Nieto v. Precision Castparts Corp. CA2/1 ( 2016 )

Filed 2/8/16 Nieto v. Precision Castparts Corp. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
YVONNE NIETO, B259529
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC512248)
v.
PRECISION CASTPARTS
CORPORATION et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County. Richard
L. Fruin, Jr., Judge. Affirmed.
Law Offices of Maryann P. Gallagher and Maryann P. Gallagher for Plaintiff and
Appellant.
Bryan Cave and Julie E. Patterson for Defendants and Respondents.
_____________________________________
Yvonne Nieto appeals the superior court’s grant of summary judgment in favor of
Precision Castparts Corporation (Precision), Avibank Manufacturing, Incorporated
(Avibank), and other defendants (collectively defendants). Nieto claims a triable issue of
material fact remains as to whether defendants retaliated against her after she raised
concerns over possible wage and hour violations. We disagree and affirm.
We note that on appeal Nieto does not raise many of her claims before the trial
court, including whether human resources (HR) employees harassed her, defendants
knowingly distributed faulty airplane parts, and defendants permitted corrupt corporate
practices such as petty cash theft and misuse of corporate credit cards.
BACKGROUND
In 2008, Avibank, a subsidiary of Precision, hired Nieto as a senior payroll clerk.
According to Nieto, her main duties included ensuring the accuracy of employees’
reported “time and attendance” for paycheck purposes, ascertaining and applying
insurance deductions, and preparing paychecks. Nieto claims that from around 2008 to
2010, employees complained they were being cheated of overtime hours and wages.
Nieto gave credence to these complaints based on her experiences processing employees’
time logs as a payroll clerk. From her payroll work, Nieto knew defendants used a swipe
card clocking system to track employees’ hours. Typically, the time entries Nieto
processed for payroll purposes were entries created automatically by card swipes. Some
entries were manually entered by managers, however. Entries tended to be automatically
entered, however, because employees used their swipe cards to track their time and
Defendants could and would easily replace lost or missing time cards. Because Nieto had
this background, she concluded the rumors were true when she noticed at least one
complaining employee’s time log contained a large number of manual entries, which
suggested to her that managers were in fact manually editing employees’ time entries to
unfairly reflect less or no overtime.
Nieto testified she spoke to a manager and complained to two HR administrators
about the alleged missing overtime. According to her, defendants refused to adequately
2
address her complaints. After supposedly being ignored, Nieto took matters into her own
hands and paid at least one employee for overtime he claimed to have worked. That
employee supposedly told other employees to ask Nieto to do the same for them,
although it is unclear whether Nieto did.
In early March 2011, Nieto claims she sent Alejandro “Alex” Carrillo, Avibank’s
director of HR, and Celia Mejia, Avibank’s sister company’s (AVK) HR representative,
an e-mail regarding the complaining employee’s manual time entries and the overtime
violation implications. Nieto does not have a copy of this e-mail,1 and defendants say
they were unable to locate it during discovery, even with access to Nieto’s work e-mail
account. Nieto testified she never received a response to her e-mail, and defendants
produced no responses from Carrillo or Mejia. Nieto could not recall speaking in person
with Carrillo and Mejia about the e-mail.
Defendants did, however, produce an e-mail dated April 8, 2011, from Nieto to
Mejia, where Carrillo was not copied. Nieto wrote: “Celia, [In r]eference to [a particular
employee], I assume his supervisor fix [sic] his hours on for [sic] this Saturday. Did he
work this Saturday? If so my apologies I assumed he had fixed it. . . . Also doe[s] this
employee forget his badge or miss punches on a daily basi[s?] I have just notice[d] that
they are all manually entered[—]this can raise a concern for auditor. FYI.”
