Salazar v. Cargill Meat Solutions Corporation ( 2019 )

2 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 JOHN SALAZAR, 1:18-cv-00847-LJO-EPG 7 Plaintiff, MEMORANDUM DECISION AND ORDER RE DEFENDANT CARGILL 8 v. MEAT SOLUTIONS CORPORATION’S MOTION FOR SUMMARY 9 CARGILL MEAT SOLUTIONS CORP. aka JUDGMENT (ECF No. 17) CARGILL BEEF SOLUTIONS CORP.; and 10 DOES 1–100, 11 Defendants. 12 13 I. INTRODUCTION 14 Plaintiff John Salazar raises discrimination and retaliation claims under the California Fair 15 Employment Housing Act and a claim for wrongful termination in violation of public policy under 16 California Labor Code § 1102.5. Defendant Cargill Meat Solutions Corporation filed a motion for 17 summary judgment or, in the alternative, summary adjudication. The Court has thoroughly reviewed the 18 facts and evidence in the record in light of applicable authorities and only discusses here the facts and 19 arguments that are material and dispositive. Based on the Court’s review, Defendant’s motion for 20 summary judgment is GRANTED in part, and DENIED in part. 21 II. FACTUAL BACKGROUND 22 John Salazar (“Mr. Salazar” or Plaintiff”) was the Harvest Superintendent at Cargill Meat 23 Solutions Corporation (“Cargill”). McFarland Decl. ¶ 2, Ex. A, Salazar Dep. 64:4–15, Jan. 23, 2019 24 (ECF No. 23-1); Salazar Decl. ¶ 11, Ex. 1, at 6 (ECF No. 28-3). Rosalinda Lee (“Ms. Lee”) worked as 25 the general foreman at Cargill from 2007 to 2013. Lee Decl. ¶ 4 (ECF No. 28-5). The record indicates 2 Steiner”). See, e.g., Salazar Dep. 85:1–15 (ECF No. 28-6); (ECF No. 28-1 ¶ 8). According to Mr. 3 Salazar, Mr. Steiner demoted Ms. Lee from a general foreman to a supervisor. Salazar Dep. 85:16–17 4 (ECF No. 28-6). 5 Between August 2013 to November 2013, and in June 2014, the record shows that Cargill 6 investigated complaints relating to Mr. Salazar and Ms. Lee. See, e.g., Mott Decl. ¶ 8, Ex. E (ECF No. 7 20-5); Id. ¶ 8, Ex. F (ECF No. 20-6); Id. ¶ 9, Ex. G, at 2–3 (ECF No. 20-7); Id. ¶ 10, Ex. H at 1 (ECF 8 No. 20-8); ECF No. 28-1. 9 In January 2014,1 Cargill issued Mr. Salazar a “Final Written Warning” for unfair and unequal 10 treatment of employees. The notice specifically states: “Ensure supervisors are the ones to issue 11 discipline and [are] involved in discipline discussions and termination discussions. John [Salazar] does 12 not need to be involved. If Rosalinda . . . needs help, she needs to request the help from Human 13 Resources or the department manager, Rudy Steiner. John [Salazar] is not to assist.” Mott Decl. ¶ 22, 14 Ex. J at 3 (ECF No. 20-10). 15 In approximately 2013 or 2014, Jose Manuel Espinoza, another Cargill supervisor who worked 16 under Mr. Salazar, contends that he “witnessed Rudy Steiner . . . refer to Rosalinda Lee as a monkey” 17 and tell her “you’re a woman, you don’t know what you are doing.” Espinoza Decl. ¶ 7. Mr. Espinoza 18 “heard Rudy Steiner tell Rosalinda Lee [that] women are dumb to lead people on the floor[.] They do 19 not know what they are doing.” Id. 20 21 1 Exhibit J shows that the Performance Correction Notice was presented to John Salazar on January 28, 2013. In his 22 declaration, Shawn Mott states that Exhibit J is a true and correct copy of the warning Plaintiff received in January 2014. 23 Mott Decl. ¶ 22 & Ex. J (ECF Nos. 20, 20-10). Plaintiff did not dispute this fact. He only objected on relevance grounds. 24 The last page of Exhibit J shows that all signatures were executed on February 10, 2014. Based on the parties’ undisputed 25 facts, the Court w ill accept that this notice was presented in January 2014 for purposes of this motion. 2 “Rudy Steiner harass Rosalinda Lee for being a woman” and that Mr. Steiner retaliated against Mr. 3 Salazar for raising the alleged harassment with Cargill General Manager Jon Nash and John Neiman. 4 Salazar Dep. 34:4–10 (ECF No. 23-1). Mr. Salazar also testified that Mr. Steiner retaliated against him, 5 stating during meetings “all the time that [Mr. Salazar] was too old for the job.” Id. at 34:23–25. 6 According to Mr. Salazar’s deposition testimony,2 Mr. Steiner said that he needed someone younger “a 7 couple hundred times . . . [m]ore or less.” Id. at 45:20–22. 8 On February 10, 2014, Ms. Lee filed a Department of Fair Employment and Housing (“DFEH”) 9 charge against Cargill, claiming gender-based discrimination and retaliation. Mott Decl. ¶ 23, Ex. K, at 10 2. Rudy Steiner left Cargill in February 2014. ECF No. 28-1 ¶ 29. 11 From April 2014 to October 2014, Ron Logan served as Mr. Salazar’s supervisor. Id. At some 12 point during Mr. Espinoza’s employment, Mr. Espinoza contends “Ron Logan told [him] that the 13 corporate office of Cargill wanted to get rid of John Salazar.” Espinoza Decl. ¶ 6. Beginning in 14 November 2014, Lawrence Romero became John Salazar’s direct supervisor. Id. ¶ 30. 