Judge: Stephen I. Goorvitch, Case: 20STCV34866, Date: 2022-07-27 Tentative Ruling

Case Number: 20STCV34866    Hearing Date: July 27, 2022    Dept: 39

Ricardo Guerra v. Sunbelt Rental, Inc.

Case No. 20STCV34866

Motion for Summary Judgment

BACKGROUND

            Plaintiff Ricardo Guerra (“Plaintiff”) filed this wrongful termination action against Sunbelt Rental, Inc. (“Defendant”).  Plaintiff asserts a single cause of action for wrongful termination under Labor Code section 1102.5.  Plaintiff, a truck driver, alleges that he complained to his supervisors about working “off the clock” and about unsafe working conditions, following which he was terminated.  Defendant moves for summary judgment, which Plaintiff opposes.  The motion is granted.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

EVIDENTIARY ISSUES

            The Court overrules Plaintiff’s evidentiary objections.  The Court sustains Defendant’s objections to Plaintiff’s declaration except as otherwise referenced in this order.  The Court sustains Defendant’s objections to the declaration of Alex Perez except as otherwise referenced in this order. 

DISCUSSION

            To prevail on a claim for retaliation, Plaintiff must establish “by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action.  . . .  Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.”  (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.)  In moving for summary judgment on Plaintiff’s claim for retaliation, Defendant satisfies its burden with evidence that Defendant had a legitimate reason to terminate Plaintiff’s employment.  (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-98.) 

            Defendant relies on the following evidence:

-          On or about March 24, 2017, Plaintiff received a written disciplinary warning for failing to retrieve three pieces of equipment required for an upcoming customer order without informing anyone that the equipment had not been retrieved.  (See Defendant’s Separate Statement ¶ 35.)

-          Defendant received numerous violations for exceeding the speed limit by at least ten miles per hour.  Plaintiff was cited for two “speeding events” on June 15, 2017.  (Declaration of W. Scott Causey, Exh. B.)  Plaintiff was cited for two speeding events on July 14, 2017.  (Ibid.)  Plaintiff was cited for one speeding event on July 24, 2017.  (Ibid.)  Plaintiff was cited for four speeding events on August 10, 2017.  (Ibid.) 

-          Plaintiff’s speed was monitored by a device installed on his truck.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 41.)

-          Defendant relies on evidence that Plaintiff was terminated for tardiness.  (Declaration of W. Scott Causey, Exh. E.)  Defendant also relies on evidence that Plaintiff was terminated for failing to clock-out for his meal breaks.  (Id., Exh. C.)

-           On August 4, 2017, while operating Defendant’s vehicle, Plaintiff “slid into a tree, causing damage to the vehicle.”  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 45.) 

-          On August 10, 2017, Plaintiff was late for work.  (Defendant’s Separate Statement, ¶ 47.)  Plaintiff does not dispute that he was late for work that day.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 47.) 

-          On August 11, 2017, Plaintiff’s supervisor had a one-on-one meeting with Plaintiff to address the speeding infractions and tardiness.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 54.)  During this meeting, Plaintiff was presented with a written warning.  (Ibid.; see also Declaration of W. Scott Causey, Exh. D (000364-000374).)  Plaintiff was informed that further misconduct could result in a suspension or termination.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 56.) 

-          On or about August 15, 2017, John Ales investigated the damage from the collision.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 58.)  Plaintiff reported the damage as he visualized it and understood it to be.  (Id., ¶ 60.)  Plaintiff had reported that the vehicle had sustained a small bend in the step, but in fact, the steps had been pushed into the fender and the vehicle required a new gas tank.  (Ibid.)  As a result, Plaintiff was suspended for two days.  (Id., ¶ 65.)

-          Plaintiff received a warning form on August 17, 2017, which he refused to sign.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 66.)

-          Plaintiff skipped his meal breaks repeatedly in June, July, and August 2017.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶¶ 71-86.)

-          Plaintiff’s supervisor reported to Human Resources that Plaintiff continuously failed to follow directions and acted in a defiant and insubordinate manner.  (Plaintiff’s Response to Defendant’s Separate statement, ¶ 87.)

-          Plaintiff was terminated on September 19, 2017.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 88.)

Based upon the foregoing, Defendant has satisfied its burden of proffering legitimate reasons to terminate Plaintiff’s employment.

            Plaintiff does not create a triable issue with respect to these proffered explanations for his termination.  Plaintiff does not dispute that he was speeding.  Nor could he, as he admits that his vehicle was equipped with a device to monitor his speed.  Plaintiff asserts that he was “pushed to speed,” but he identifies no evidence that anyone ever told him to do so.  Plaintiff does not dispute that he damaged a vehicle or that Defendant had to replace the gas tank of the vehicle.  Plaintiff does not dispute that he was late for work.

