Ingrande v. Home Depot. CA4/1 ( 2016 )

Filed 2/29/16 Ingrande v. Home Depot. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MICHAEL INGRANDE, D066532
Plaintiff and Appellant,
v. (Super. Ct. No.
37-2012-00092898-CU-WT-CTL)
HOME DEPOT U.S.A., INC.,
ORDER MODIFYING OPINION
Defendants and Respondents.
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on February 23, 2016, be modified as
follows:
1. On page 1, in the counsel listing for Defendants and Respondents, "Akin Gump
Strauss Hauer & Feld and Rex S. Heinke" is added so the sentence reads:
"Ogletree, Deakins, Nash, Smoak & Stewart, Michael J. Sexton, James T. Conley,
Christian A. Hickersberger; Akin Gump Strauss Hauer & Feld and Rex S. Heinke for
Defendants and Respondents.
There is no change in the judgment.
McDONALD, Acting P. J.
Copies to: All parties
2
Filed 2/23/16 Ingrande v. Home Depot CA4/1 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MICHAEL INGRANDE, D066532
Plaintiff and Appellant,
v. (Super. Ct. No.
37-2012-00092898-CU-WT-CTL)
HOME DEPOT U.S.A., INC.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Affirmed in part and reversed in part.
Mirch Law Firm, Kevin J. Mirch, Marie C. Mirch and Erin E. Hanson for Plaintiff
and Appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, Michael J. Sexton, James T. Conley
and Christian A. Hickersberger for Defendants and Respondents.
Plaintiff Michael Ingrande was employed by defendant Home Depot U.S.A., Inc.
(Employer) for more than 22 years, rising to the position of assistant store manager,
before his employment was terminated by Employer in 2011. Employer's stated reason
for terminating Ingrande's employment was that he violated rules governing safe
operations for Employer's stores by either directing or knowingly permitting an employee
under his supervision to enter a trash compactor despite warning signs against entry and
the risks to the employee posed by that conduct. Ingrande disputed his employment was
terminated for that incident. Instead, his lawsuit claimed Employer terminated his
employment without cause, in violation of his implied contractual rights, and/or because
of his age and/or gender and/or as retaliation for his "whistle blowing" in violation of
public policy, asserting the stated reason for Employer's decision to terminate his
employment (the trash compactor incident) was pretextual. He also alleged claims for
fraud, unpaid wages, slander and libel (as against both Employer and several named
individual defendants), and sought punitive damages.
Employer, and the individually named defendants, moved for summary judgment
on all of Ingrande's pleaded claims and alternatively sought summary adjudication on
each claim. Ingrande opposed the motion, asserting triable issues of material fact
precluded summary judgment. The trial court entered summary judgment against
Ingrande, and this appeal followed.
2
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background1
The Employment Contract and Work Standards
When Ingrande applied for employment with Employer in 1988, the application he
signed expressly provided his employment would be "at-will" and could be terminated by
either party at any time, for any reason, without notice or cause. The Employee's
Handbook issued by Employer, which Ingrande affirmatively alleged was binding,2 also
explicitly stated his employment was "at-will."
At the time he was hired, Ingrande underwent an orientation at which Employer's
policies and procedures were explained to him. Employer's "Code of Conduct" included
guidelines describing conduct that would constitute a "Major Work Rule Violation,"
among which were "[a]ssigning work that places associates at risk of serious harm . . .
whether or not such harm or damage occurs," or "knowingly allowing associates to
perform work or assignments under unsafe conditions," or "directing any associate to
1 The facts we recite are drawn from Employer's separate statement of undisputed
material facts. Although Ingrande's opposition to Employer's summary judgment motion
claimed these facts were "disputed," our review of the record confirms he did not dispute
the factual statements, but only claimed other facts undermined the legal impact of the
facts on which Employer relied.
2 Ingrande's third amended complaint apparently alleged he and Employer were
bound by the employee handbook. Although he deleted that allegation from the fourth
amended complaint (FAC), the operative iteration of his complaint at which the summary
judgment motions were directed, the deletion did not relieve Ingrande of that judicial
admission. (See generally Thurman v. Bayshore Transit Management, Inc. (2012) 203
Cal. App. 4th 1112, 1157-1158.)
3
violate company safety standards." These "Major Work Violations" would normally
subject the offender to employment termination for a first offense.
Employer also had written "Critical Operating Safety Standards" that included the
admonition "[n]ever enter or reach into the compactor for any reason." Those same
standards reiterated that "directing any associate to violate company safety standards,"
including "[e]ntering the compactor for any reason," constituted a "Major Work
Violation" normally subjecting the offender to employment termination for a first
offense.
The Termination
On the evening of February 18, 2011, Ingrande was the assistant store manager for
a Home Depot store in San Diego, California. That evening, Ingrande called Mr. Peralta
(the store manager) and told Mr. Peralta that an hourly employee, Mr. Jones, had gone
into the trash compactor at the store ("the trash compactor incident"). Peralta reported the
trash compactor incident to Mr. Campeau, the manager for Employer's "Associate Advice
and Counsel Group" (AACG). The AACG consults with district and/or regional staff
about, and provides recommendations concerning, potential discipline. After an
investigation by Campeau concerning the incident,3 including Campeau's review of
photographs and a video depicting the incident and his review of the written statements
from Jones and Ingrande about the incident that appeared to be consistent with the video
3 In opposing the motion for summary judgment, Ingrande did not contest the fact of
the investigation by Campeau, but instead claimed the investigation as conducted by
Campeau was inadequate.
4
depiction of the incident, Campeau concluded that (at a minimum) Ingrande knowingly
permitted Jones to enter the trash compactor, and may have affirmatively instructed or
asked Jones to enter the trash compactor.
Based on his review of the incident, Campeau concluded Ingrande violated
Employer's workplace safety rules and recommended Ingrande's employment be
terminated.4 On February 24, 2011, Campeau discussed his findings and
recommendations with Danielle Tillman (the regional human resources director for the
Pacific South region). Tillman concurred that termination of Ingrande's employment was
appropriate.
Employer's records indicate that, on March 1, 2011, Ingrande contacted the AACG
department to ask about discipline for entering a trash compactor. He spoke with Ms.
Quattlebaum, who told Ingrande it was a major violation subject to employment
termination for a first offense. Employer's records also indicate, later that day, Ingrande
called back to the AACG department and told Employer he was taking a medical leave of
absence due to stress.5 When Ingrande returned from his leave of absence on April 25,
2011, Employer informed him his employment was to be terminated.
4 Campeau found Jones also violated safety rules. Campeau concluded that,
although Jones (an hourly associate) could also have been discharged for this violation, a
"final counseling" should be issued to Jones under the circumstances.
5 The records of Ingrande's March 1 calls indicate he expressed concerns that a
Mr. Powers did not like Ingrande's performance and Ingrande was concerned his
employment would be terminated, but those records contain no indication Ingrande raised
concerns about discrimination, harassment, retaliation, or safety violations at his store.
5
B. The Lawsuit
Ingrande filed this action against Employer and the other defendants alleging a
variety of factual claims and legal theories. However, the overarching theory of
Ingrande's complaint appears to have been that his job performance made him a threat to
one of his superiors (Mr. Powers) because (1) Ingrande's exceptional job performance
made him a potential competitor to Powers for job promotions and (2) Ingrande's
complaints about safety violations would have harmed Powers's stature because
remedying those violations could reduce the profitability of stores under Powers's
supervision. Ingrande alleged Powers and others began a smear campaign directed at
undermining his position with Employer, including falsely attributing responsibility for
the trash compactor incident to Ingrande, and falsely claiming he was a violent person
who had assaulted or threatened others. Ingrande asserted his employment was
terminated without cause because he did not direct or knowingly permit Jones to violate
safety standards, and any evidence supporting that claim was manufactured to justify his
employment termination. He also alleged Employer fired him because Employer wanted
to replace him with someone both younger than Ingrande and female.
The factual allegations contained in Ingrande's fourth amended complaint (FAC)
formed the basis for 11 causes of actions. The first cause of action, for breach of implied
contract, essentially alleged Employer's conduct and policies gave rise to an implied
obligation it would not terminate Ingrande's employment without adequate cause and that
the facts on which it based its decision to terminate Ingrande's employment did not
6
constitute adequate cause because he did not violate Employer's standards of conduct.
Ingrande's seventh through 11th causes of action essentially alleged Employer harassed
Ingrande and terminated his employment in violation of public policy, including (1)
harassing and terminating him in retribution for exposing Employer's improper or
unlawful conduct (seventh through ninth causes of action), (2) terminating him because
of his age (seventh and 10th causes of action), and (3) terminating him because of his
gender (11th cause of action).
Ingrande also alleged several tort claims. The second and third causes of action,
sounding in fraud, alleged Employer made numerous representations as to the advantages
of working for Employer on which Ingrande relied, but these representations were false
and caused injury to Ingrande. The fourth and fifth causes of action, sounding in
defamation, alleged Employer and several individual defendants made numerous false
and injurious statements (both orally and in writing) impugning Ingrande's conduct and
character. Ingrande also asserted a wage claim alleging Employer was required to, but
did not, pay him for overtime.
C. The Summary Judgment Motion and Rulings
Employer moved for summary judgment or, in the alternative, summary
adjudication as to each claim contained in Ingrande's FAC. By separate motion, the
individual defendants moved for summary judgment or (in the alternative) summary
adjudication on the libel and slander claims. Ingrande filed opposition to both motions,
7
asserting triable issues of fact precluded summary adjudication on any of his claims, and
therefore necessarily precluded entry of summary judgment.