On March 30, 2011, Nieto received a formal written counseling statement from
Carrillo and Survesh Jith, Avibank’s controller. Carrillo and Jith described Nieto’s work
as inaccurate and inefficient. More specifically, they asserted Nieto failed to review key
deduction information for accuracy, which was part of her job, and had taken two weeks
to “complete a simple reconciliation [of] expected payroll deduction[s] vs. actual
deductions for 18 AVK salaried employees.” In addition, Nieto purportedly committed
1 Ina letter to Precision’s CEO regarding her various accusations, Nieto claimed to
have “e-mail[ed] proof to my own computer to protect myself,” including “forward[ing]
all evidence of what happened.” (Italics added.) It is unclear, however, exactly what
information she forwarded, where she forwarded this information, and why, if she had
forwarded all the evidence, she herself did not have a copy of the critical e-mail she
allegedly sent to Carrillo and Mejia.
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“numerous errors” regarding “employee pay information that continue to occur on an
ongoing basis.” Jith and Carrillo concluded the incidents “reflect[ed] Yvonne[’s] lack of
sense of urgency, poor standards of workmanship & unsatisfactory performance i[n]
performing her key responsibilities.” Nieto responded in writing, detailing why she
believed the counseling was unfounded and unfair.
On April 14, 2011, Nieto left work early. Defendants claim they were planning to
tell her at the end of her shift they had decided to “eliminate” her position because they
were installing ADP Enterprises software, which would render the majority of her tasks
duplicative and unnecessary, thereby making her position obsolete. Because Nieto left
early, defendants never informed her of their decision. After departing on the 14th, Nieto
began a workers’ compensation leave and did not return to work.
Nieto later applied for unemployment benefits, but the Employment Development
Department (EDD) denied her request on June 25, 2012. On July 3, 2012, Nieto
appealed that decision. In an attached letter, Nieto mentioned disputes among corporate
personnel and unaddressed allegations of defective airplane parts as the reasons she was
forced to leave Avibank; noticeably absent was any reference to overtime issues. A
California Unemployment Insurance Appeals Board (CUIAB) administrative law judge
(ALJ) reversed the EDD. Shortly thereafter, Avibank appealed the reversal. On
October 12, 2012, a second CUIAB ALJ upheld the first CUIAB ALJ.
On July 17, 2012, Nieto filed a complaint with the Department of Fair
Employment and Housing (DFEH), alleging defendants had retaliated against her, in part,
“for being a whistleblower” and she was “force[d] to leave Avibank due to anxiety &
depression.” As proof of her allegations, she attached a letter, dated eight days later,
July 25, 2012, to Precision’s CEO, Mark Donegan, where she identified herself as the
“former Sr. Payroll clerk at Avibank Mfg.”2 Under a section entitled “Timecards,” Nieto
claimed, “Employee timecards have been manipulated so that they won’t show overtime
2 The record also contains what appear to be other versions, or perhaps drafts, of
this letter which omit the word “former.”
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to please corporate.” The proof Nieto offered in the next sentence of this alleged
violation was that “[a]n asterisk next to the employee’s timecard shows when a change
has been made.” Presumably as evidence that these types of entries suggested timecard
tampering to cheat employees from overtime pay, Nieto claimed she sent “an e-mail to
Alex [Carrillo] and Celia [Mejia] right before I left in reference to an employee on the
AVK payroll.” Nieto concluded the section by warning that “[e]mployees who have
brought up problems that have occurred at the job to [a manager] were later given written
notice, fired or forced to leave. Employees are aware of this and do not ‘question
problem occurrences’ again.”3
As to the year that passed between her last day in the office and the letter, Nieto
claimed to have been prevented from raising the enumerated issues due to “major
migraines,” “lack of sleep,” and bad health. Although she professed to wishing she could
return to Avibank, she claimed there was no hope to do so because she was under
“attack” and was being forced out.