            Plaintiff attempts to create a triable issue by arguing that evidence of missed and late deliveries was because he was assigned too much work.  In his declaration, Plaintiff states: “[A]fter my complaints, Larry Johnson began requiring me to complete an extreme number of deliveries, which was impossible to perform in a normal workday, and which no  other driver had to perform.”  (Declaration of Ricardo Guerra, ¶ 7.)  There is insufficient foundation for this assertion, as Plaintiff provides no predicate information to support this assertion.    

            Plaintiff attempts to characterize himself as a whistleblower in his declaration, stating that he was pushed to speed to make his deliveries and that he was forced to work without taking meal breaks.  (Id., ¶¶ 5, 7.)  Plaintiff states that he called Human Resources to ask for “justice.”  (Id., ¶ 8.)  The record does not support this assertion.  During his deposition, Plaintiff testified that he called Human Resources to “ask for justice” and reported “harassment.”  Specifically:

            Q:        When you had this call with a woman at human resources, what did you report to that person?

            A:        Well, this is a little hard for me, and it’s something that I’d like to forget.  Okay?  This person, I called to ask for justice, right, because this person was in charge of this yard was harassing me a lot, and I couldn’t be in the yard by myself.  And if I went to the bathroom, I would be followed.  If I was on the toilet, this person would knock on the door.  If I was washing my hands -- if I was there washing my hands, from the moment that I stepped in the yard, this person seemed to be my shadow.  So I called human resources to report this person who was harassing me a lot at work.  So they were going to send this person who’s called -- they call him safety, safety officer.  I called a Friday, I think, or a Wednesday.  I don’t know what day.  So they sent this safety person so that this problem that I was having with Larry Johnson could be resolved.  So this person, this safety officer, came to talk to us, with me.  Then we discussed the plan, that this gentleman, that he was going to behave, well, that he had talked to him.  Okay.  The gentleman said that everything was going to be okay, that he was going to resolve the problem and that he was going to fix things, that everything was going to be okay.  But it didn’t happen like that.  Things started to get worse and worse to the point that because I called human resources, they terminated me.  After that, the manager, before I was terminated, he started to treat me very badly until the day of my termination came.  That day, they treated me like a criminal.

(Declaration of Alena Klimianok, Exh. C, pp. 95-96.)  In opposing this motion, Plaintiff proffers no other parts of his deposition transcript in which he purportedly testified that he reported wage and hour violations and unsafe working conditions.

            Defendant proffered additional parts of Plaintiff’s deposition testimony, and they do not support Plaintiff’s assertion that he was a whistleblower.  Plaintiff could not identify any unsafe working conditions:

             Q:       What work conditions were unsafe at Sunbelt?  And this is, again, after you were hired for the second time?

            A:        I don’t know.  I don’t know what wasn’t safe.

            Q:        Did you complain to any of the managers at Sunbelt that there were unsafe working conditions?

                        . . .

            A:        Maybe yes, but not right now.  I don’t remember any of that.  I don’t remember.

(Defendant’s Appendix of Evidence in Support of Motion for Summary Judgment, Exh. C, pp. 200-201.)  Plaintiff cannot contradict his sworn deposition testimony.  (D'Amico v. Board of Med. Examiners (1974) 11 Cal.3d 1, 20-22.)    

            Plaintiff admits that he never complained to Human Resources about being required to work “off the clock.”  Specifically:

            Q:        [The policy states:] “Employees must notify Sunbelt’s payroll department immediately if there is a mistake on their paycheck.”  Now, did you ever contact the payroll department when there was a mistake on your paycheck?

            A:        I did notify about all that, but I don’t know who the person for payroll is, how you called it. 

            Q:        All right.  When you say you notified, who are you referring to?

            A:        Byron or Johnson.

            Q:        Okay.  And who at human resources did you contact about your paycheck not being correct?

            A:        I contacted human resources for other reasons.

            Q:        Did you ever contact human resources for issues relating to your paycheck?

            A:        No, for the check, no.

(Id., p. 92.)  Instead, Plaintiff claims that he approached two individual supervisors—Byron Gutierrez and Larry Johnson—multiple times about not being paid property for all of the hours he worked.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 28.)  Plaintiff has no recollection of when he complained about not being paid for all the hours he worked.  (Id., ¶ 29.)  Specifically:

            Q:        When did you complain?

            A:        I don’t know the date or the day, but I know for sure that I did complain.  I just don’t remember the dates.

            Q:        Was t before or after you had your Sunbelt truck bump into a tree?