Ruling on Individual Defendants' Motion
The court, after sustaining numerous evidentiary objections by defendants to the
evidence proffered by Ingrande in opposition to the summary judgment motions,6
granted summary judgment in favor of the individual defendants on Ingrande's claims for
libel and slander. The court noted the individual defendants' motion argued (1) Ingrande
did not have admissible evidence supporting his pleaded defamation claims, (2) many of
the pleaded defamatory statements were true and/or privileged, and (3) Ingrande had no
evidence of malice. The court then found Ingrande's opposition, which "relies in large
measure on the allegations of his complaint, general statements by unidentified and
unspecified declarants, unsupported argument and purported evidence in his points and
authorities, and on Rifkind v. Superior Court (1994) 22 Cal. App. 4th 1255," did not create
a triable issue of material fact as to any of the individual defendants' undisputed facts.
After explaining the inapplicability of Rifkind, the court concluded Ingrande's showing
was inadequate to defeat the showing by the individual defendants that the defamation
6 On appeal, Ingrande makes no claim any of the evidentiary rulings was erroneous,
and we therefore may disregard all of the evidence as to which the objections were
sustained in our assessment of whether the order granting summary judgment was proper.
8
claims were without merit, and granted the individual defendants' summary judgment
motion.7
Employer's Motion
The court next examined Employer's motion for summary judgment, and again
concluded Employer met its initial burden of demonstrating the undisputed facts
warranted judgment against Ingrande on his pleaded claims, and his opposition did not
create a triable issue of material fact as to any of the undisputed facts on which
Employer's motion for summary judgment was premised.8 The court granted summary
adjudication in favor of Employer on each of the 11 causes of action stated against it and,
because those rulings disposed of the entirety of the action as against Employer, the court
ordered the complaint dismissed. Following Ingrande's unsuccessful motion for
reconsideration, the court entered judgment in favor of Employer and the individual
defendants, and Ingrande timely appealed.
7 The court also granted Employer's motion for summary adjudication on the
defamation claims. Employer argued the undisputed facts showed Employer could only
be vicariously liable for the statements of the individual defendants and, because
summary adjudication of the claims against the individual defendants was warranted,
Employer was also entitled to summary adjudication insofar as Ingrande's alleged
defamation claims against Employer derived from the statements of the individual
defendants.
8 Because Ingrande challenges most of the court's rulings in this appeal, we
separately detail the showings below on each cause of action, and rulings thereon, when
evaluating Ingrande's appellate claims as to those separate causes of action.
9
II
LEGAL FRAMEWORK
"The purpose of the law of summary judgment is to provide courts with a
mechanism to cut through the parties' pleadings in order to determine whether, despite
their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal. 4th 826, 843.) "A trial court properly grants summary
judgment where no triable issue of material fact exists and the moving party is entitled to
judgment as a matter of law. [Citation.] . . . In the trial court, once a moving defendant
has 'shown that one or more elements of the cause of action, even if not separately
pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of
a triable issue; to meet that burden, the plaintiff 'may not rely upon the mere allegations
or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a
triable issue of material fact exists as to that cause of action . . . .' " (Merrill v. Navegar,
Inc. (2001) 26 Cal. 4th 465, 476-477.) Code of Civil Procedure section 437c, subdivision
(o), provides that a cause of action has no merit if: (1) one or more elements of that cause
of action cannot separately be established; or (2) a defendant establishes an affirmative
defense to that cause of action. A defendant need not conclusively negate an element of
the plaintiff's cause of action, but must only show that one or more of its elements cannot
be established. (Aguilar, at p. 853.) "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."
10
(Id. at p. 850, fn. omitted.) Although "the court may not weigh the plaintiff's evidence or
inferences against the defendants' as though it were sitting as the trier of fact, it must
nevertheless determine what any evidence or inference could show or imply to a
reasonable trier of fact." (Id. at p. 856.) "If [the] party moving for summary judgment
. . . would prevail at trial without submission of any issue of material fact to a trier of fact
for determination," the motion should be granted. (Id. at p. 855.)
"On appeal after a motion for summary judgment has been granted, we review the
record de novo, considering all the evidence set forth in the moving and opposition
papers except that to which objections have been made and sustained." (Guz v. Bechtel
National, Inc. (2000) 24 Cal. 4th 317, 334 (Guz).) "On appeal, we exercise 'an
independent assessment of the correctness of the trial court's ruling, applying the same
legal standard as the trial court in determining whether there are any genuine issues of
material fact or whether the moving party is entitled to judgment as a matter of law.'
[Citation.] 'The appellate court must examine only papers before the trial court when it
considered the motion, and not documents filed later. [Citation.] Moreover, we construe
the moving party's affidavits strictly, construe the opponent's affidavits liberally, and
resolve doubts about the propriety of granting the motion in favor of the party opposing
it.' " (Seo v. All-Makes Overhead Doors (2002) 97 Cal. App. 4th 1193, 1201-1202.)
11
III
CLAIMS AGAINST INDIVIDUAL DEFENDANTS
A. Background and Ruling
Ingrande's claims against the individual defendants for defamation asserted these
defendants stated, either orally (the fourth cause of action for slander) or in writing (the
fifth cause of action for libel), that (1) Ingrande was having sexual relations with an
employee, independent contractor or customer; (2) Ingrande had a violent temper, carried
a concealed weapon, was dangerous, and an armed security guard had been hired to
protect associates against potential harm; (3) Ingrande "must have been on drugs"; and
(4) Ingrande did not enforce Employer's safety rules and regulations. Ingrande also
claimed they made false statements about him in his performance reviews.
In their motion for summary judgment on the defamation claims, the moving
individual defendants, in their separate statement of undisputed material facts,
demonstrated one of the specified statements (that Ingrande was having sexual relations
with an independent contractor) was true, and Ingrande's opposition to the motion
conceded the statement was true. The moving individual defendants, in their separate
statement of undisputed material facts, also cited Ingrande's admissions in his deposition
that he had no competent evidence the remaining statements had been uttered by any of
the individual defendants, and Ingrande's opposition to the motion apparently failed to
rebut this showing.
12
The court granted summary judgment in favor of the individual defendants on
Ingrande's claims for libel and slander. The court found the individual defendants met
their initial burden of demonstrating (1) Ingrande did not have admissible evidence
supporting his pleaded defamation claims, (2) many of the pleaded defamatory statements
were true and/or privileged, and (3) Ingrande had no evidence of malice. The court then
found Ingrande's opposition did not create a triable issue of material fact as to any of the
individual defendants' undisputed facts and, because his showing was inadequate to
defeat the showing by the individual defendants that the defamation claims against the
individual defendants were without merit, the court granted the individual defendants'
summary judgment motion.
B. Analysis
On appeal, Ingrande's brief is devoid of any effort to demonstrate what triable
issue of material fact existed as to whether the defamatory statement regarding Ingrande's
sexual relations with an independent contractor was untrue, and Ingrande has not
attempted to show triable issues of material facts existed as to whether the individual
defendants actually made the remaining specified defamatory statements. Accordingly,
we conclude any claim of error regarding entry of summary adjudication as to Ingrande's
claims, insofar as the claims rested on the identified defamatory statements, is waived.9
9 Even though our review is de novo, it is limited to issues adequately raised and
supported in appellants' briefs. (See Reyes v. Kosha (1998) 65 Cal. App. 4th 451, 466, fn.
6.) We begin with the presumption the judgment appealed from is correct (Denham v.
Superior Court (1970) 2 Cal. 3d 557, 564) and adopt all intendments and inferences to
affirm the judgment unless the record expressly contradicts them. (See, e.g., Brewer v.
13
Ingrande instead limits his argument on appeal to the claim that entry of summary
adjudication on the libel and slander claims was improper because his defamation claims
pleaded defamatory statements by the individual defendants not addressed when the
individual defendants moved for summary judgment, and summary adjudication is
improper when it does not completely dispose of a cause of action. We reject Ingrande's
claim, for several reasons. First, at trial, Ingrande's opposition to the individual
defendants' motion for summary judgment contains no reference to this argument, and it
is therefore waived. (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131
Cal. App. 4th 1466, 1488-1489.) Second, even had it been preserved, it is without merit.
Ingrande's opening brief identifies only one defamatory statement10 allegedly
Simpson (1960) 53 Cal. 2d 567, 583.) These rules place on an appellant the burden of
overcoming the presumption of correctness, even when the appellate court is required to
conduct a de novo review, and " '[t]he reviewing court is not required to make an
independent, unassisted study of the record in search of error or grounds to support the
judgment. It is entitled to the assistance of counsel. Accordingly every brief should
contain a legal argument with citation of authorities on the points made. If none is
furnished on a particular point, the court may treat it as waived, and pass it without
consideration.' [Citation.] [¶] It is the duty of appellants' counsel, not of the courts, 'by
argument and the citation of authorities to show that the claimed error exists.' " (Sprague
v. Equifax, Inc. (1985) 166 Cal. App. 3d 1012, 1050 (Sprague).)
10 Ingrande's opening brief purports to identify a second defamatory statement not
addressed by the individual defendants' motion for summary judgment—that he "violated
safety standards"—but his opening brief contains a citation to the record that contains no
mention of this alleged defamatory statement, and we accordingly will not further
consider it. (Sprague, supra, 166 Cal.App.3d at p. 1050; accord, United States v. Dunkel
(7th Cir. 1991) 927 F.2d 955, 956 [arguments can be deemed waived when inadequately
developed or supported because "[j]udges are not like pigs, hunting for truffles buried in
briefs"].)