One year after filing her DFEH complaint, Nieto filed the instant complaint on
July 17, 2013, for three counts: (1) violation of whistleblower protections under Labor
Code section 1102.5;4 (2) wrongful constructive termination in violation of public policy;
and (3) intentional infliction of emotional distress (IIED). Defendants moved for
summary judgment. The court granted the summary judgment, reasoning, in part, that
Nieto failed to establish she submitted a protected report to a government agency or
participated in a protected action adverse to her employer. The court also found Nieto
failed to present substantial evidence of pretext or prove defendants constructively
discharged her. Finally, the court determined she had not demonstrated the “‘outrageous
conduct’” necessary to substantiate an IIED claim. Nieto appealed.
3 Nieto also advised, “You will probably need to speak to several employees to
obtain their stories & verification of specifics.”
4 Undesignated statutory references are to the Labor Code.
5
DISCUSSION
On appeal, Nieto contends we should reverse the summary judgment because
triable issues of fact remain as to whether defendants terminated or constructively
discharged her. We disagree and affirm.
We review a grant of summary judgment de novo. (Guz v. Bechtel National, Inc.
(2000) 24 Cal. 4th 317, 334.) That is, we consider “all of the evidence the parties offered
in connection with the motion (except that which the court properly excluded) and the
uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc.
(2001) 26 Cal. 4th 465, 476.) When considering all the evidence, we “‘view the evidence
in the light most favorable to the plaintiff[] . . .’ and ‘liberally construe plaintiff[’s]
evidentiary submissions and strictly scrutinize defendant[’s] own evidence, in order to
resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.’ [Citation.]”
(McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal. 4th 88, 96–97.)
“Under California’s traditional rules, we determine with respect to each cause of action
whether the defendant seeking summary judgment has conclusively negated a necessary
element of the plaintiff’s case, or has demonstrated that under no hypothesis is there a
material issue of fact that requires the process of trial, such that the defendant is entitled
to judgment as a matter of law.” (Guz, at p. 334.)
A three-part burden-shifting analysis applies in retaliation actions. (Patten v.
Grant Joint Union High School Dist. (2005) 134 Cal. App. 4th 1378, 1384 (Patten).)
First, the plaintiff has the burden to establish a prima facie case of retaliation. (Ibid.)
“To do that, a plaintiff must show (1) she engaged in a protected activity, (2) her
employer subjected her to an adverse employment action, and (3) there is a causal link
between the two.” (Ibid.) Second, the burden shifts to defendant to rebut the prima facie
showing by providing “a legitimate, nonretaliatory explanation for its acts.” (Ibid.)
Third, if the employer successfully demonstrates legitimacy, the burden shifts again to
the plaintiff to “show this explanation is merely a pretext for the retaliation.” (Ibid.)
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A. Defendants did not violate section 1102.5’s whistleblower protections
Nieto argues defendants improperly retaliated against her for blowing the whistle
on their alleged overtime and wage violations under section 1102.5, subdivision (b),
which protects disclosures to government agencies, and subdivision (c), which protects
refusal to participate in illegal activities.
1. Nieto failed to establish a prima facie case defendants retaliated against
her after she made a protected disclosure to a government agency under section
1102.5, subdivision (b)
Section 1102.5, subdivision (b) makes it illegal for an employer to “retaliate
against an employee for disclosing information . . . to a government or law enforcement
agency . . . the employee has reasonable cause to believe . . . discloses a violation of state
or federal statute . . . regardless of whether disclosing the information is part of the
employee’s duties.” (§ 1102.5, subd. (b).) A person claiming this statutory protection, as
a prerequisite, must have been an employee at the time of the alleged discrimination.
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal. 4th 260, 288.)
Nieto asserts she made a protected disclosure when she filed a complaint with
DFEH, alleging defendants retaliated against her for being a whistleblower by
constructively discharging her.
Defendants argue Nieto cannot claim protection under the statute because she was
not employed by Avibank when she filed her DFEH complaint. Nieto, on the other hand,
says a triable issue of material fact exists as to when she was constructively discharged
and a jury could find she was employed when she filed the complaint. We need not
decide this issue, however. Even assuming, in Nieto’s favor, Nieto was employed when
she filed the DFEH complaint and the complaint was a proper disclosure, she still cannot
make a prima facie case because she failed to show defendants subsequently retaliated
against her.