15 On December 22, 2014, Mr. Salazar spoke with a DFEH investigator at Cargill in support of Ms. 16 Lee’s gender discrimination and harassment claims. Salazar Decl. ¶ 6; Espinoza Decl. ¶ 7; Lee Decl. ¶ 17 7. Cargill’s lawyer and Keith Mohander (another Cargill employee) were present during Mr. Salazar’s 18 DFEH interview. Salazar Decl. ¶ 6. It is disputed whether Mr. Romero knew that the DFEH 19 interviewed Mr. Salazar regarding Ms. Lee’s claims. See Espinoza Decl. ¶ 9 (ECF No. 28-4); Romero 20 Decl. ¶¶ 5, 7, 9–10 (ECF No. 22). According to Mr. Espinoza, Mr. Romero told him that a third party 21 was interviewing John Salazar regarding Ms. Lee’s claims.3 Espinoza Decl. ¶ 9. 22 23 2 In his opposition to the Defendant’s summary judgment motion, Mr. Salazar only refers to Mr. Romero’s alleged age-based 24 statements, not Mr. Steiner’s. Salazar Dep. 45:20–22 (ECF No. 23-1). 25 3 Mr. Romero den ies that he knew about Ms. Lee’s DFEH complaint at the time and claims that Cargill purposely shielded 2 interview. Mr. Salazar asserts that Lawrence Romero took over the daily morning meetings. Salazar 3 Decl. ¶ 9; Espinoza Decl. ¶ 12; Lee Decl. ¶ 8. According to Mr. Salazar, Mr. Salazar previously ran the 4 morning meetings with the harvest manager, the harvest superintendent, and the supervisors. Salazar 5 Decl. ¶ 8; Espinoza Decl. ¶¶ 10–11; Lee Decl. ¶ 6. Sometime “before the holidays,” Mr. Salazar 6 testified that he first complained to Mr. Romero about having “no support” from him, explaining that 7 Mr. Romero was “not really giving [him] any information,” and was “taking over [his] meetings.”4 8 Salazar Dep. 13:1–5, 14:14–15:6. 9 In addition, Mr. Salazar, Mr. Espinoza, and Ms. Lee contend that Mr. Romero stated “two to 10 three times a week that he needed to bring in young blood to run the kill floor” and that Mr. Salazar was 11 old.5 Salazar Decl. ¶ 9; Espinoza Decl. ¶ 12; Lee Decl. ¶ 11. Mr. Salazar contends that Mr. Romero 12 instructed Mr. Salazar to train Jimmy Malone, who was in his early thirties, to take over Mr. Salazar’s 13 job because he was “getting too old.” Salazar Dep. 66:23–25. Mr. Espinoza also stated in his 14 declaration that “Cargill and Lawrence Romero were having another employee, Jimmy Malone, trained 15 to take over John Salazar’s job.” 6 Espinoza Decl. ¶ 12. Mr. Romero denies these statements. Romero 16 Decl. ¶ 15. 17 Furthermore, as Harvest Superintendent, Mr. Salazar previously gave all supervisors their 18 assignments and direction. Salazar Decl. ¶ 9; Espinoza Decl. ¶ 12; Lee Decl. ¶ 11. After the DFEH 19 20 him from learning that information because he “had no need to know about it.” Romero Decl. ¶¶ 5, 7, 9–10. 21 4 This is a disputed fact. In his declaration, Mr. Romero states that Mr. Salazar never complained to him about anything. 22 Romero Decl. ¶ 7. 23 5 Mr. Salazar was sixty years old at the time. 24 6 According to the present record, Jimmy Malone never replaced Mr. Salazar after Mr. Salazar left Cargill. Salazar Dep. 25 146:8–147:10. 2 floor supervisors on how to complete their jobs. Salazar Decl. ¶ 9; Espinoza Decl. ¶ 12; Lee Decl. ¶ 12. 3 There was also a weekly managers’ meeting at Cargill. After the DFEH interviewed Mr. Salazar, Mr. 4 Salazar contends that Mr. Romero excluded him from those meetings. Salazar Decl. ¶ 9; Lee Decl. ¶ 13. 5 Moreover, Mr. Romero overruled Mr. Salazar’s decisions to discipline an employee. Salazar 6 Decl. ¶ 9; Espinoza Decl. ¶ 12; Lee Decl. ¶ 14. Mr. Salazar planned on having that employee 7 terminated, but once Mr. Romero became involved, he overrode Mr. Salazar’s decision. Id. Afterwards, 8 Mr. Espinoza stated that he “saw the hourly employees on the kill floor lose respect for John Salazar. 9 They would tell me that John Salazar lost his authority. Some of the employees laughed at John 10 Salazar.” Espinoza Decl. ¶ 12. 11 Cargill does not appear to contest Mr. Salazar’s assertion that Mr. Romero told Mr. Salazar that 12 “if he supported Rosalinda Lee that he was going to be fired.”7 “Lawrence Romero told John Salazar 13 that Brian Dierksen, a Vice President at Cargill, had asked Lawrence Romero, when he was going to fire 14 John Salazar.” Salazar Dep. 210:2–211:24 (ECF No. 28-6); Salazar Decl. ¶¶ 7, 10 (ECF No. 28-3).8 15 Mr. Salazar testified that “[i]n a roundabout way. [H]e9 did say . . . if I had said anything . . . I was going 16 to get fired pretty much.” Salazar Dep. 210:20–211:24. When asked what Lawrence Romero said, 17 Salazar responded, “if I did say anything or I did support that I was going to get fired.” 10 Id. 18 19 7 Defendant did not dispute this in its opposition to the Plaintiff’s SUMF 29. ECF No. 32. However, Lawrence Romero 20 “vehemently denies” allegations that he mistreated Mr. Salazar and retaliated against him because of his support for Rosalinda Lee. He states that he was unaware that Mr. Salazar supported Ms. Lee in any discrimination or harassment claim. 21 8 Defendant does not formally respond to Plaintiff’s SUMF 29. ECF No. 32. But, Mr. Romero denies this allegation. Given 22 that this is Defendant’s burden on its motion for summary judgment, the Court accepts Plaintiff’s evidence as true for 23 purposes of this motion. 24 9 Based on the excerpt of this testimony, it is unclear whether the “he” refers to Mr. Romero in this statement. 