14
"unaddressed" by the individual defendants' motion:11 that various individual defendants
falsely accused Ingrande of having sexual relations with "employees, independent
contractors, or customers." That statement was specifically addressed in the individual
defendants' motion for summary judgment, including showing Ingrande admitted he was
in a sexual relationship with a female independent contractor. We conclude Ingrande has
not shown the order granting summary judgment in favor of the individual defendants
was error.
IV
CLAIMS AGAINST EMPLOYER
A. Defamation
Ingrande's FAC also appeared to allege claims for defamation against Employer
premised on statements apart from and in addition to those attributed by Ingrande to the
individual defendants, and therefore pleaded defamation claims against Employer that
would not have been encompassed by the court's summary judgment in favor of the
11 We recognize that Ingrande, for the first time in his reply brief, asserts the "most
egregious defamatory statement[]" was that Ingrande was in the parking lot with a gun
and threatened Mr. Peralta. Although that statement was not addressed in the individual
defendants' motion for summary judgment, Ingrande has not identified where his
complaint alleges that statement was made and our independent search could not unearth
it. Moreover, even assuming that statement is somewhere alleged by Ingrande as a
defamatory statement and that statement had not been addressed in the individual
defendants' motion for summary judgment, Ingrande's election to ignore that defect until
his reply brief waives any argument that reversal of order granting the motion of the
individual defendants may be predicated on that alleged defect. (Katelaris v. County Of
Orange (2001) 92 Cal. App. 4th 1211, 1216, fn. 4.)
15
individual defendants.12 Although Ingrande's brief on appeal is somewhat opaque, it
appears he argues the court's summary adjudication in favor of Employer on Ingrande's
"additional" defamation claims against it was error. We separately assess the ruling on
those aspects of Ingrande's claims of error.
Background and Ruling
Employer's motion asserted Ingrande had no admissible evidence many of the
allegedly "additional" defamatory statements were made (e.g., he was violent and carried
a gun, or he must have been on drugs, or he failed to follow rules and regulations, or
employees feared him), and the only admissible evidence possessed by Ingrande of
harmful statements were statements that were true (he was having a sexual affair with a
person hired by Employer, Employer hired a guard because they were concerned
Ingrande might harm others at the store, and his employment was terminated because
Employer believed he violated its safety policies). The trial court agreed Ingrande had
not demonstrated a triable issue of fact existed, and therefore granted summary
adjudication as to these defamation claims asserted against Employer.
12 To the extent Ingrande's defamation claims against Employer rested on the
individual defendants' defamatory statements, our conclusion that summary judgment
was properly entered in favor of the individual defendants necessarily supports entry of
summary adjudication in favor of Employer. (Cf. Lathrop v. HealthCare Partners
Medical Group (2004) 114 Cal. App. 4th 1412, 1423 ["Under the doctrine of respondeat
superior . . . [citations] [t]he employer's liability is wholly derived from the liability of the
employee. The employer cannot be held vicariously liable unless the employee is found
responsible."].)
16
Analysis
On appeal, Ingrande makes no effort to demonstrate why the two arguments
posited by Employer below—he did not have admissible evidence as to some of the
statements and the other identified statements were true—would not support entry of
summary adjudication on his "additional" defamation claims against Employer. Instead,
Ingrande merely asserts entry of summary adjudication on the libel and slander claims
was improper because his defamation claims pleaded defamatory statements not
addressed by Employer's motion for summary judgment, and summary adjudication is
improper when it does not completely dispose of a cause of action. However, Ingrande's
opening brief identifies only a single defamatory statement purportedly pleaded but left
unaddressed by the Employer's motion for summary adjudication on the defamation
claims: that he "violated safety standards." However, because his opening brief cites only
a portion of the record containing no mention of this alleged defamatory statement, we
need not further consider it. (Sprague, supra, 166 Cal.App.3d at p. 1050; United States v.
Dunkel, supra, 927 F.2d at p. 956.) As stated in Lewis v. County of Sacramento (2001)
93 Cal. App. 4th 107, 116, although we review de novo an order granting summary
judgment, "this de novo review does not obligate us to cull the record for the benefit of
the appellant in order to attempt to uncover the requisite triable issues. As with an appeal
from any judgment, it is the appellant's responsibility to affirmatively demonstrate error
and, therefore, to point out the triable issues the appellant claims are present by citation to
the record and any supporting authority. In other words, review is limited to issues which
17
have been adequately raised and briefed." Because Ingrande has not satisfied this burden
on appeal, we do not further consider his only argument asserting it was error to grant
summary adjudication on his claims for defamation as against Employer.
B. Breach of Implied Contract
Ingrande's FAC, in its first cause of action for breach of implied contract, asserted
a claim that his employment was terminated without cause in breach of an implied
covenant of his employment contract with Employer that his employment would only be
terminated for cause. Ingrande argues the court erred when it entered summary
adjudication on this claim, arguing (1) he demonstrated triable issues of material fact on
whether his at-will employment contract included an implied covenant restricting
Employer to terminating his employment only for cause, and (2) he demonstrated triable
issues of material fact on whether Employer had cause to terminate his employment.
Background
Employer's motion for summary judgment argued Ingrande's employment
agreement, which California law ordinarily presumes to be at will (Guz, supra, 24 Cal.4th
at p. 335), was expressly an at-will contract. Employer showed Ingrande's employment
application (as well as the governing Employee Handbook that Ingrande judicially
admitted was binding on him) explicitly verified the parties understood and expressly
agreed Ingrande was an at-will employee.13 Employer argued Ingrande had no evidence
13 The language of his employment application expressly stated: "I understand that
employment at Home Depot, if offered, is for no definite term and it may be terminated,
with or without cause or notice, at any time . . . . I further understand that this condition
18
creating a triable issue of fact of whether this express at-will contract had been
supplanted by a contract limiting Employer's right to terminate his employment, and
therefore Ingrande's breach of contract claim failed as a matter of law. Employer
alternatively argued that, even if Ingrande could raise a triable issue of fact that Employer
needed cause to terminate his employment, the undisputed facts showed Employer
honestly concluded Ingrande violated its safety guidelines, and an employer's belief that
the requisite cause to terminate exists (even if ultimately incorrect) cannot give rise to
liability if that belief was held honestly based on the facts revealed by an appropriate
investigation. (King v. United Parcel Service, Inc. (2007) 152 Cal. App. 4th 426, 438-439
["The question critical to UPS's liability is not whether plaintiff in fact violated the
integrity policy by encouraging a subordinate to falsify his timecard, but whether UPS,
acting in good faith following an appropriate investigation, had reasonable grounds for
believing plaintiff had done so."] (King).)
The trial court recognized Ingrande's claim for breach of implied contract was
premised on a predicate—he was not an "at-will" employee but instead could only be
terminated for cause—and on the assertion there was a triable issue of fact of whether
Employer had cause to terminate his employment. The court, applying Guz, supra, 24
Cal. 4th 317, concluded Ingrande's express contract declared he was an at-will employee
can only be altered by a written contract of employment . . . signed by both me and the
President of the Company. [¶] I hereby further acknowledge that I am expected to abide
by all Company rules and regulations . . . but that such rules and regulations do not create
a contract between me and the Company or otherwise restrict the right of the Company to
terminate my employment. . . ."
19
and the facts cited by Ingrande to overcome the express at-will contract were inadequate
to limit Employer's right to terminate his employment without cause. The court
alternatively concluded, even if Ingrande had created a triable issue of fact on whether his
employment could not be terminated without cause, the undisputed facts showed the trash
compactor incident (if it occurred) would provide cause to terminate Ingrande's
employment, and Employer investigated the incident and reasonably believed the
incident occurred. Ingrande asserts the trial court erred as to both determinations.
Analysis of "At-will" Holding
Our Supreme Court in Guz recognized there is a presumption an employment
contract is at will but cautioned that although "the statutory presumption of at-will
employment is strong, it is subject to several limitations." (Guz, supra, 24 Cal.4th at
p. 335.) Guz explained the parties may agree to depart from an at-will agreement, either
expressly or by an agreement that is "implied in fact, arising from the parties' conduct
evidencing their actual mutual intent to create such enforceable limitations. [Citing Foley
v. Interactive Data Corp. (1988) 47 Cal. 3d 654, 680.] In Foley, we identified several
factors, apart from express terms, that may bear upon 'the existence and content of an . . .
[implied-in-fact] agreement' placing limits on the employer's right to discharge an
employee. [Ibid., italics added by Guz.] These factors might include ' "the personnel
policies or practices of the employer, the employee's longevity of service, actions or
communications by the employer reflecting assurances of continued employment, and the
practices of the industry in which the employee is engaged." ' " (Guz, at pp. 336-337.)
20
"However, ' "[t]here cannot be a valid express contract and an implied contract,
each embracing the same subject, but requiring different results.' [Citations.] The
express term is controlling even if it is not contained in an integrated employment
contract. [Citation.] Thus, the . . . at-will agreement precluded the existence of an
implied contract requiring good cause for termination.' [Citations.] The California
Supreme Court recently observed in dictum that most California cases 'have held that an
at-will provision in an express written agreement, signed by the employee, cannot be
overcome by proof of an implied contrary understanding. [Citations.]' [Quoting Guz,
supra, 24 Cal.4th at p. 340, fn. 10.]" (Starzynski v. Capital Public Radio, Inc. ( 2001) 88
Cal. App. 4th 33, 38.)