            A:        It was long before.

            Q:        When was the last time that you complained about not being paid properly?

            A:        I don’t remember the dates.

            Q:        Was it before or after the Sunbelt truck that you were driving hit the tree?

            . . .

            A:        I don’t remember.

(Defendant’s Appendix of Evidence, Exh. C, pp. 181-182.)  Similarly:

            Q:        So sitting here today, sir, do you know which days, after you were rehired, that you believe that you were not paid for your work time?

            A:        Well, it would vary often.  I mean, the times that I would work that they wouldn’t pay me.  The times that I would work late.

            Q:        Could you please explain that?

            A:        Yes.  The days where they would tell me not to punch out, those were the days when they wouldn’t pay me for the extra hours.

            Q:        Which days are those, sir?

            A:        Well, I don’t remember.  It was five years ago, back in 2015.

(Id., Exh. C, pp. 176-177.)  This deposition was taken on April 7, 2022.  Yet, in his declaration, which is dated June 22, 2022, Plaintiff states something different:

            I was forced to work without meal breaks, and without pay during those missed meal breaks.  Specifically, this occurred, amongst other dates, on February 22, 2017, March 6, 2017, March 7, 2017, March 9, 2017, March 24, 2017, March 27, 2017, March 31, 2017, April 3, 2017, and April 7, 2017. . . .  I complained about these violations to Larry Johnson and other individuals at the company.  After that, I immediately began receiving punitive admonishments from Larry Johnson, including written warnings.

(Declaration of Ricardo Guerra, ¶¶ 5-6.)  Again, Plaintiff cannot contradict his sworn deposition testimony.  (D'Amico v. Board of Med. Examiners (1974) 11 Cal.3d 1, 20-22.)   

            Plaintiff provided contradictory testimony concerning whether Johnson required him to work through his lunch breaks.  He states that in his declaration.  But Plaintiff testified during his deposition as follows:

            Q:        Did he -- did Mr. Johnson say you would get a warning if you did not punch in for lunch -- excuse me, that you didn’t -- if you did not punch out for lunch, that you would get a warning on the days that you did not take a lunch before five hours?

            A:        Yes.

            Q:        Did Mr. Gutierrez say that you would get a warning if you did not punch out for lunch when you were taking a lunch break after five hours?

            A:        Yes.

(Defendant’s Appendix of Evidence, Exh. C, p. 75.) 

Plaintiff states in his declaration that he was forced to work “without pay during those missed meal breaks.”  (Declaration of Ricardo Guerra, ¶ 5.)  However, Plaintiff provided contradictory testimony concerning whether he was paid for the missed hours: 

            Q:        How many times did you complain to Mr. Johnson about your hours?

            A:        Many times -- I’m sorry.  Many times.  Many times.

            Q:        What did Mr. Gutierrez say in response to your complaint?

            A:        That they were going to return them to me, that they were going to check?

            . . .

            Q:        Do you know if your paycheck was changed to reflect the hours that you think you should have been paid for?

            A:        I don’t remember.

            Q:        What did Mr. Johnson say in response to your complaints that you were not paid for all hours worked?

            A:        That they were going to check.

            Q:        And after Mr. Johnson said that they were going to check, were the -- was the paycheck or paychecks you complained about, were they changed?

            A:        I don’t remember there being a change.

            Q:        Do you recall if at any time you were paid for the hours that you complained to Mr. Johnson about?

            A:        I don’t remember.

(Defendant’s Appendix of Evidence, Exh. C, pp. 87-88.)   

            Plaintiff relies on the declaration of Alex Perez, who states that Plaintiff complained about having to work during his lunch breaks.  (Declaration of Alex Perez, ¶ 3.)  Even assuming these complaints were made to management, Perez does not identify a sufficient time period to conclude that there is any relationship between the complaints and Plaintiff’s termination. 

            Based upon this record, the Court cannot conclude there is sufficient evidence that Plaintiff acted as a whistleblower with respect to safety concerns.  To the extent Plaintiff attempts to predicate this case upon complaints about wage and hour violations, there is insufficient evidence to create a triable issue that his termination was retaliatory.  Defendant proffers evidence of Plaintiff’s repeated performance problems, and Plaintiff cannot dispute that there were numerous safety violations stemming from speeding and an accident that was so serious the gas tank had to be replaced.  Nor does Plaintiff proffer sufficient evidence to establish a temporal proximity between his complaints and his termination.  Therefore, the Court grants Defendant’s motion.

CONCLUSION AND ORDER

             The Court grants Defendant’s motion for summary judgment.  Defendant shall provide notice and file proof of such with the Court.