25 10 Cargill’s couns el asked Mr. Salazar whether anyone had expressly threatened to fire Mr. Salazar if he supported Rosalinda 2 Dierksen’s allegedly questioning Mr. Romero about firing Mr. Salazar. Mr. Salazar also complained to 3 Nash about his belief that the company retaliated against him and was forcing Mr. Salazar to resign 4 based on his statements to the DFEH. Salazar Dep. 14:7–17:3. 5 Ms. Lee contends that, sometime in January 2015, Mr. Romero told her that he was upset with 6 Mr. Salazar for supporting her when the DFEH interviewed Mr. Salazar. Lee Decl. ¶ 16. Ms. Lee 7 further contends that Mr. Romero told her that Mr. Salazar never should have testified for her. Id.11 8 On February 26, 2015, Mr. Salazar offered his resignation letter and two weeks’ notice. Salazar 9 Decl. ¶ 11, Ex. 1. Because Plaintiff planned to work for a competitor, Cargill paid him for the two-week 10 notice period instead of having Plaintiff work at the plant for the next two weeks. Mott Decl. ¶ 31, Ex. 11 M (ECF No. 20-13). Thus, February 26, 2015 was Mr. Salazar’s last day at Cargill. Id. 12 On November 20, 2015, Plaintiff filed a DFEH charge alleging retaliation. Mott Decl. ¶ 34, Ex. 13 O (ECF No. 20-15). Mr. Salazar’s DFEH complaint states: 14 1. I, John Salazar, allege that I was subjected to Retaliation by respondent, Cargill . . . due to one or more [FEHA] protected bases: 15 Association with a member of a protected class. 16 2. I was constructively terminated. The most recent harm occurred on or around January 22, 2015. 17 18 19 Lee. Salazar Dep. 141:16–23 (ECF No. 23-1). Mr. Salazar responded, “No. They didn’t say it, but Moldenauer was 20 showing it. . . [B]y the way he was looking at me, by his body language . . . like in other words, don’t say nothing. Don’t say nothing. Nobody said nothing, but it’s just you get the vibes, like real strong vibes, like don’t say nothing.” See also id. 21 66:1–6 (ECF No. 23-1) (A: “Well, he didn’t tell me, but by him saying that Brian Dirksen asked ‘when are you going to fire 22 Salazar?’ to me was – my days were counted, so I was forced to resign.” Q: “So he didn’t tell you you were going to be 23 fired?” A: “Well, no, but I mean, by him saying that, to me that’s what he meant.”). 24 11 Again, Mr. Romero “vehemently” denies this allegation. Romero Decl. ¶ 14. But, for purposes of this motion, the Court 25 must accept the v ersion of disputed facts that best serves Plaintiff. complained about discrimination of a coworker. After the hearing many 2 coworkers were interviewed regarding my involvement in the case. I was then harassed by Lawrence Romero and felt targeted. I feel I was harassed 3 so that I would quit my job. I was constructively terminated due to the harassment. 4 Id. at 5. On the standard EEOC cover sheet, Mr. Salazar only selected “retaliation” as the basis for 5 discrimination. Id. at 8. He did not check any boxes for “Age Discrimination in Employment Act of 6 1967,” “Age,” or “Disability.” The dates of the alleged violation are listed as February 14, 2014 to 7 January 22, 2015. Id. 8 Mr. Salazar testified that he was not making any disability discrimination claims. Salazar Dep. 9 44:19–45:5. Mr. Salazar further testified that the bases for his age discrimination claim are Rudy 10 Steiner’s and Lawrence Romero’s comments stating that Mr. Salazar “was too old for the job.” Id. at 11 45:10–17. Mr. Salazar clarifies in his deposition and responses to Defendants’ Special Interrogatories 12 that his discrimination claim is based on his association with only Rosalinda Lee and Cargill’s age-based 13 comments. See id. at 78:9–13 (ECF No. 23-1); Pl.’s Resps. To Def.’s Special Interrog. No. 9 (ECF 14 No.23-3 at 8) (identifying Rosalinda Lee as person with whom Plaintiff associated that he contends led 15 to Cargill’s discrimination). 16 Mr. Salazar filed a complaint on February 17, 2017 in the Fresno County Superior Court. ECF 17 No. 1-1 at 2. On May 3, 2018, Mr. Salazar filed his First Amended Complaint against Cargill alleging: 18 (1) FEHA discrimination for association with a member of a protected class; (2) FEHA disability 19 discrimination; (3) FEHA retaliation; and (4) wrongful termination in violation of public policy. ECF 20 No. 1-1 at 17–29. Cargill removed the action to this Court on June 20, 2018. ECF No. 1 at 1. Mr. 21 Salazar also seeks punitive damages. ECF No. 1-1 at 29. 22 23 24 25 12 The record sho ws that Mr. Salazar did not appear at a DFEH hearing. 2 Summary judgment is proper if the movant shows “there is no genuine dispute as to any material 3 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. The moving party 4 bears the initial burden of “informing the district court of the basis for its motion, and identifying those 5 portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with 6 the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” 7 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal citation and quotation omitted). A fact is 8 material if it could affect the outcome of the suit under the governing substantive law; “irrelevant” or 9 “unnecessary” factual disputes will not be counted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 10 (1986). 