Ingrande's employment application expressly provides he was an at-will employee,
and Employer's governing employee handbook expressly reiterated that agreement.
Ingrande argues that, notwithstanding the express language in his contract,14 he raised a
14 Ingrande also asserts that, under Harden v. Maybelline Sales Corp. (1991) 230
Cal. App. 3d 1550, an at-will clause in an employment application is not controlling but
instead may be rebutted by evidence showing the parties intended to limit the employer's
ability to terminate the employee to "for cause" terminations. Ingrande misreads Harden.
In Harden, the plaintiff applied for a position and the application form stated the
employment was at-will. However, when the employer sent the plaintiff a written formal
job offer, it did not contain the at-will specification. (Id. at p. 1553.) Harden merely
concluded that, when there is an express written job offer accepted by the employee that
omits the at-will condition, there is a triable issue of fact whether the parties intended the
written offer to supersede the at-will condition contained in the job application. (Id. at
pp. 1555-1556.) Harden did not hold that, even absent this subsequent written contract,
an employee could avoid the express at-will condition contained in the application, and
the authorities would not appear to support that reading of Harden. (See, e.g., Wagner v.
Glendale Adventist Medical Center (1989) 216 Cal. App. 3d 1379, 1387-1394 [affirming
summary judgment, notwithstanding evidence from employee supporting implied
21
triable issue of fact as to the existence of an implied agreement limiting Employer's
ability to terminate his employment except for cause by his evidence that (1) he was a
long-term employee, and (2) Employer had a "three rule write up policy for discipline."15
However, the length of Ingrande's employment is inadequate to raise a triable issue of
fact that the express terms of his at-will contract were superseded by an implied
agreement. (Guz, supra, 24 Cal.4th at pp. 343-344 [in opposing summary judgment, "the
undoubted length and merit of Guz's Bechtel career does not bolster his claim that his at-
will status had been altered by an implied contract. We must look elsewhere for evidence
raising a triable issue that Bechtel entered and breached an implied contract limiting its
right to terminate Guz's employment."].) Ingrande's "evidence" Employer had a three
agreement to limit termination to for-cause termination, because employment application
and employee handbook clearly stated employment was at-will and these writings were a
complete and final expression of this term and preclude evidence of a prior or
contemporaneous collateral agreement at variance with this term].) Harden is irrelevant
because there was no subsequent written contract with Ingrande that might have
superseded the employment application.
15 Ingrande also asserts on appeal that other evidence created a triable issue of fact
on whether Employer was required to have cause to terminate his employment. For
example, he cites the deposition of Ms. Tillman, the human resources director for the
Pacific South region who approved Ingrande's employment termination, as admitting
Ingrande's employment could only be terminated for cause. Ingrande's argument rests on
a misconstruction of Tillman's testimony. Tillman, after testifying Ingrande was "not
terminated at will," clarified that he was in fact terminated "for violating a policy,"
whereas "at will he could be terminated without cause." Her statement of the cause that
in fact led to Ingrande's termination is not an admission that Employer was required to
have a cause to terminate him. Ingrande also adverts to Ms. Quattlebaum's testimony
that, in light of his tenure and position as assistant store manager, he would not be
terminated without approval at the regional level. Although that testimony shows
regional approval to terminate an employee's employment was required, that is not the
equivalent of admitting the regional office could only give approval for such termination
if cause existed.
22
rule write-up policy is even less persuasive, because the testimony he cites does not
support his claim Employer could only terminate an employee after multiple "write
ups."16 We conclude Ingrande produced no evidence raising a triable issue of fact that
the express declaration he was an at-will employee had been supplanted by an implied
agreement to limit Employer's right to terminate Ingrande's employment only for cause,
and therefore summary adjudication on Ingrande's First cause of action for breach of
implied contract was proper.
Analysis of "Adequate Cause" Holding
Even assuming Employer was required to have "cause" to terminate Ingrande's
employment, the undisputed material facts showed Employer's decision makers believed,
based on an investigation, Ingrande had committed a major safety violation that its own
policies stated were grounds for immediate employment termination.
Our Supreme Court in Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17
Cal. 4th 93 (Cotran) explained that " 'good cause' in the context of implied employment
contracts [means] . . . fair and honest reasons, regulated by good faith on the part of the
employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals,
or pretextual." (Cotran, at pp. 107-108.) Cotran explained that "[t]he proper inquiry . . .
is not, 'Did the employee in fact commit the act leading to dismissal?' It is, 'Was the
16 Ingrande cites the deposition testimony of Ms. Jorgenson (a human resources
manager for Employer) and Mr. Mendoza for his argument. However, the cited
testimony from Jorgenson shows that, in response to questions about the alleged "three
write-up rule," she replied, "I'm not sure what you're referring to." The cited testimony
from Mendoza shows that, when asked whether there was a three write-up rule before an
employee's employment could be terminated, he answered, "Not necessarily."
23
factual basis on which the employer concluded a dischargeable act had been committed
reached honestly, after an appropriate investigation and for reasons that are not arbitrary
or pretextual?' " (Id. at p. 107.)
Contrary to Ingrande's argument, the issue of whether an employer had "good
cause" under the Cotran standards may be resolved on summary judgment. (See, e.g.,
Serri v. Santa Clara University (2014) 226 Cal. App. 4th 830, 873; accord, Silva v. Lucky
Stores, Inc. (1998) 65 Cal. App. 4th 256, 264 ["All of the elements of the Cotran standard
are triable to the jury. [Citation.] However, if the facts are undisputed or admit of only
one conclusion, then summary judgment may be entered on issues that otherwise would
have been submitted to the jury."] (Silva).) Here, Employer's showing was that (1) the
decision makers decided to terminate Ingrande's employment only after an investigation,
(2) the investigation provided the decision makers reasonable grounds for believing
Ingrande had engaged in the misconduct on which the decision to terminate employment
was based, and (3) the cited reason for the termination was not trivial, arbitrary or
capricious, or unrelated to business needs or goals.17 Absent evidence raising a triable
issue of material fact as to one of these three elements, summary judgment in favor of
Employer, on the ground Employer had cause to terminate Ingrande's employment,
would be proper. (Serri v. Santa Clara University, supra, 226 Cal.App.4th at pp. 872-
874; Silva, supra, 65 Cal.App.4th at p. 264.)
17 We recognize Cotran also stated the reasons for the termination must not be
"pretextual." (Cotran, supra, 17 Cal.4th at p. 107.) We address Ingrande's claim that he
showed a triable issue of fact that the stated reasons were pretextual below. (See
Discussion, supra, at part IV.E.)
24
Ingrande asserts he raised a triable issue of fact on the first element because there
were triable issues of fact (1) whether he in fact directed or allowed Jones to violate any
safety standards, and (2) whether Employer's investigation reaching a contrary conclusion
was flawed. The former issue—whether there is a factual dispute over whether Ingrande
actually committed the misconduct—is irrelevant because, on the issue of "cause,"
Cotran is clear that "[t]he question critical to [an employer's] liability is not whether
plaintiff in fact violated the . . . policy . . . but [instead is whether employer], acting in
good faith following an appropriate investigation, had reasonable grounds for believing
plaintiff had done so." (King, supra, 152 Cal.App.4th at p. 438 [affirming summary
judgment despite appellant's evidence he did not in fact violate the policy].) As to the
latter issue, even assuming there was a dispute over whether Employer's investigation
could have been better, that dispute does not preclude summary judgment under Cotran's
standards. In Silva, supra, 65 Cal. App. 4th 256, as here, the plaintiff attempted to defeat
the employer's summary judgment motion by contending that, although there was an
investigation that reached the conclusion there had been misconduct, there were "triable
issues of fact as to whether Lucky's investigation was appropriate under the
circumstances [based on] the evidence show[ing] that Lucky failed to interview key
people, ignored substantial exculpatory evidence and was swayed by rumor, gossip and
innuendo." (Id. at p. 273.) Silva noted the investigator, an uninvolved human resources
representative trained on how to conduct an investigation, obtained written statements,
interviewed others, and provided the employee the opportunity to provide his own
25
statement, and reached his conclusions based on that investigation. (Id. at pp. 272-273.)
Rejecting the plaintiff's claim that summary judgment was improper because of disputed
issues over the adequacy of the investigation, Silva concluded that "[w]hile the
investigation was not perfect, it was appropriate given that it was conducted 'under the
exigencies of the workaday world and without benefit of the slow-moving machinery of a
contested trial.' " (Id. at p. 275, quoting Cotran, supra, 17 Cal.4th at pp. 105-106.) We
agree the investigation here was appropriate under the circumstances. Ingrande does not
dispute that Employer obtained a written statement from both Jones (who stated he was
asked to enter the compactor by Ingrande) and from Ingrande (who said he was present to
support Jones). More importantly, Ingrande does not dispute Employer reviewed a video
of the incident that clearly showed Ingrande was (at a minimum) an active participant
when Jones entered the door to the compactor, notwithstanding the warning signs on the
door. Because the undisputed material facts showed Employer conducted an
investigation appropriate under the circumstances, Ingrande's efforts to present triable
issues of fact on the alleged flawed nature of the investigation, or the conclusions reached
based on that investigation, do not preclude summary adjudication under the Cotran
framework.
Conclusion
We conclude the trial court correctly ruled Ingrande had not raised triable issues of
material fact on whether his employment contract included an implied covenant
restricting Employer to terminating his employment only for cause, and Ingrande did not
26
demonstrate triable issues of material fact on whether it did have adequate cause to
terminate his employment. Accordingly, the court did not err in entering summary
adjudication in favor of Employer on Ingrande's first cause of action for breach of
implied contract.