It is undisputed Nieto did not return to work after she left on April 14, 2011. “‘In
order to establish a constructive discharge, an employee must plead and prove, by the
usual preponderance of the evidence standard, that the employer either intentionally
7
created or knowingly permitted working conditions that were so intolerable or aggravated
at the time of the employee’s resignation that a reasonable employer would realize that a
reasonable person in the employee’s position would be compelled to resign.’” (Colores
v. Board of Trustees (2003) 105 Cal. App. 4th 1293, 1305, italics added.) To establish
such “intolerable or aggravated” working conditions, Nieto cannot point to defendants’
actions that occurred prior to her leave, for example, her counseling from Carrillo and
Jith or Avibank’s plan to eliminate her position, because these occurred more than a year
before she filed her complaint. (Ibid.) Logically speaking, antecedent events cannot be
retaliatory.
Although it is conceivable that an employer could create “intolerable or
aggravated” working conditions during a period of an employee’s absence from his or her
employment after a government complaint was filed such that an employee could not
reasonably be expected to return, Nieto did not argue or prove such conditions here. That
is, she did not argue that while she was on leave, defendants created such an “intolerable
or aggravated” atmosphere in her absence that was different from when she left because
she filed the DFEH complaint that she could not return to work. (Turner v. Anheuser-
Busch, Inc. (1994) 7 Cal. 4th 1238, 1249–1250 (Turner) [an “employer must either
deliberately create the intolerable working conditions . . . or, at a minimum, must know
about them and fail to remedy the situation”].) Instead, Nieto argued “she was
constructively discharged after she filed a claim for unemployment and she received a
decision in her favor.” This argument is unconvincing, however, because it again fails to
address what retaliatory action defendants took subsequent to the DFEH filing such that
Nieto was unable to return to work. Any suggestion that defendants’ opposition to
Nieto’s receiving unemployment is retaliation is unavailing: defendants had a right to
argue against the EDD’s determination Nieto was unemployed and, if anything, showed
they believed Nieto was still an employee who may return to work. (See generally
Williams v. Taylor (1982) 129 Cal. App. 3d 745, 753–754 (Williams) [protecting even
potentially slanderous statements an employer made to the EDD as “absolutely
8
privileged” because an opposite rule would prohibit important communication and
expose the speaker to “a risk of liability for libel”].)5
We do not consider Nieto’s references to the CUIAB decision, indicating she was
constructively discharged under Unemployment Insurance Code section 1960, which
explicitly prevents findings or evidence submitted in a CUIAB proceeding to be used in
subsequent legal proceedings. Section 1960 provides, in pertinent part: “Any finding of
fact or law . . . made by a[n] . . . administrative law judge . . . in any action or proceeding
before the appeals board . . . shall not be used as evidence in any separate or subsequent
action or proceeding . . . brought before a[] . . . court or judge of this state.” This is
because, in part, CUIAB ALJ’s “‘are not bound by common law or statutory rules of
evidence, or by technical or formal rules of procedure,’” and the parties do not have the
same incentives to litigate as they would at trial. (Kurz v. Syrus Systems, LLC (2013) 221
Cal. App. 4th 748, 763.)
2. Nieto failed to demonstrate she engaged in protected action under
section 1102.5, subdivision (c)
Section 1102.5, subdivision (c) makes it illegal for an employer to “retaliate
against an employee for refusing to participate in an activity that would result in a
violation of state or federal statute.” (§ 1102.5, subd. (c).)
Nieto asserts she refused to participate in “masking” defendants’ overtime and
wage violations by refusing to process illegally altered timecards and defendants
retaliated by improperly writing her up and unnecessarily eliminating her position. She
also argues she was retaliated against by constructive discharge after she complained by
letter to Precision’s CEO.