11 If the moving party would bear the burden of proof on an issue at trial, that party must 12 “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” 13 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). In contrast, if the non-moving 14 party bears the burden of proof on an issue, the moving party can prevail by “merely pointing out that 15 there is an absence of evidence to support the non-moving party’s case.” Id. When the moving party 16 meets its burden, the non-moving party must demonstrate that there are genuine disputes as to material 17 facts by either: 18 (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made 19 for purposes of the motion only), admissions, interrogatory answers, or other materials; or 20 (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. 21 Fed. R. Civ. P. 56(c). 22 In ruling on a motion for summary judgment, a court does not make credibility determinations or 23 weigh evidence. See Anderson, 477 U.S. at 255. Rather, “[t]he evidence of the non-movant is to be 24 believed, and all justifiable inferences are to be drawn in his favor.” Id. Only admissible evidence may 25 2 speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and 3 defeat summary judgment.” Soremekun, 509 F.3d at 984. 4 IV. DISCUSSION 5 A. Direct Discrimination Claims 6 1. Exhaustion of Administrative Remedies 7 Exhaustion of administrative remedies is a jurisdictional prerequisite to bringing a FEHA claim 8 in court. See Okoli v. Lockheed Tech. Operations Co., 36 Cal. App. 4th 1607, 1612 (1995) (holding 9 employee’s failure to exhaust administrative remedies barred retaliation claim where employee failed to 10 amend DFEH charge to include employer’s retaliatory actions, and new claims were “neither like nor 11 reasonably related to DFEH claim”) (citing Cal. Gov’t Code § 12960). Under California law, an 12 employee must exhaust the administrative remedy under FEHA by filing an administrative complaint 13 with the DFEH and obtaining the DFEH’s notice of a right to sue before bringing a FEHA claim in 14 court. See Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718, 1724 (1994) (holding 15 plaintiff failed to exhaust administrative remedies where FEHA complaint did not include sex 16 discrimination and retaliation claims). “To exhaust his or her administrative remedies as to a particular 17 act made unlawful by [FEHA], the claimant must specify that act in the administrative complaint, even 18 if the complaint does specify other cognizable wrongful acts.” See id. Under FEHA, “failure to exhaust 19 an administrative remedy is a jurisdictional, not a procedural, defect,’ and thus that failure to exhaust 20 administrative remedies is a ground for a defense summary judgment.” Id. (citing Miller v. United 21 Airlines, Inc., 174 Cal. App. 3d 878, 890 (1985)). 22 Here, Mr. Salazar filed a complaint with the DFEH on November 20, 2015 alleging only 23 “Retaliation” under FEHA, basing his allegation of retaliation on “[a]ssociation with a member of a 24 protected class,” and his “appear[ance] at a hearing when [Salazar] complained about discrimination of a 25 co-worker.” ECF No. 20-15 at 5–8. Mr. Salazar does not allege direct discrimination in his FEHA 2 Defendant points this out in its motion, arguing that Plaintiff’s entire FEHA discrimination claim 3 is subject to dismissal on exhaustion grounds. See ECF No. 19 at 22 (“Plaintiff did not exhaust his 4 administrative remedy for FEHA discrimination on any basis (association with someone in a protected 5 category, age, or disability)).” Plaintiff does not respond directly to this assertion, focusing instead on 6 his retaliation claim. See generally ECF No. 28. The Court agrees with Defendant that Plaintiff did not 7 exhaust any form of direct discrimination claim, whether based on association with a person in a 8 protected class, age, or disability. 9 Plaintiff does suggest, somewhat confusingly, that his age discrimination claim should be 10 allowed to proceed because, “after plaintiff was interviewed by the DFEH, defendant started harassing 11 plaintiff because of his age to get him to quit.” ECF No. 28 at 10. Plaintiff suggests that an age 12 discrimination claim should be allowed to proceed because such a claim is a “reasonable expansion” of 13 the civil complaint, since it is “related to the retaliation.” While Plaintiff is correct that a line of cases 14 supports the proposition that a FEHA complaint may encompass any discrimination that is “like or 15 reasonably related to” the allegations made the charge of discrimination,” Couveau v. Am. Airlines, Inc., 16 218 F.3d 1078, 1082 (9th Cir. 2000) (quoting Okoli v. Lockheed Tech. Operations Co., 36 Cal. App. 4th 17 1607, 1614–17 (1995)), that rule is normally used to allow inclusion of acts of discrimination that occur 18 after an administrative charge is filed. Id. Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 19 (9th Cir. 2002) (extending Title VII jurisdiction over charges that “fell within the scope of the EEOC’s 20 actual investigation or an EEOC investigation which can reasonably be expected to grow out of the 21 charge of discrimination.”). By way of example, under most circumstances, “a complaint alleging race 22 discrimination is neither ‘like or related to’ nor likely to be discovered in a ‘reasonable’ investigation of 23 a charge of sex discrimination.” Okoli, 36 Cal. App. 4th at 1615. The Court is unaware of any authority 24 that would support a finding that an investigation of Plaintiff’s DFEH complaint—which focuses on 25 retaliation and nowhere mentions Plaintiff’s age or age discrimination—reasonably would have been 2 Notably, Plaintiff nowhere asserts that a claim of direct discrimination based upon his 3 association with a protected person, namely Ms. Lee—a woman, should proceed on a theory that such a 4 claim is “like or reasonably related to” the allegations made in the administrative charge of 5 discrimination. Plaintiff instead appears to be focusing on prosecuting and proving his retaliation claim. 6 The Court will not manufacture an argument for Plaintiff. 7 Accordingly, the Court GRANTS Defendant’s motion for summary judgment as to the first 8 cause of action (FEHA discrimination) for failure to exhaust.13 9 That said, no party argues that evidence related to comments any Cargill personnel may have 10 made about Plaintiff’s age are irrelevant to Plaintiff’s retaliation claim and, more specifically, to 11 Plaintiff’s overall showing of adverse employment action. 12 B. Retaliation Under FEHA 13 To establish a prima facie case of retaliation under FEHA, an employee must show: (1) he 14 engaged in an activity protected by FEHA; (2) the employer subjected him to an adverse employment 15 action; and (3) a causal link between the protected activity and the adverse employment action. See 16 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005). 17 18 19 13 Even if, arguendo, the entire FEHA discrimination claim was not subject to dismissal on exhaustion grounds, Plaintiff 20 arguably could not maintain here a direct age discrimination claim because the First Amended Complaint does not allege a FEHA age discrimination claim. Instead, Mr. Salazar indicates that he unintentionally asserted a FEHA disability claim. Mr. 21 Salazar clarified in his deposition and discovery responses that he is not seeking a FEHA disability claim. See Salazar Dep. 22 44:19–45:5; Id. ¶ 4, Ex. C at 6–8, 10. Mr. Salazar states in his opposition that “plaintiff has advised defendant that the use of 23 the word ‘disability’ discrimination is a typographical error since the early stage of this case.” ECF No. 28 at 10. But, Mr. 24 Salazar never amended his complaint to include an age discrimination claim, nor can his First Amended Complaint 25 reasonably be rea d to include any direct age discrimination allegations. 2 The parties agree for purposes of this motion that Mr. Salazar’s participation in the December 3 22, 2014 DFEH interview constitutes protected activity. ECF No. 19 at 26 n.5; ECF No. 28 at 7. Thus, 4 the first element of FEHA retaliation is satisfied. 5 2. Adverse Employment Action 6 The Court has carefully reviewed the record and notes that this is an exceedingly close call. 7 Resolving inferences in Plaintiff’s favor at this stage, the Court finds a genuine issue of material fact 8 exists on whether Mr. Salazar suffered an adverse employment action. An adverse employment action 9 must materially affect the terms, conditions, or privileges of employment to be actionable. See 10 Yanowitz, 36 Cal. 4th at 1052. The determination of an adverse employment action is not a 11 “mathematically precise test.” Id. at 1054. Courts should consider “the unique circumstances of the 12 affected employee as well as the workplace context of the claim,” including the legitimate interests of 13 both the employer and employee. See id. at 1052, 1054. “Enforcing a requirement that each act 14 separately constitute[s] an adverse employment action would subvert the purpose and intent of 15 [FEHA].” Id. at 1055–56. “Minor or relatively trivial adverse actions or conduct by employers . . . from 16 an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot 17 properly be viewed as materially affecting the terms, conditions, or privileges of employment and are 18 not actionable.” Id. at 1054–55. “[M]ere ostracism in the workplace is insufficient to establish an 19 adverse employment decision.” Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000). 20 In contrast, “adverse treatment that is reasonably likely to impair a reasonable employee’s job 21 performance or prospects for advancement or promotion falls within the reach of the antidiscrimination 22 provisions of [FEHA].” Yanowitz, 36 Cal. 4th at 1054–55. “Adverse employment actions can include 23 termination, demotion, failing to promote, denial of an available job, adverse job assignments, official 24 discipline, and significant changes in compensation or benefits.” Ayala v. Frito Lay, Inc., 263 F. Supp. 25 3d 891, 905 (E.D. Cal. 2017) (finding sufficient allegations of adverse employment action in FEHA 2 transfer work shifts, denial of long-term disability benefits, and termination). 