C. Fraud Claims
Ingrande's FAC, in his second and third causes of action sounding in fraud, alleged
Employer made numerous representations that Ingrande relied on but the representations
were false and caused injury to him. Ingrande argues the court erred when it entered
summary adjudication on these claims because (1) he demonstrated triable issues of
material fact on certain of the fraud allegations, and (2) Employer's motion purportedly
did not address all of the alleged misrepresentations contained in the second and third
causes of action.
Background
Ingrande's claims sounding in fraud alleged a laundry list of allegedly false
representations: (1) Employer " 'always took care of their associates,' " " 'did the right
thing,' " wanted " 'career associates,' " and "was fair" (FAC, ¶¶ 78.a., 78.g. & 78.j.); (2)
Employer would pay 100 percent of Ingrande's salary for medical leaves of absence
(FAC, ¶ 78.b.); (3) Ingrande "would retire a wealthy man" (FAC, ¶ 78c.); (4) Employer
would not discriminate against its employees (FAC, ¶ 78.d.); (5) Employer would follow
safety procedures (FAC, ¶ 78.e.); and (6) Employer would follow state and federal law
(FAC, ¶ 78.i.). Employer's motion for summary judgment argued it was entitled to
27
summary adjudication on Ingrande's fraud claims because (1) none of the alleged
representations were actionable representations of past or present facts but were instead
nonactionable "puffery" and/or predictions about the future or predictions about the
conduct of third parties, and/or (2) Ingrande could not show reliance on many of the
described representations because he knew (or became aware of) the true facts.
Ingrande's opposition to Employer's motion for summary adjudication on his fraud
claims argued the motion should be denied because Employer did not address every
alleged misrepresentation, including the representations contained in the employee
handbook (which Ingrande incorporated by reference) that Ingrande claimed were false.
He also argued, without citation to authority, that representations he specifically alleged
were actionable representations of past or present facts rather than "puffery" and/or
predictions about the future, and that the fact he continued working for Employer showed
he detrimentally relied on those representations.
The court concluded Ingrande had not shown a triable issue of fact on his claims
sounding in fraud, because Ingrande's opposition to the motion for summary judgment
did not identify any false representations by Employer as to past or present facts (rather
than statements that were predictions about the future or were mere "puffery") and he had
not shown any detrimental reliance on many of the alleged misrepresentations. Instead,
the court found Ingrande merely relied on the allegations of his complaint, along with
irrelevant argument, to avoid summary adjudication of these claims, which was
inadequate to avoid summary adjudication on them.
28
Analysis
A claim for negligent misrepresentation, as asserted in Ingrande's third cause of
action, requires proof the defendant (1) made a misrepresentation of a past or existing
material fact, (2) the misrepresentation was made without reasonable ground for
believing it to be true, (3) the misrepresentation was made with intent to induce another's
reliance on the fact misrepresented, (4) the party to whom it was directed was ignorant of
the truth and justifiably relied on the misrepresentation, and (5) that reliance caused
resulting damage. (See, e.g., Shamsian v. Atlantic Richfield Co. (2003) 107 Cal. App. 4th
967, 983.) A claim for fraud, as asserted by Ingrande in his second cause of action,
requires proof of the same elements with one exception: fraud requires the defendant had
actual knowledge of falsity at the relevant time, rather than merely lacking reasonable
grounds for believing the representation to be true. (See, e.g., Apollo Capital Fund LLC
v. Roth Capital Partners, LLC (2007) 158 Cal. App. 4th 226, 243.)
On appeal, Ingrande reargues that summary adjudication is improper when the
defendant does not refute the entire cause of action, and therefore summary adjudication
was improper because Employer's motion did not address the misrepresentations
contained in the employee handbook Ingrande incorporated by reference. However,
every element of a fraud cause of action must be specifically pleaded, including every
alleged misrepresentation. (See, e.g, Moncada v. West Coast Quartz Corp. (2013) 221
Cal. App. 4th 768, 776.) Employer's motion did address every specifically pleaded
misrepresentation, and a party moving for summary judgment need not address issues not
29
framed by the complaint. (Government Employees Ins. Co. v. Superior Court (2000) 79
Cal. App. 4th 95, 98, fn. 4.) Ingrande cites no authority suggesting a plaintiff, by attaching
exhibits to his or her complaint, can avoid summary adjudication on a fraud claim unless
the moving defendant has ferreted out and addressed every potential factual statement
within those exhibits, including statements not specifically pleaded as part of the
plaintiff's fraud claim, and we decline to adopt that rule here.
Ingrande alternatively argues he did raise triable issues of fact on three specific
representations: (1) Employer falsely represented Ingrande would not be terminated
unless it followed its policies and procedures for discipline; (2) Employer falsely
represented that he would receive 100 percent of his salary for medical leaves of absence;
and (3) Employer falsely represented Ingrande "would retire a wealthy man" from the
stock he was issued as part of his compensation. We are convinced Employer
demonstrated it was entitled to summary adjudication insofar as Ingrande's fraud claims
rested on these alleged statements. For example, his effort to predicate his fraud claims
based on the alleged representation Ingrande "would retire a wealthy man" from the stock
he was issued as part of his compensation fails because "[i]t is hornbook law that an
actionable misrepresentation must be made about past or existing facts; statements
regarding future events are merely deemed opinions." (San Francisco Design Center
Associates v. Portman Companies (1995) 41 Cal. App. 4th 29, 43-44.) Because Ingrande
30
cites no pertinent authority that predictions about the value of stock can support a fraud
claim, his fraud claim as to this representation fails.18
Ingrande's fraud claim on the other two representations fare no better. His claim
that he was told he would receive 100 percent of his salary for a medical leave of absence
was, at best, a prediction how the third party administrator of Employer's disability
insurance program (Liberty Mutual) would react to his disability claim, and Ingrande's
opposition to Employer's motion for summary adjudication did not dispute (1) that
Employer's short-term disability policy explicitly states the third party administrator
makes the determination on whether to pay an employee during a leave of absence, (2)
Ingrande admitted he knew Liberty Mutual was "in charge of [his] claim and . . . they're
the ones that are going to make the decision and pay [him]." " '[P]redictions as to future
events, or statements as to future action by some third party, are deemed opinions, and
not actionable fraud.' " (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal. App. 4th
153, 158.)
Ingrande's final claim—Employer misrepresented that his employment would only
be terminated after it followed its policies and procedures for disciplining employees—
also fails. First, the implied representation—Ingrande was promised his employment
would only be terminated after Employer followed its policies and procedures for
18 Although this ground is dispositive as to this specific alleged misrepresentation,
Employer went further and showed this aspect of Ingrande's fraud claim failed for an
additional reason: he did not reasonably rely on the representation as to stock values
because Ingrande admitted in his deposition that he knew (and received documents from
Employer advising him) stock values fluctuate and past performance of stock holdings
was no guarantee of future performance.
31
disciplining employees—was a prediction of what Employer would do in the future. As
previously discussed, this is not actionable. More importantly, as discussed above,
Ingrande knew from the employment application (and was on notice from the governing
employee handbook) that the express terms of his contract made him an at-will employee,
which precludes an employee from interposing a fraud claim based on an implied
representation the employer would terminate the employee's employment only for
cause.19 (See, e.g., Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal. App. 3d 799, 807
[express at-will term in contract bars fraud claim because no justifiable reliance]; accord,
McCreery v. Seacor (W.D. Mich. 1996) 921 F. Supp. 489, 493-494 [summary judgment
on fraud claim proper where alleged misrepresentation was directly contrary to express
terms of employment contract].)
We conclude the trial court correctly found there was no triable issue of material
fact on any of Ingrande's properly pleaded fraud claims, and therefore properly granted
summary adjudication on them.
19 Finally, although not necessary to our decision, Ingrande has not demonstrated a
triable issue of material fact that the representation (his employment would be terminated
only in accordance with Employer's policies and procedures) was false. Ingrande's
employment was terminated "in accordance" with Employer's policy (i.e. the policy that
"knowingly allowing associates to perform work under unsafe conditions," or "directing
any associate to violate company safety standards" would subject the offender to
termination for a first offense), and was done only after Employer adhered to its
procedures of investigating the incident and consulting with appropriate administrative
personnel.
32
D. The Wage Claims
Ingrande's sixth cause of action asserted a wage claim alleging Employer was
required to, but did not, pay Ingrande for overtime, and did not provide the required
"break periods." The court granted summary adjudication as to these claims because it
concluded Ingrande improperly attempted to create a triable issue of fact (1) by his
declaration, which contradicted his deposition testimony; and (2) by claiming he was a
nonexempt employee without pleading in his sixth cause of action that Employer had
misclassified Ingrande as an exempt employee. Ingrande argues both conclusions are
erroneous, and that he raised triable issues of material fact precluding summary
adjudication on his sixth cause of action for unpaid wages.
Background
Employer's summary judgment motion noted the claims asserted by Ingrande—for
unpaid overtime and failure to have break periods—have a three-year statute of
limitations. Employer argued that, because it was undisputed Ingrande had been a
salaried assistant store manager for more than three years before filing his lawsuit, any
claims for unpaid overtime and failure to have break periods when he worked in a
nonexempt position were necessarily time-barred, and salaried managers who meet the
requirements of the administrative, executive or professional exemptions are not entitled
to overtime and break periods. Employer argued that, because Ingrande had no non-time-
barred claims for overtime or break periods, and admitted during discovery that
33
Employer paid him all vacation and/or sick time due him, Ingrande had no facts
supporting his sixth cause of action.