5To this point, we will not impute the EDD’s initial action denying Nieto
unemployment to Avibank because Avibank had no control over the independent
governmental proceedings or their outcome. (Turner, supra, 7 Cal.4th at p. 1244
[“Constructive discharge occurs when the employer’s conduct effectively forces an
employee to resign” italics added].)
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a. Nieto failed to present sufficient admissible evidence to create a
triable issue of material fact, at the prima facie stage, that she was engaged in a
protected activity
i. Nieto’s declaration does not demonstrate she engaged in
protected activity
To support her protected activity claim, Nieto first cites to her declaration.
Paragraph 1 contains no evidence as it is simply a statement of personal knowledge.
Paragraphs 2 and 3 relate to issues not on appeal. We therefore do not consider the first
three paragraphs. Paragraph 4 states: “One of the major issues I was seeing was that
managers were manually changing employees[’] time records to deprive them of
overtime. [F]or example, [i]f an employee punched in at 8:30 and worked an extra hour,
the manger would change the punch in time to 9:30 so that the employee would not get
overtime.”
Nieto’s deposition testimony, however, exposed her lack of personal knowledge to
make this statement. Nieto did not “see” managers change employees’ time entries to
cheat them out of overtime, as she claims. Rather, she had heard rumors employees
suspected this was occurring and gave credence to those rumors because she saw manual
entries on certain employees’ time logs, which could be consistent with such a practice.
While Nieto testified she told one supervisor not to alter employees’ timecards to exclude
overtime, she offered no evidence she investigated the allegations to substantiate them
and confirm the manual entries were not innocent. Nieto was also not involved in a
formal investigation into the allegations and, at most, heard only bits of information
about the investigation’s preliminary findings secondhand from Cardenas, the
investigator. Nieto also admitted she never verified whether the employees had actually
worked the overtime they claimed they did.
Further, although not required, Nieto failed to present even one time log or any
analysis of a time log in the record which would show illegal tampering. (See generally
Green v. Ralee Engineering Co. (1998) 19 Cal. 4th 66, 87 [employees “need not prove an
actual violation of law” because “reporting” “‘reasonably based suspicions’” of illegal
10
activity suffices].) Nieto’s conclusory and unfounded statement will not be considered
evidence she refused to participate in illegal activity when her deposition testimony
showed she had no objective evidence to reasonably believe the activity was illegal.
(Evid. Code, § 702 [“the testimony of a witness concerning a particular matter is
inadmissible unless he has personal knowledge of the matter”]; Jacobs v. Fire Ins.
Exchange (1995) 36 Cal. App. 4th 1258, 1270 (Jacobs), citing D’Amico v. Board of
Medical Examiners (1974) 11 Cal. 3d 1, 21–22 [“A court may disregard a declaration,
prepared for purposes of a summary judgment motion, which conflicts with deposition
testimony of the declarant”].)
Nieto then states in paragraph 5: “Employees were coming to me because their
managers were refusing to help correct this illegal practice so I would correct it for them
to make sure they got paid the correct amount.” Again, Nieto admitted she had no
personal knowledge of managers “refusing to help” employees “correct” the “illegal
practice” of cheating them out of their overtime, and we therefore disregard that portion
of her statement. (Evid. Code, § 702; Jacobs, supra, 36 Cal.App.4th at p. 1270.) As for
Nieto “correcting” overtime “errors,” she admitted she did not verify whether the workers
had actually worked the hours they claimed or whether the manual entries were improper.
We therefore likewise do not consider the statement as evidence Nieto refused to
participate in an illegal activity or acted adversely to defendants. (Evid. Code, § 702;
Jacobs, supra, 36 Cal.App.4th at p. 1270.)
In paragraph 6, Nieto states: “The managers were under pressure to keep overtime
costs down.” As a payroll clerk, Nieto would have no personal knowledge of corporate
executives pressuring supervisors, who worked in a different sector of the company in a
different building, to keep overtime costs down. Nieto presented no evidence showing
she had personal knowledge of such a fact, and we therefore disregard this speculative
statement. (Evid. Code, § 702.)