3 In Yanowitz, the California Supreme Court held that an employee met her prima facie burden in 4 establishing an adverse employment action where: (1) she received unwarranted negative performance 5 evaluations after a long period as a highly rated employee; (2) the employer refused to allow the 6 employee to respond to the unwarranted criticism; (3) she received months of humiliating, unwarranted 7 public criticism; (4) the employer refused to provide necessary resources and assistance to the 8 employee’s staff; and (5) the supervisor’s repeated solicitation of negative feedback from the plaintiff’s 9 staff. Yanowitz, 36 Cal. 4th at 1039, 1055, 1060. The employee also suffered implied threats of 10 termination where a supervisor told the employee that “[i]t would be a shame to end an eighteen-year 11 career this way” and her career would be “over” unless “there were immediate changes.” Id. at 1038– 12 39, 1060. 13 Additionally, the California Court of Appeal held that a genuine issue of material fact existed 14 regarding whether an employee suffered an adverse employment action where the plaintiff was allegedly 15 isolated, moved to a different office, verbally and physically attacked, rejected for promotion, subjected 16 to reduced hours, and denied previously promised training. Light v. Dep’t of Parks & Recreation, 14 17 Cal. App. 5th 75, 92–93 (2017). But see Thomas, 77 Cal. App. 4th at 511–12 (finding no adverse 18 employment action where claims involved one-time events, including delayed overtime check, early job 19 change, assignment of more duties than other employees, without facts evidencing substantial and 20 detrimental effect on employment). 21 Mr. Salazar argues he suffered an adverse employment action at Cargill. This Court will only 22 address the key arguments that impact its decision: Cargill allegedly threatened to fire Mr. Salazar for 23 supporting Ms. Lee’s gender harassment and discrimination claims. Salazar Dep. 210:20–211:24. Mr. 24 Salazar contends that Mr. Romero allegedly told Mr. Salazar that a Cargill Vice President asked Mr. 25 Romero “when he was going to fire” Mr. Salazar. Salazar Decl. ¶ 10. According to Ms. Lee, Mr. 2 interviewed by the DFEH” and that Mr. Salazar “never should have testified for you.” Lee Decl. ¶ 16. 3 Mr. Romero “took over” morning meetings (ECF No. 28 at 6; ECF No. 28-3 ¶ 9) and excluded Plaintiff 4 from the weekly management meetings (Salazar Decl. ¶ 9; Lee Decl. ¶ 13). Mr. Romero “harassed John 5 Salazar because of his age” and “threatened” to replace Mr. Salazar with a younger person.14 For 6 example, Mr. Salazar alleges that Mr. Romero repeatedly would state that he needed someone younger 7 to run the floor and that Plaintiff was too old.15 Salazar Dep. 13:6–12. Mr. Romero also overrode Mr. 8 Salazar’s request to fire an employee. ECF No. 28 at 6; ECF No. 28-4 ¶ 12. 9 Viewing each piece of evidence in a vacuum could lead the Court to find that Mr. Salazar did not 10 suffer an adverse employment action. Taken altogether, as Yanowitz instructs, the evidence supports a 11 finding of a triable issue of material fact. See Yanowitz, 36 Cal. 4th at 1055–56. Mr. Romero’s alleged 12 takeover of the morning meetings, exclusion of Mr. Salazar in the managers’ meetings, overriding of 13 14 15 14 While the Court dismissed Mr. Salazar’s age discrimination claim for failure to exhaust administrative remedies, the Court considers the alleged comments about Mr. Salazar’s age, along with other evidence, in its evaluation of the totality of 16 circumstances surrounding the purported adverse employment actions. See Yanowitz, 36 Cal. 4th at 1055–56. 17 15 Cargill objects on the grounds of double hearsay to Mr. Salazar’s declaration stating that Mr. Romero told him that a 18 Cargill Vice President asked Mr. Romero “when he was going to fire” Mr. Salazar. ECF No. ¶ 10. This is hearsay within 19 hearsay. There is an exception, however, for a party opponent admission. Fed. R. Evid. 801(d)(2)(D). Here, Mr. Romero, a 20 supervisor at Cargill, and the Cargill Vice President, allegedly made these statements at Cargill’s Fresno plant, and they involve Mr. Salazar’s employment. Therefore, the statements qualify as party opponent admissions. Cargill further objects 21 on the grounds that Mr. Salazar does not have any personal knowledge regarding what the Cargill Vice President asked Mr. 22 Romero. Of course he does not. That is why it is hearsay within hearsay. Critically, Mr. Salazar is only stating what he 23 allegedly learned from Mr. Romero. Thus, he does not need to have personal knowledge regarding the Vice President’s 24 statements. Accordingly, Cargill’s objections are OVERRULED. 25 2 Lee about Mr. Salazar’s participation in the DFEH interview, establish a genuine issue of material fact 3 on whether Mr. Salazar suffered an adverse employment action. See Yanowitz, 36 Cal. 4th at 1051–52. 