Ingrande, opposing the motion for summary adjudication of his sixth cause of
action, noted claims that had accrued within three years before the lawsuit was filed were
not time-barred. He also noted salaried employees are entitled to overtime unless they
are "exempt" and, because Employer made no effort to satisfy its burden of showing he
was an employee whose job responsibilities met the requirements for the administrative,
executive or professional exemptions from the required overtime and break period
protections, summary adjudication was improper.
The court granted summary adjudication on this claim. It reasoned Ingrande's
claim—that he was entitled to overtime because he was not an exempt employee—was
an attempt to avoid summary judgment by interposing a theretofore unpleaded claim that
he had been "misclassified" as an exempt employee, and a party may not avoid summary
judgment by raising factual disputes on "unpleaded" claims.20
20 The court also concluded Ingrande had improperly tried to create a triable issue of
fact by his declaration averring he worked more than 40-hour work weeks as an assistant
manager without receiving overtime. The trial court concluded that "contradict[ion] [of]
his deposition testimony" could not be employed to avoid summary judgment. Our
search of the record for this contradiction—i.e., Ingrande's admission during his
deposition that he had been paid overtime while working as an assistant manager—has
been unsuccessful. The only possible passage we have found is, when asked in
deposition whether he was "not compensated for work you performed after you became
an assistant store manager," Ingrande responded, "I don't recall at this time." We are
unaware of any authority that makes Ingrande's deposition response fatally inconsistent
with his averment he was not paid overtime. However, we need not reach that issue
because Employer did not assert below that these responses warranted summary
adjudication, but instead relied on the combined impact of the statute of limitations and
34
Analysis
Legal Framework
"Any work in excess of eight hours in one workday and any work in excess of 40
hours in any one workweek . . . shall be compensated at the rate of no less than one and
one-half times the regular rate of pay for an employee." (Lab. Code, § 510, subd. (a).)
The regulatory scheme specifies that, when an employee is paid on a salaried basis, "[t]he
overtime rate of compensation required to be paid to a nonexempt full-time salaried
employee shall be computed by using the employee's regular hourly salary as one-fortieth
(1/40) of the employee's weekly salary." (Cal. Code Regs., tit. 8, § 11040, subd.
3(A)(1)(c).) Thus, the fact an employee is salaried does not, standing alone, preclude a
claim for overtime.
However, "[t]he Industrial Welfare Commission may establish exemptions from
the requirement that an overtime rate of compensation be paid pursuant to Section[] 510
. . . for executive, administrative, and professional employees, if the employee is
primarily engaged in the duties that meet the test of the exemption, customarily and
regularly exercises discretion and independent judgment in performing those duties, and
earns a monthly salary equivalent to no less than two times the state minimum wage for
full-time employment." (Lab. Code, § 515, subd. (a).) Pursuant to the authority granted
by this section to establish exemptions to the overtime pay provision of Labor Code
section 510, the Industrial Welfare Commission has adopted rules applicable to
Ingrande's alleged exempt status to assert it was entitled to summary adjudication on his
sixth cause of action.
35
professional, technical, clerical, mechanical, and similar occupations, and has established
a five-part test to determine whether the administrative employee exemption applies.
With minor variations, those exemptions apply if the employee (1) performs "office or
non-manual work directly related to management policies or general business operations"
of the employer or its customers, (2) "customarily and regularly exercise[] discretion and
independent judgment," (3) "performs under only general supervision work along
specialized or technical lines requiring special training" or "executes under only general
supervision special assignments and tasks," (4) is engaged in the activities meeting the
test for the exemption at least 50 percent of the time, and (5) earns twice the state's
minimum wage. (Cal. Code Regs., tit. 8, § 11040, subd. 1(A).) Because these criteria are
"[s]tated in the conjunctive, each of the five elements must be satisfied to find the
employee exempt as an administrative employee." (Eicher v. Advanced Business
Integrators, Inc. (2007) 151 Cal. App. 4th 1363, 1372.)
Under the regulatory scheme, a salaried employee like Ingrande is entitled to
overtime unless he is an exempt employee. The exemptions from overtime rules are to be
narrowly construed (Eicher v. Advanced Business Integrators, Inc., supra, 151
Cal.App.4th at p. 1374), and "the assertion of an exemption from the overtime laws is
considered to be an affirmative defense, and therefore the employer bears the burden of
proving the employee's exemption." (Ramirez v. Yosemite Water Co. (1999) 20 Cal. 4th
785, 794-795.)
36
It is axiomatic that "[t]he burden on a defendant moving for summary judgment
based upon the assertion of an affirmative defense is [different] than the burden to show
one or more elements of the plaintiff's cause of action cannot be established. Instead of
merely submitting evidence to negate a single element of the plaintiff's cause of action, or
offering evidence such as vague or insufficient discovery responses that the plaintiff does
not have evidence to create an issue of fact as to one or more elements of his or her case
[citation], 'the defendant has the initial burden to show that undisputed facts support each
element of the affirmative defense' [citations] . . . . If the defendant does not meet this
burden, the motion must be denied." (Anderson v. Metalclad Insulation Corp. (1999) 72
Cal. App. 4th 284, 289-290.) Stated differently, " '[t]here is no obligation on the opposing
party (plaintiffs here) to establish anything by affidavit unless and until the moving party
has by affidavit stated " 'facts establishing every element [of the affirmative defense]
necessary to sustain a judgment in his favor. (Citation omitted.)' " ' [Citation.] [¶] What
this means . . . is that if an affirmative defense has four elements, it does not suffice even
if the defendant produces overwhelming evidence as to three of those elements. If the
defendant fails to address the fourth element at all or to produce substantial evidence
supporting that element, the trial court cannot properly grant summary judgment.
Moreover, a summary judgment granted in those circumstances would have to be
reversed, even if the plaintiff failed to introduce a scintilla of evidence challenging that
element.'' (Huynh v. Ingersoll-Rand (1993) 16 Cal. App. 4th 825, 830-831.)
37
Here, Ingrande's sixth cause of action pleaded a claim alleging he was entitled to,
but had not received, payment for overtime and for break periods that Employer had not
provided. Although Employer alleged (as an affirmative defense) Ingrande was exempt
from overtime laws, and its summary judgment motion peremptorily asserted summary
adjudication on Ingrande's sixth cause of action should be entered because any claims not
barred by the statute of limitations were barred because Ingrande was an exempt
employee, Employer's motion contained no effort to show that any of the required
elements necessary to establishing the affirmative defense of "exemption" under title 8,
section 11040, subdivision 1(A) of the California Code of Regulations was met, much
less that the undisputed material facts showed all of the required elements were met.
Accordingly, summary adjudication on Ingrande's sixth cause of action must be reversed
regardless of whether Ingrande "failed to introduce a scintilla of evidence" challenging
those elements. (Huynh v. Ingersoll-Rand, supra, 16 Cal.App.4th at pp. 830-831.)
The trial court nevertheless entered summary adjudication on Ingrande's sixth
cause of action because it concluded he had not alleged he was a nonexempt employee
entitled to overtime under the Labor Code whom Employer had misclassified as exempt,
and therefore he could not raise this new, unpleaded theory to avoid summary
adjudication. However, exemption from the overtime laws is an affirmative defense on
which the employer bears the burden of proof (Ramirez v. Yosemite Water Co., supra, 20
Cal.4th at pp. 794-795), and Employer cites no authority suggesting an employee who
has pleaded a claim for unpaid overtime must also allege facts overcoming the employer's
38
affirmative defense of "exemption." Because the ordinary rules of pleading are clear that
a plaintiff is not required to allege facts negating or anticipating possible affirmative
defenses (see, e.g., Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal. 2d 416, 422; accord, Cohen
v. Five Brooks Stable (2008) 159 Cal. App. 4th 1476, 1496 ["a complaint 'should not state
and attempt to controvert matters that the defendant might raise in [the] answer' "]), and
Employer cites no authority suggesting a different rule applies to an employee's
otherwise properly pleaded claim for alleging he or she was entitled to but was not paid
overtime, the core rationale for the trial court's order granting summary adjudication on
Ingrande's sixth cause of action was error. We reverse the trial court's ruling granting
summary adjudication on Ingrande's sixth cause of action.
E. The "Termination in Violation of Public Policy" Claims
Ingrande's seventh and 10th causes of action asserted his employment was
terminated in violation of public policy. In relevant part,21 he alleged his employment
termination was not due to his job performance but was instead because of his complaints
about safety violations (seventh cause of action) and/or because of his age (seventh and
10th causes of action).22 Ingrande argues that, because he demonstrated triable issues of
21 His complaint also pleaded wrongful employment termination claims based on
allegations he was terminated because of his gender and ethnicity. However, Ingrande on
appeal raises no claim of error as to the trial court's ruling on those claims, and we
therefore deem those claims abandoned (Schmidt v. Bank of America, N.A. (2014) 223
Cal. App. 4th 1489, 1511) and do not further consider those aspects of Ingrande's pleaded
causes of action.
22 Ingrande's FAC alleged his employment was terminated in violation of public
policy because the true reason he was terminated was because of his age and/or in
39
material fact on whether the true reasons Employer terminated his employment were
these improper reasons, the court erred when it entered summary adjudication on these
claims.