In paragraph 7, Nieto claims she “confronted her superiors” about the alleged
overtime violations by sending an e-mail to Carrillo and Mejia. But, even by Nieto’s
own account of this missing e-mail, she did not engage in a protected activity. In her
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declaration, Nieto described the e-mail as “telling” Carrillo and Mejia “that I had seen an
alarming number of manual changes for one certain employee (this deprived the
employee of overtime pay) and that this had been ongoing for a long time, and this
should not be happening.” Again, Nieto admitted in her deposition she did not actually
know whether the manual changes “deprived the employee of overtime pay.” She
testified she did not know whether the employee’s time was being edited (as opposed to
simply manually input), and she had no way to know whether the employee was actually
working the overtime hours he claimed. Like her other unfounded statements, we
disregard Nieto’s claim the manual time entries “deprived the employee of overtime pay”
for lack of personal knowledge. (Evid. Code, § 702; Jacobs, supra, 36 Cal.App.4th at
p. 1270.)
As for the remainder of the statement, merely “telling” Carrillo and Mejia she
“had seen an alarming number of manual changes for one certain employee” “for a long
time” and “this should not” happen is alone insufficient to demonstrate Nieto engaged in
a protected activity. Her duties as a payroll clerk would include alerting her superiors to
the fact that there may be an error in the measure used for paying employees.
“‘[D]iscussion of an action that someone might consider to be a violation of a law, rule or
regulation’” does not automatically create a whistleblower cause of action because
“‘[d]iscussion among employees and supervisors concerning various possible courses of
action is healthy and normal in any organization. It may in fact avoid a violation.’”
(Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal. App. 4th 832, 859–
860, italics omitted.) Insofar as it can be instructive, the potentially responsive e-mail
defendants produced speaks to this point. In the e-mail, Nieto simply asks, “doe[s] this
employee forget his badge or miss punches on a daily basi[s?],” and then adds, “I have
just notice[d] that” the time entries “are all manually entered[—]this can raise a concern
for auditor. FYI.” This type of language, on its own, does nothing more than show Nieto
raised a potential payroll issue, which was within the scope of her duties to do so.
Tellingly, she also stated she “assume[d]” the employee’s supervisor had “fixed” his
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hours, not that she believed the supervisor illegally tampered with the employee’s time.
(Italics added.)
Paragraphs 8 through 11 of Nieto’s declaration do not contain any claims and
therefore are not considered in this portion of the analysis.
ii. Ramiro’s and Cardenas’s declarations likewise do not
demonstrate Nieto engaged in protected activity
In addition to her declaration, Nieto also offered declarations of two others:
Ferdinand Ramiro and Lucy Cardenas. Ramiro’s declaration generally contains a
description of how he believes he was being cheated of overtime, and only one paragraph
concerns Nieto. That paragraph states: “I . . . asked Yvonne Nieto for help in getting
paid the overtime hours I had worked. I told Ms. Nieto the issue I was having and she
would ask me how many hours of overtime were missing from my check. She then took
action to make sure that I was properly paid for the overtime hours that I had worked.
This occurred at least three times. I then instructed my co-workers to call Ms. Nieto if
they had problems with getting paid for the amount of overtime hours they had worked.”
Ramiro’s statement does not show Nieto engaged in a protected activity; all his statement
shows is that Nieto aided him in being paid for overtime hours he claimed he worked. It
also does not show Nieto helped any employees beyond Ramiro as Ramiro simply says
he told others to seek Nieto’s help.