4 The record suggests that Cargill received several complaints about Mr. Salazar and Ms. Lee. 5 ECF No. 31 ¶ 9. But, nothing in the record directly ties the prior complaints about Mr. Salazar and Ms. 6 Lee to Mr. Romero’s decision to override Mr. Salazar’s request to terminate another employee. While 7 the Court must consider the legitimate interests of both the employer and employee under Yanowitz, 36 8 Cal. 4th at 1054, the Court must resolve all reasonable inferences in the nonmoving party’s favor at 9 summary judgment. See Anderson, 477 U.S. at 255. 10 Viewing the evidence in a light most favorable to Plaintiff, the Court finds a genuine issue of 11 material fact exists as to whether Mr. Salazar suffered an adverse employment action. See id. at 1055– 12 56 (“[e]nforcing a requirement that each act separately constitute[s] an adverse employment action 13 would subvert the purpose and intent of [FEHA]”). 14 3. Causal Link Between the Protected Activity and the Adverse Employment Action 15 To establish causation, the plaintiff must show by a preponderance of the evidence that his 16 engagement in the protected activity was one of the reasons for the adverse employment decision, and 17 that but for such activity, the decision would not have been made. See Kraus v. Presidio Trust Facilities 18 Division/Residential Mgmt. Branch, 704 F. Supp. 2d 859, 863 (N.D. Cal. 2010) (citing Villiarimo v. 19 Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002)). “The causal link may be established by an 20 inference derived from circumstances evidence, such as the employer’s knowledge that the plaintiff 21 engaged in protected activities and the proximity in time between the protected action and the allegedly 22 retaliatory employment decision.” Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988) (internal 23 citations and quotations omitted). The timing of an adverse employment action can provide strong 24 evidence of retaliation. See Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (finding genuine 25 issue of material fact on causation where adverse actions occurred within three months of protected 2 Mr. Salazar participated in the DFEH interview regarding Ms. Lee’s claims on December 22, 3 2014. Salazar Decl. ¶ 6; Espinoza Decl. ¶ 7; Lee Decl. ¶ 7. Sometime after the DFEH interview, Mr. 4 Salazar alleges he suffered various consequences culminating in adverse employment actions. Salazar 5 Decl. ¶¶ 9–11. Mr. Salazar submitted his resignation letter on February 26, 2015. Salazar Decl. ¶ 11, 6 Ex. 1. Assuming Mr. Salazar’s allegations as true, Cargill’s retaliatory acts would have occurred 7 sometime between December 22, 2015 and February 26, 2015. Like in Yartzoff, where the Ninth Circuit 8 held that genuine issues of material fact existed regarding causation where a plaintiff incurred adverse 9 actions within three months of his protected activity, here, Mr. Salazar allegedly suffered adverse 10 employment actions within two months of his DFEH interview. See Yartzoff, 809 F.2d at 1376. Thus, 11 the temporal proximity between his DFEH interview and purported adverse employment actions creates 12 a triable issue of material fact as to causation. It is disputed whether Mr. Romero knew that Mr. Salazar 13 provided information supporting Ms. Lee’s claims against Cargill to the DFEH. Romero Decl. ¶¶ 5, 7, 14 9–10. The record also suggests that a Cargill attorney and employee were present during Mr. Salazar’s 15 DFEH interview. Salazar Decl. ¶ 6. As such, this Court finds a genuine issue of material fact exists on 16 whether there was a causal link between Mr. Salazar’s protected activity and the adverse employment 17 actions. Accordingly, Cargill’s motion for summary judgment on Mr. Salazar’s FEHA retaliation claim 18 is DENIED. 19 C. Constructive Discharge 20 While Cargill’s various alleged acts may create a triable issue of fact as to whether Mr. Salazar 21 suffered an adverse employment action, even viewing all the evidence in a light most favorable to 22 Plaintiff, no reasonable jury could find that Mr. Salazar was constructively discharged. For constructive 23 discharge, adverse working conditions must be unusually aggravated or amount to a continuous pattern 24 before the situation is deemed intolerable. See Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1247 25 (1994) (holding illegal conduct in workplace, elapsed time, and negative performance evaluation did not 2 discharge). An employee must plead and prove, by a preponderance of the evidence, that the employer 3 either intentionally created or knowingly permitted working conditions that were so intolerable or 4 aggravated at the time of employee’s resignation that a reasonable employer would realize that a 5 reasonable person in the employee’s position would be compelled to resign. See id. at 1250–51, 1254– 6 55. Under this standard, those who effectively represent the employer, including an employer’s officers, 7 directors, managing agents, or supervisory employees, must have the requisite knowledge or intent. See 8 id. at 1251. 