Background
Employer's motion asserted Ingrande was required to, but could not, satisfy his
initial burden of showing a prima facie case of discriminatory or retaliatory employment
termination, because his prima facie showing required evidence that (1) he was
performing competently at his position and (2) the adverse employment action occurred
because of the protected characteristic or activity. Employer argued (1) the undisputed
facts showed he was not performing competently at his position because he sent or
permitted Jones to enter the trash compactor, and (2) he had no evidence the person who
recommended the adverse employment action (Campeau) or ultimately approved the
adverse employment action (Tillman) knew, at the time of the recommendation and
approval, that Ingrande had made complaints about Employer's safety practices or even
knew (much less was motivated to terminate his employment because of) Ingrande's age.
retaliation for his complaints about safety violations. Because the standards for assessing
the propriety of granting summary judgment on such claims apparently employ similar
burden-shifting approaches (compare Guz, supra, 24 Cal.4th at p. 354 [applying three-
stage burden-shifting test established by McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792 to evaluate age discrimination claim] and Loggins v. Kaiser Permanente
Internat. (2007) 151 Cal. App. 4th 1102, 1108-1109 [when plaintiff alleges retaliatory
employment termination either as claim under the California Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12900 et seq.), or as claim for wrongful employment
termination in violation of public policy, California employs burden-shifting analysis of
McDonnell Douglas in evaluating summary judgment motion]), we examine Ingrande's
seventh and 10th causes of action together.
40
Employer argued the absence of any evidence supporting Ingrande's prima facie case of
retaliatory or discriminatory employment termination alone warranted summary
adjudication on these claims.
Employer's motion alternatively asserted that, even if there was a modicum of
evidence supporting the prima facie showing, thereby shifting the burden to Employer to
show Ingrande's employment was terminated for a legitimate and nonprohibited reason, it
was undisputed Employer's stated reason for the adverse employment action was a
legitimate reason to terminate an employee's employment, which then required Ingrande
to provide evidence raising a genuine issue of fact whether the proffered reason for his
employment termination was pretextual. Employer asserted that, because Ingrande did
not have any evidence the persons recommending or deciding the adverse employment
action knew, at the time the decision was made to terminate his employment, he had
made complaints about Employer's safety practices, or knew his age, Ingrande had no
evidence raising a triable issue of fact that the articulated reason for the termination was
merely a pretext to mask a prohibited reason.
Ingrande's opposition asserted he had evidence showing prima facie he was
performing competently at his position, and there was evidence raising a triable issue of
fact Campeau and Tillman knew his age and decided to terminate his employment
because of his age, or decided to terminate his employment in retaliation for his
complaints about safety violations. He argued this shifted the burden to Employer to
show the decision to terminate his employment was based on considerations other than
41
his age or other protected considerations. Although Ingrande acknowledged Employer
articulated a legitimate reason (the trash compactor incident), he claimed there was
evidence raising a triable issue of fact whether the articulated reason was pretextual,
because (1) there was evidence Employer was planning to terminate Ingrande's
employment before the compactor incident, and (2) there was evidence from which a jury
could conclude the articulated reason (the trash compactor incident) was a pretext
masking the actual reason (Ingrande's age) for the employment termination.23 Ingrande
argued triable issues of fact precluded summary adjudication on his seventh and 10th
causes of action.
The trial court concluded Ingrande did not raise triable issues of fact either on
whether he was competently performing his job position or as to any causal connection
between his age and the decision to terminate his employment, which was fatal to both
his claim for age discrimination (10th cause of action) and his claim for wrongful
employment termination in violation of public policy (seventh cause of action) insofar as
it was premised on his assertion his employment was terminated because of his age.
23 Ingrande argued the evidence showed (1) Employer's investigation of the incident
was shoddy, (2) the decision makers did know Ingrande's age, (3) there was evidence
Employer held meetings to establish quotas for firing older (and hence higher paid)
employees where managers were instructed to " 'make up' reasons to terminate
employees," (4) he had been threatened with employment termination by district manager
Powers well before the compactor incident, and (5) Employer began laying the ground
work for terminating Ingrande's employment even before the trash compactor incident by
creating a series of "false write-ups" criticizing Ingrande's performance.
42
Legal Framework
As we previously concluded, Ingrande was an at-will employee subject to
employment termination with or without cause. However, " '[although] an at-will
employee may be terminated for no reason, or for an arbitrary or irrational reason, there
can be no right to terminate for an unlawful reason or a purpose that contravenes
fundamental public policy.' " (Silo v. CHW Medical Foundation (2002) 27 Cal. 4th 1097,
1104.) A termination violating FEHA's policy against age discrimination, as alleged by
Ingrande here, will support a claim for wrongful discharge in violation of public
policy.24 (Stevenson v. Superior Court (1997) 16 Cal. 4th 880, 897.)
24 We are less sanguine that Ingrande's claim for wrongful termination, insofar as it
was predicated on his claim he was terminated in retaliation for his "complaints about
safety violations," would be equally viable. (Cf. Turner v. Anheuser-Busch, Inc. (1994) 7
Cal. 4th 1238, 1257 [allegation of retaliation based on employee's complaints about
"violations," when unaccompanied by citations to specific statutory or constitutional
provisions embodying fundamental public policies involved, insufficient to create an
issue of material fact justifying a trial on the merits of wrongful discharge claims].)
However, it is unnecessary to definitively determine this issue, because Ingrande has not
satisfied his burden on appeal of showing he raised a triable issue of fact that Campeau
and Tillman even knew about his complaints about safety violations when they made the
decision to terminate his employment, much less that the decision was made in
retaliation for those complaints. Campeau and Tillman both averred they had no
knowledge of his safety complaints, and Ingrande's brief on appeal, although asserting
"there are a number of triable issues of material fact that prevent summary adjudication,"
attempts to support that assertion by a shotgun reference to 67 pages of the Clerks
Transcript without identifying which parts of the cited pages support which aspects of his
claims of error. The burden is on the appellant to affirmatively demonstrate error, and we
conclude Ingrande's failure to cite to the record with particularity waives any claim of
error. (Cf. Dietz v. Meisenheimer & Herron (2009) 177 Cal. App. 4th 771, 799-800; see
Cal. Rules of Court, rule 8.204(a)(1)(C).) "When an appellant's brief makes no reference
to the pages of the record where a point can be found, an appellate court need not search
through the record in an effort to discover the point purportedly made." (In re S.C.
(2006) 138 Cal. App. 4th 396, 406.) Because Ingrande's appellate brief does not identify
43
"An employee alleging age discrimination must ultimately prove that the adverse
employment action taken was based on his or her age. Since direct evidence of such
motivation is seldom available, the courts use a system of shifting burdens as an aid to
the presentation and resolution of age discrimination cases. [Citations.] That system
necessarily establishes the basic framework for reviewing motions for summary judgment
in such cases." (Hersant v. Department of Social Services (1997) 57 Cal. App. 4th 997,
1002 (Hersant).) The applicable burden-shifting system involves a three-step analysis:
(1) the employee must first establish a prima facie case of age discrimination; (2) if the
employee establishes his or her prima facie case, the burden shifts to the employer to
provide a legitimate non-age-based reason for the adverse employment action; and (3) if
the employer satisfies its burden, the employee then must show the employer's articulated
reason for the adverse employment action was a pretext to mask the actual,
discriminatory reason for the adverse action. (Guz, supra, 24 Cal.4th at pp. 354-356;
Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal. App. 4th 138, 148-150.) Under
this burden-shifting analysis, once the employer has met its burden of showing its action
was motivated by legitimate, non-age-based reasons, the employer is entitled to summary
judgment unless the employee produces "evidence supporting a rational inference that
intentional discrimination . . . was the true cause of the employer's actions. [Citation.]
what portions of the record demonstrate how he raised a triable issue of fact as to whether
Campeau and Tillman knew of his safety complaints, we deem waived (and do not
further examine) his claim that it was error to enter summary adjudication on his seventh
cause of action insofar as it was predicated on an alleged termination in retaliation for
such safety complaints.
44
[T]he great weight of federal and California authority holds that an employer is entitled to
summary judgment if, considering the employer's innocent explanation for its actions, the
evidence as a whole is insufficient to permit a rational inference that the employer's
actual motive was discriminatory." (Guz, at p. 361, fn. omitted.)
Analysis
Under the applicable standards, it was Ingrande's burden in resisting Employer's
motion for summary judgment initially to produce evidence necessary to show a "prima
facie" case of age discrimination, which required evidence (1) he was a member of a
protected class, (2) he was performing competently in the position he held, (3) he
suffered an adverse employment action, and (4) some other evidence suggested the
adverse action occurred because of his age. (Guz, supra, 24 Cal.4th at p. 355; cf.
Deschene v. Pinole Point Steele Co. (1999) 76 Cal. App. 4th 33, 44.) Although two of the
required elements of the prima facie case were shown,25 the court found Ingrande had
not met the required prima facie showing because he had not shown he was performing
competently in his job. The court also granted summary adjudication because he
produced no evidence raising a triable issue of fact that the decision made by Tillman and
Campeau to terminate Ingrande's employment was because of his age rather than because
of his violation of Employer's safety rules.
25 Ingrande contends, and Employer does not dispute, Ingrande adequately showed
he was a member of the protected class because he was over 40 years of age (element
(1)), and suffered an adverse action (element (3)).