Cardenas’s declaration describes how she was asked to investigate the overtime
violation allegations. Cardenas says she asked Nieto during her investigation whether
Nieto could create “another shift schedule,” presumably to alleviate the problem of
managers’ manual time entries. Nieto took no action in response to this inquiry because,
according to Nieto, she told Cardenas “a new schedule [wa]s not going to help” because
she had “tried already” and “still supervisors [we]re changing” employees’ “time.” This
statement does not show Nieto engaged in protected activity because Cardenas said Nieto
took no action and, if anything, shows Nieto failed to act when she could have during a
formal investigation into the matter. Cardenas’s declaration contains only one other
statement regarding Nieto. Like the trial court, we disregard the statement that a night
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shift supervisor told Cardenas that Nieto “was asking” him about the overtime issue and
“complaining too much because I’m changing employee[s’] time but this is what we have
to do;” Nieto submits this out-of-court statement to prove the truth of her claim that she
tried alerting the company to the claimed overtime fraud and we therefore disregard it as
hearsay without an exception.
b. Nieto also failed to show defendants’ actions were retaliatory or
causally connected to her actions
Even assuming Nieto’s action in “correcting” overtime “violations” was adverse to
defendants, Nieto failed to show the actions defendants subsequently took against her
were retaliatory or causally connected to her actions.
i. Nieto offers no evidence defendants retaliated against her
after her letter to Precision’s CEO
Nieto argues her letter to Precision’s CEO, which included allegations of
overtime violations, is a protected activity. Even construing the facts in Nieto’s favor and
assuming this was the case, Nieto offered no evidence defendants retaliated against her
after Precision’s CEO received the letter. The parties agree Nieto sent her letter in July
2012, after she stopped working for Avibank in April 2011. As discussed above, Nieto
did not sufficiently argue or present evidence that defendants retaliated against her,
including by constructively discharging her, after she left. Because Nieto can show no
retaliatory action, her letter does not support her prima facie case.
ii. Performance counseling does not constitute retaliation
Employment counseling alone does not rise to the level of retaliation. (Turner,
supra, 7 Cal.4th at p. 1255 [“a single negative performance rating does not amount to a
constructive discharge”].) It is necessary for businesses like Avibank to counsel and
discipline its employees to be able to efficiently operate, and courts consequently protect
such practices. (Soules v. Cadam (1991) 2 Cal. App. 4th 390, 401 [safeguarding
employers’ right to “‘review, criticize, demote, transfer, and discipline employees’”
without automatically placing them at risk of acting in retaliation].) Carrillo and Jith’s
counseling statement, regarding Nieto’s inefficiency and inaccuracy, does not otherwise
14
appear to be “‘manifestly unfair, outrageous, harassment, or intended to cause emotional
disturbance resulting in disability.’” (Ibid., quoting Cole v. Fair Oaks Fire Protection
Dist. (1987) 43 Cal. 3d 148, 160.) Such a counseling statement, which required no
disciplinary action, does not rise to the level of requisite retaliation because “criticism” of
“job performance—even if alleged to be unfair or outrageous—. . . does not create the
intolerable working conditions necessary to support a claim of constructive discharge.”
(Soules, at p. 401.) To hold otherwise “‘would thrust the judiciary into micromanaging
employment practices and create a legion of undeserving protected “whistleblowers”
arising from the routine workings and communications of the job site. [Citation.]’”
(Mueller v. County of Los Angeles (2009) 176 Cal. App. 4th 809, 822, quoting Patten,
supra, 134 Cal.App.4th at p. 1385.)
iii. Ramiro’s and Cardenas’s declarations describe actions
too remote in time to be considered causally connected to defendants’ actions
The actions described in Ramiro’s and Cardenas’s declarations are too remote to
be considered causally connected to the allegedly retaliatory actions which occurred in
2011. Cardenas described conversations about the overtime issues occurring between
2007 and 2009, and stated she was terminated in 2009. Similarly, Ramiro’s declaration
discussed events which occurred between 2007 and early 2010. Jith was hired in October
2010 and Carrillo was not hired until 2011. Nieto presented no evidence Carrillo or Jith
even knew about these conversations. As such, without an elucidating explanation to the
contrary from Nieto, these events are too remote in time to be considered causally
connected to defendants’ alleged retaliatory actions. (Morgan v. Regents of the
University of California (2000) 88 Cal. App. 4th 52, 69 [an employer’s “‘“adverse
action”’” must follow “‘“within a relatively short time”’” after the protected activity
occurs].)