9 An employee cannot simply quit and sue, claiming that he was constructively discharged. See 10 King v. AC & R Advertising, 65 F.3d 764, 767 (9th Cir. 1995) (holding an employee was not 11 constructively discharged despite status change to at-will employee, reduced managerial responsibilities, 12 and restructured compensation package). Conditions giving rise to the resignation must be sufficiently 13 extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable 14 employee to remain on the job to earn a livelihood and to serve his employer. See Turner, 7 Cal. 4th at 15 1246, 1253–55 (rejecting plaintiff’s “attempt to weave unrelated and disjointed events together into an 16 insidious pattern” and finding no constructive discharge). Generally, single, trivial or isolated acts of 17 misconduct are insufficient to support a constructive discharge claim. See id. at 1247 (internal citations 18 omitted). A poor performance rating or a demotion, even when accompanied by reduced pay, does not 19 by itself trigger constructive discharge. See id. at 1255 (quoting Cole v. Fair Oaks Fire Protection Dist., 20 43 Cal. 3d 148, 160 (1987) (“In order to properly manage its business, every employer must on occasion 21 review, criticize, demote, transfer, and discipline employees”)); see also King, 65 F.3d at 767–69. 22 Here, Mr. Salazar resigned from Cargill on February 26, 2015. Salazar Decl. ¶ 11, Ex. 1. Mr. 23 Salazar testified that he thought his “days were counted, so [he] was forced to resign” when Cargill’s 24 Vice President purportedly asked Mr. Romero when he was going to fire Mr. Salazar. Salazar Dep. 25 66:1–6. Mr. Salazar did not receive a negative performance evaluation, which even then, would not 2 (id. at 66:15–18), which are likewise insufficient for constructive discharge. See Turner, 7 Cal. 4th at 3 1247 (“a poor performance rating or a demotion, even when accompanied by reduction in pay, does not 4 by itself trigger a constructive discharge”). While Mr. Salazar may have had reduced managerial duties, 5 the King court determined that reduced managerial duties were insufficient to establish constructive 6 discharge. See King, 65 F.3d at 768–69. Nothing in the parties’ evidence suggests Mr. Salazar suffered 7 intolerable or aggravated working conditions that would cause a reasonable employee to quit. 8 Therefore, this Court finds no triable issue of material fact regarding whether Mr. Salazar was 9 constructively discharged. Accordingly, constructive discharge cannot serve as the foundation for Mr. 10 Salazar’s discrimination, retaliation, and wrongful termination in violation of public policy claims. 11 D. Wrongful Termination in Violation of Public Policy 12 An employer generally does not have the right to terminate employment for a reason that 13 contravenes fundamental public policy as expressed in a constitutional or statutory provision. See 14 Turner, 7 Cal. 4th at 1252. Here, Mr. Salazar bases his wrongful termination claim on California Labor 15 Code section 1102.5, which prohibits employers from retaliating against employees for engaging in 16 protected conduct. See Cal. Lab. Code § 1102.5. Because the Court finds that summary judgment is not 17 proper on Mr. Salazar’s FEHA retaliation claim, summary judgment on his derivative claim is likewise 18 inappropriate. 19 E. Punitive Damages 20 Cargill argues that the Court should grant summary judgment on Mr. Salazar’s request for 21 punitive damages. Punitive damages are recoverable for FEHA violations. See Yeager v. Corrections 22 Corp. of Am., 944 F. Supp. 2d 913, 931 (E.D. Cal. 2013). A claim for punitive damages requires “clear 23 and convincing evidence that the defendant has been guilty of oppression, fraud or malice.” Cal. Civ. 24 Code § 3294. “This higher clear and convincing evidentiary standard applies at every stage of the 25 litigation process, including summary adjudication.” Adams v. Allstate Ins. Co., 187 F. Supp. 2d 1219, 2 Cargill moves for summary judgment on the basis that Mr. Salazar cannot sustain his prayer for 3 punitive damages. Mr. Salazar does not respond to Cargill’s argument regarding punitive damages. Mr. 4 Salazar’s failure to address how any of Cargill’s actions constitute “oppression, fraud or malice” is fatal 5 to his punitive damages claim. 6 Even assuming that Mr. Salazar established clear and convincing evidence to support punitive 7 damages, no reasonable jury could find that Mr. Romero—against whom Mr. Salazar bases his claims— 8 had broad authority over Cargill’s formal policies. See Yeager, 944 F. Supp. 2d at 931–32 (evidence 9 must demonstrate an individual was acting as managing agent of corporation with substantial 10 discretionary authority over decisions ultimately determining corporate policy). Accordingly, the Court 11 grants summary judgment as to Mr. Salazar’s punitive damages claims. 12 V. CONCLUSION AND ORDER 13 Cargill’s motion for summary judgment is GRANTED in part, and DENIED in part. Cargill’s 14 motion is GRANTED as to Mr. Salazar’s FEHA discrimination claims and request for punitive 15 damages. Cargill’s motion is DENIED as to Mr. Salazar’s FEHA retaliation claim and claim for 16 wrongful termination in violation of public policy. 17 18 IT IS SO ORDERED. 19 Dated: August 19, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 20 21 22 23 24 25