45
Ingrande peremptorily asserts he satisfied element (2) because he averred he did
not direct or assist Jones to violate safety standards, and showed Employer's conclusion
to the contrary was based on a flawed investigation. Although he produced evidence
suggesting Employer's investigation could have been better, in either its scope or its
documentation, the conclusion reached by Employer—that Ingrande in fact was not
"performing competently" because he violated the type of safety standards Employer's
internal policies expressly caution are so serious as to warrant immediate termination—is
amply supported by both the videotape of the trash compactor incident and by the written
statements regarding that incident provided to Employer by Jones and Ingrande. Under
these circumstances, we reject Ingrande's implied contention, made without citation to
authority, that merely pointing out an employer's investigatory process was flawed is a
substitute for the affirmative showing required of the employee that he or she
demonstrate the employee was in fact "performing competently in the position" he or she
occupied with the employer. (Cf. King, supra, 152 Cal.App.4th at pp. 435-437.)
Even assuming Ingrande showed he was otherwise competently performing his job
apart from the trash compactor incident, Employer produced evidence that its articulated
reason for discharging Ingrande was unrelated to his age (i.e. was based on his violation
of a safety standard Employer's internal policies expressly caution are so serious as to
warrant immediate termination of employment) and was reached after an investigation
that provided it a good faith reason for believing Ingrande had in fact violated those
policies. Under these circumstances, the burden then shifted to Ingrande to produce
46
evidence this articulated reason was a pretext to mask the real, age-based reason for his
employment termination. (Guz, supra, 24 Cal.4th at pp. 354-356.) The court in King,
supra, 152 Cal. App. 4th 426, explaining the element of the employer's burden to make a
sufficient showing of a legitimate reason for discharge in the context of a summary
judgment motion, reasoned that when the employer has shown it conducted an
investigation that led "the decision makers [to] entertain[] an honest belief that plaintiff
had either personally falsified a driver's timecard or directed the driver to do so[,] . . . [the
employer has met its burden and] it does not matter whether plaintiff actually did commit
an integrity violation as long as UPS honestly believed he did" (id. at p. 433), even
though the plaintiff claimed there was evidence the investigation was flawed or reached
wrong conclusion. (Id. at pp. 435-437.) The same rationale controls here: Employer
showed it reviewed the videotape of the trash compactor incident (and the written
statements regarding the trash compactor incident provided to Employer by both Jones
and Ingrande), all of which supported a legitimate, non-age-based reason for discharging
him, and therefore the burden shifted to Ingrande to produce evidence showing
Employer's articulated non-age-based reason for discharging him was pretext. (Morgan
v. Regents of University of California (2000) 88 Cal. App. 4th 56, 68 (Morgan).)
When the burden shifts back to the employee, " 'to avoid summary judgment, an
employee claiming discrimination must offer substantial evidence that the employer's
stated nondiscriminatory reason for the adverse action was untrue or pretextual, or
evidence the employer acted with a discriminatory animus, or a combination of the two,
47
such that a reasonable trier of fact could conclude the employer engaged in intentional
discrimination.' [(Quoting Hersant, supra, 57 Cal.App.4th at pp. 1004-1005.)] [¶] Nor
can the employee simply show the employer's decision was wrong, mistaken, or unwise.
Rather, the employee ' "must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate
reasons for its action that a reason able factfinder could rationally find them 'unworthy of
credence,' [citation], and hence infer 'that the employer did not act for the [ . . . asserted]
non-discriminatory reasons.' [Citations.]" [Citations.]' [(Quoting Hersant, at p. 1005.)]"
(Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal. App. 4th 798, 806-807, fn.
omitted.)
We are convinced Ingrande did not satisfy his burden of raising a triable issue of
fact—either by direct evidence or by "[c]ircumstantial evidence of ' "pretense" [that is
sufficiently] "specific" and "substantial" in order to create a triable issue [of pretext]' "
(Morgan, supra, 88 Cal.App.4th at p. 69, quoting Godwin v. Hunt Wesson, Inc. (9th Cir.
1998) 150 F.3d 1217, 1222)—that the articulated reason for his employment termination
was merely a pretext to hide that he was actually discharged because of his age. The
record appears devoid of any direct evidence (Morgan, at p. 67 [" ' "Direct evidence is
evidence which, if believed, proves the fact [of discriminatory animus] without inference
or presumption" ' "], quoting Godwin, at p. 1221), such as any statements by the decision
makers expressly revealing the existence of bias (Godwin, supra), suggesting Tillman or
Campeau approved his discharge because of his age. We must examine whether
48
Ingrande's circumstantial evidence was sufficiently specific and substantial to raise a
triable issue of fact whether Tillman or Campeau approved his discharge because of his
age. (See, e.g., Bergene v. Salt River Project Agric. Improvement & Power Dist. (9th Cir.
2001) 272 F.3d 1136, 1142 ["Circumstantial evidence of pretext must be specific and
substantial in order to survive summary judgment."].)
The evidence cited by Ingrande on appeal does not raise a triable issue of fact that
the articulated reason for Tillman's and Campeau's approval of his employment
termination—the trash compactor incident—was merely a pretext for the alleged actual
reason (i.e. his age) they approved his employment termination. Ingrande first cites the
evidence that the department in which Campeau worked (Employer's AACG department)
generated a "ticket" around March 1, 2011, showing the AACG had been notified on that
date of Ingrande's claim that Mr. Powers had been "threatening [Ingrande] for a long
time." However, this was after Tillman and Campeau approved Ingrande's employment
termination, and contains no hint that Powers's threats were animated by Ingrande's age.
Ingrande makes no effort on appeal to explain how this "ticket" provides any basis for
inferring Tillman or Campeau in fact approved his employment termination because of
his age rather than because of the trash compactor incident. Ingrande next cites an e-mail
from Ms. Jorgenson (Employer's district human resources manager, who participated in
the discussions leading up to the discharge decision) to Mr. Peralta (the store manager),
which Ingrande claims demonstrated Employer engaged in a "deceitful attempt to
'document the file' in order to justify the [termination]." However, that e-mail merely
49
contains Jorgenson's admonition that, in connection with the investigation of the trash
compactor incident, "please make sure that everyone writes a statement for review."
Although this e-mail may show a desire to insure the investigation was as complete as
possible, and indeed the absence of the statements requested in this e-mail would
undoubtedly have been additional fodder for Ingrande's claim of an inadequate
investigation, it is pure speculation and conjecture that an employer's request to document
the articulated reason for an employment termination shows the employer was attempting
to mask a prohibited reason for the termination. (Horn v. Cushman & Wakefield
Western, Inc., supra, 72 Cal.App.4th at p. 807 ["[A]n issue of fact can only be created by
a conflict of evidence[,] . . . not . . . by speculation or conjecture."].)
Ingrande's remaining efforts to raise a triable issue of fact on pretext are equally
unavailing. For example, he notes he was terminated for the trash compactor incident
while Jones, an employee younger than 40, was not. Although pretext may be shown by
disparate treatment evidence (McDonnell Douglas Corp. v. Green, supra, 411 U.S. at p.
804), a plaintiff relying on such evidence "must show that the 'comparables' are similarly-
situated in all respects." (Mitchell v. Toledo Hosp. (6th Cir. 1992) 964 F.2d 577, 583,
italics added.) Ingrande was an experienced manager who directed Jones to go into the
compactor, while Jones was a recently hired subordinate who acted pursuant to his
manager's instructions. They are not similarly situated. (Cf. Hargett v. National
Westminster Bank, USA (2d Cir. 1996) 78 F.3d 836, 839-840 [managers may be held to
higher standards of conduct than lower level employees].) Ingrande also asserts on
50
appeal that "[o]lder employees were terminated to save money," but his appellate brief
contains no citation to the record supporting this assertion,26 and we do not further
consider it. (Sprague, supra, 166 Cal.App.3d at p. 1050; Lewis v. County of Sacramento,
supra, 93 Cal.App.4th at p. 116.)
Although Ingrande has demonstrated on appeal that he raised a triable issue of fact
over whether Employer's investigation was imperfect, that showing falls short of the type
of circumstantial evidence of pretext required to defeat a summary judgment motion
directed at a claim of discrimination: " 'The [employee] cannot simply show that the
employer's decision was wrong or mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the employer is wise,
shrewd, prudent, or competent. [Citations.] Rather, the [employee] must demonstrate
such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action that a reasonable factfinder could
rationally find them "unworthy of credence," [citation], and hence infer "that the
employer did not act for the [. . . asserted] non-discriminatory reasons." [Citations.]' "
(Hersant, supra, 57 Cal.App.4th at p. 1005.) Ingrande has not demonstrated on appeal
that his evidentiary showing below would permit a reasonable factfinder to rationally find
Employer's articulated reason for Ingrande's employment termination was so weak,
implausible, inconsistent, incoherent or contradictory that the articulated reason was
26 Instead, Ingrande supports this assertion solely by citing a comment by
Ms. Tillman that Home Depot stock had declined during the recession, and a comment by
Mr. Mendoza that bonuses not paid to Ingrande would be shared among other store
managers and assistant managers.
51
unworthy of credence, and therefore he has not demonstrated on appeal that the trial
court's order granting summary adjudication on his seventh and 10th causes of action was
erroneous.
DISPOSITION
The judgment in favor of the individual defendants is affirmed, and the individual
defendants are entitled to recover their costs on appeal against Ingrande. The judgment
in favor of Employer is reversed, and the matter is remanded with directions that the
superior court enter a new and different order granting Employer's motion for summary
adjudication on all of Ingrande's causes of action except his sixth cause of action, and
denying Employer's motion for summary adjudication on Ingrande's sixth cause of action.
Ingrande and Employer shall bear their own respective costs on appeal.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
52