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iv. Nieto fails to demonstrate defendants’ decision to
eliminate her position was causally connected to her actions concerning the alleged
overtime violations
Defendants claim they were planning to eliminate Nieto’s position because they
were adopting a new software system which would render the majority of Nieto’s
position obsolete.6 Defendants additionally claim Nieto failed to take opportunities they
gave her to develop new skills that would make her valuable beyond the functions taken
over by the software and they were planning to hire a “financial analyst” who would be
able to perform functions more complex than the software performed. Nieto argues this
explanation is a pretext for defendants’ real motivation to force her out because she was
going to expose and fight against their alleged overtime violations.
Nieto fails, however, to demonstrate a causal nexus between this allegedly
retaliatory action and her claimed protected actions. (Patten, supra, 134 Cal.App.4th at
p. 1384.) Nieto says the fact that defendants did not eliminate the payroll position after
she left demonstrates the reason behind eliminating the position (and therefore firing her)
is pretext. Defendants testified, however, that there was no need to officially eliminate
Nieto’s position because after Nieto left work and did not return, they installed the
software and hired a financial analyst. Defendants also claim, and Nieto does not
disagree, that Jith, who decided to eliminate the payroll clerk position, may not have even
known about Nieto’s alleged e-mail to Carrillo and Mejia. Nieto produced no other
evidence demonstrating a causal nexus between the unimplemented decision to eliminate
her position and her e-mail or any other action she took. As such, she failed to establish a
prima facie case defendants retaliated against her for engaging in a protected action.
B. Defendants did not constructively discharge Nieto in violation of public policy
On appeal, Nieto’s argument for constructive discharge in violation of public
policy is boiled down to one sentence stating that the discharge cause of action “arises
6Perplexingly, defendants did not offer a scintilla of evidence to support this
claim other than two declarations.
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from the same facts as” the whistleblower cause of action and because “the trial court
improperly granted summary judgment on the entire complaint, the ruling should be
reversed as to all causes of action.” Unfortunately for Nieto, we agree with the trial
court’s decision regarding the whistleblower cause of action. In any event, courts have
held that a constructive discharge in violation of public policy claim fails when it is based
on the same facts as a failed section 1102.5 claim. (See, e.g., Love v. Motion Industries,
Inc. (2004) 309 F. Supp. 2d 1128, 1135 [where a section 1102.5 claim failed, so did a
public policy claim].) In light of Nieto’s agreement that the failed whistleblower cause of
action and the discharge cause of action arise from the same set of facts, we decline to
overturn the summary judgment.
C. Nieto’s claim is time barred
Nieto’s IIED claim is time barred because she brought her action on June 17,
2013, more than two years after she left Avibank in March 2011. (Code Civ. Proc.,
§ 335.1 [personal injury claims must be brought within two years].) On appeal, Nieto
herself limited the scope of defendants’ actions we should consider for the IIED cause of
action to those that also underlie the whistleblower claim. The offending actions, as
discussed above, all occurred prior to Nieto leaving Avibank in 2011. The only possible
action of defendants we could consider which occurred after Nieto left Avibank in 2011
is defendants’ opposition to Nieto’s unemployment claim. Again, defendants had a right
to oppose Nieto’s claim and Nieto does not argue anywhere that defendants’ conduct
during this proceeding “‘exceed[ed] all bounds usually tolerated by a decent society.’”
(See generally Williams, supra, 129 Cal.App.3d at pp. 753–754; Cole v. Fair Oaks Fire
Protection Dist., supra, 43 Cal.3d at p. 155, fn. 7.) We do not consider this a ground for
Nieto’s IIED claim, and the claim is therefore time barred.
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DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal under
California Rules of Court, rule 8.278.
NOT TO BE PUBLISHED.
LUI, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.
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