation into Plaintiff’s wrongdoing occurred “over the course of a few days” and “failed to include any communication with Plaintiff” or the “opportunity for Plaintiff to provide any insight into any perceived false case management activity.” (Opp. 16: 4-9.)

Plaintiff also questions Defendant’s purported reliance on the anonymous letter that “is undated, unsigned, and has no markings that would allow the parties to determine [its] authenticity.” (Opp. 13: 8-9.) He contends this this letter “could have been created at any time, even after Plaintiff engaged in protected activity.” (Id., 12-14.) Plaintiff argues the same is true of the spreadsheet compiled by supervisor Mink during her investigation, which is “undated and provides no markings to establish that the document was created at any specific time.” (Id., 15-18.) Finally, the only date-stamped document is an email in which Mink discusses that Plaintiff will be terminated the following day. This email is dated August 22, 2018 – the day after Plaintiff engaged in protected activity. It states her desire to keep the termination meeting “short and to the point” and to deny Plaintiff “an opportunity to ask questions.” (Plaintiff’s Exh. B.)

Plaintiff, therefore, has also met his burden to establish a triable issue of material fact. If credited by a trier of fact, the evidence shows Ross engaged in protected activity because he disclosed information to his supervisor which he reasonably believed disclosed a violation of state law. Thus, a reasonable jury could find, by a preponderance of the evidence, that Plaintiff’s whistleblowing was a “contributing factor” in his termination.

Moreover, there is a triable dispute of material fact as to whether Plaintiff’s termination would have occurred “for legitimate, independent reasons” even if the employee had not engaged in protected whistleblowing activities. (See Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479 [“Pretext may ... be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination.”].)

Turning to the next claim making up part of the First Cause of Action, Labor Code section 98.6 prohibits an employer from retaliating against an employee because the employee exercised a right afforded him under the Labor Code. (Garcia-Brower v. Premier Automotive Imports of CA, LLC (2020) 55 Cal.App.5th 961, 972; Section 98.6). To establish a prima facie violation of Section 98.6, the plaintiff is required to demonstrate that he engaged in protected activity, that the employer subjected him to an adverse employment action, and that the protected activity substantially motivated the employer’s adverse employment action. (Garcia-Brower, supra, 55 Cal.App.5th at 977.)

In support of its motion for summary judgment, Defendant first argues that Plaintiff cannot establish a violation of section 1102.5, and that the claim for wrongful termination—which is based on violation of this code section—fails on this ground. As discussed above, however, the section 1102.5 claim survives.

Defendant then argues that Plaintiff cannot meet his burden under the McDonnell Douglas burden shifting test. When a plaintiff alleges retaliatory employment termination as a claim for wrongful employment termination in violation of public policy, and the defendant seeks summary judgment, California follows the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 to determine whether there are triable issues of fact for resolution by a jury. It works as follows:

In the first stage, the 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. If the employee successfully establishes these elements and thereby shows a prima facie case exists, the burden shifts to the employer to provide evidence that there was a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces evidence showing a legitimate reason for the adverse employment action, the presumption of retaliation “drops out of the picture,” and the burden shifts back to the employee to provide “substantial responsive evidence” that the employer's proffered reasons were untrue or pretextual.

As discussed more fully above and as framed by the pleading, Plaintiff has alleged that he engaged in a protected whistleblowing activity, that his employment was terminated, and that there was a causal link between the two. Plaintiff has provided evidentiary support for these claims.

Shifting the burden to Plaintiff, he has presented evidence that Defendant’s proffered reason for his termination was pretextual. This evidence includes the temporal proximity of his whistleblowing and resulting termination, which occurred approximately two days apart; Defendant’s purported reliance on an anonymous letter to trigger the investigation; Plaintiff’s lack of any involvement in the investigation or the opportunity to explain his conduct; and Plaintiff’s otherwise clean eleven-year employment record.

Thus, by construing Plaintiff’s evidence liberally and resolving all evidentiary doubts in his favor, this court concludes that Plaintiff has carried his burden to demonstrate a dispute of triable material fact. (Foroudi, 57 Cal. App. 5th at 1007.) This court in no way attempts to second-guess the Defendant’s routine management of its employees, and it is not this court’s role to decide if Defendant’s decisions were “wrong, mistaken, or unwise.” (Horn v. Cushman & Wakefield Western (1999) 72 Cal.App.4th 798, 807 [internal quotations omitted.].) But what it must do is identify “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reason able factfinder could rationally find them unworthy of credence.” (Id.) This court concludes that such factors exist here, sufficient enough to survive a summary adjudication.