Guerrero v. Whole Foods Market Cal. CA2/5 ( 2021 )

Filed 12/10/21 Guerrero v. Whole Foods Market Cal. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JOSE GUERRERO, B305799
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV02239)
WHOLE FOODS MARKET
CALIFORNIA, INC. et al,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Monica Bachner, Judge. Affirmed.
Barrera & Associates, Patricio T.D. Barrera and Jeremy H.
Herwitt, for Plaintiff and Appellant.
Sheppard, Mullin, Richter & Hampton, Derek R. Havel,
Nora K. Stilestein, and Limore Torbati, for Defendants and
Respondents.
Jose Guerrero (Plaintiff) was fired by his employer Mrs.
Gooch’s Natural Food Markets, Inc. doing business as Whole
Foods Market (Whole Foods) for failing to abide by food safety
rules. Plaintiff then sued Whole Foods and his former supervisor,
Arthur Tolentino (Tolentino) for age and national origin
discrimination, retaliation, harassment, and other claims. We
consider whether the trial court correctly granted summary
judgment for Whole Foods, and the answer to that question
largely turns on whether Plaintiff put forward substantial
evidence that Whole Foods’ reason for firing him was pretextual
and whether those responsible for the termination decision can
be said to have acted with unlawful motivation.
I. BACKGROUND
A. Plaintiff’s Employment as a Whole Foods Meat Cutter
Plaintiff began working for Whole Foods in 1988 and,
beginning in 2006, his job was that of a meat cutter. In 2018,
Plaintiff was working Whole Foods’ Newport Beach store after
transferring there in 2016 from Whole Foods’ West Los Angeles
location. Plaintiff was 57 years old.
While working as a meat cutter, Plaintiff was repeatedly
trained on Whole Foods’ meat and food handling policies.
Plaintiff accordingly understood that commingling of different
species of meat and poultry products during cutting and grinding
was prohibited by Whole Foods for a number of reasons,
including public health concerns.1
1
A meat product with commingled types of meat may be
hazardous, especially where the customer is unaware of the
presence of more than one type. For instance, if two different
types of meat are commingled without a customer’s knowledge,
2
To prevent meat commingling, Whole Foods’ “Grinding
Policy/Guidelines,” a document Plaintiff reviewed as recently as
2017 when he underwent retraining, specified that meat grinders
must be cleaned and sanitized “between EVERY grind . . . . It is
very important that all meat ground for our customers be ground
in a clean and sanitized grinder each and every time meat is
ground.” The grinding policy guidelines also stated it was
“crucial” to maintain accurate logs memorializing each time meat
was ground. Pursuant to Whole Foods’ “General Information
Guide” for employees, “flagrant” disregard of food safety
procedures was considered a “major infraction,” which could
result in discharge.2
B. Plaintiff’s Termination
On August 8, 2018, shortly before Plaintiff was about to
leave work for the day around 1:00 p.m., Jacob Lilio (Lilio), the
only other grinder in the meat department on duty at the time,
asked Plaintiff to grind some pork. Plaintiff did so, but he did not
clean the grinder or document his work in the grind log.3 Instead,
Plaintiff clocked out at 1:16 p.m. and left the store. Lilio used
some of the pork ground by Plaintiff to prepare blueberry
the commingled product might not be cooked to a temperature
sufficient to kill bacteria present in both types, thereby putting
the customer’s health at serious risk.
2
Plaintiff acknowledged receiving the employee guide
numerous times, including in April 2018.
3
Plaintiff maintains he informed Lilio that he (Lilio) needed
to log the grind and clean the grind machine.
3
breakfast sausages and placed the remainder in a display case for
sale.
1. The discovery of commingled meat
Just minutes after Plaintiff left work, Craig Kittinger
(Kittinger) and Patrick Wight (Wight) began a walk-through of
the Newport store. Kittinger was a Whole Foods team leader
responsible for performing internal audits of stores in the
company’s Southern Pacific Region for, among other things, food
safety. When Kittinger and Wight entered the meat grinder
room, they immediately noticed the grinder was dirty and had
commingled meat (beef and pork) in it. Kittinger and Wight took
photos of the grinder and informed one of the store’s assistant
managers, Nicolas Le Compte (Le Compte), who also
photographed the grinder.
Kittinger and Wight interviewed Lilio and he told them
Plaintiff performed the last grind. Kittinger and Wight inspected
the pork ground by Plaintiff and discovered specks of dark beef
among the white pork. The ground pork and the sausages
prepared by Lilio were quarantined from sale and thrown away.
2. Whole Foods’ investigation and termination
decision
After discovering the comingled meat, Wight and Le
Compte emailed photos of the grinder to others including Brian
Reese (Reese), the manager of the Newport store; Mark Martinez
(Martinez), the Southern Pacific Region meat team coordinator;
and Shelly Pope (Pope), a senior member of Whole Foods’ human
resources department.
4
After receiving the emailed photos of the grinder, Reese
arrived at the Newport store approximately an hour and a half
after Plaintiff left. He inspected the grinder and the ground pork
that had been placed in a case for sale and determined that there
was commingled meat in both.
Reese interviewed Lilio, who said Plaintiff ground the pork
at his request and, to Lilio’s knowledge, no one other than
Plaintiff had used the grinder. Reese also interviewed Anderson
Arias-Bracamonte (Arias-Bracamonte), who Lilio said was also
present when the commingled grind took place. Arias-
Bracamonte, a member of the seafood department with no
responsibility for performing beef or pork grinds, denied doing
any grinding that day. Tolentino, Plaintiff’s immediate
supervisor, was not involved in the investigation because he had
left the store at 12:44 p.m., approximately 15 minutes before Lilio
asked Plaintiff to perform the pork grind.
On the day after discovery of the commingled meat grind,
Reese interviewed Plaintiff. Tolentino was present in the room
during Reese’s interview of Plaintiff but he did not actively
participate in the interview. Reese showed Plaintiff photographs
of the grinder and Plaintiff acknowledged his last grind on the
prior day was pork (done at Lilio’s request) and he did not clean
the grinder or document the grind on the meat grinding log.
Plaintiff also provided a signed written statement stating in
pertinent part: “On 8/9/18[4] as I was getting ready to leave for
the day, [Lilio] asked me last minute to grind pork for the
oven[-]ready set prep. I then went to the back and got the trim. I
4
At his deposition, Plaintiff admitted the date on his
statement was incorrect and he meant to refer to August 8, 2018.
5
checked the grinder and it had pork on it [as pork] is always my
last grind. I then put the pork in the grinder and ground the
pork.” Though Tolentino was present for Reese’s interview of
Plaintiff, Tolentino was not copied on any of the subsequent
email correspondence among Whole Food’s personnel about how
to respond to what happened.
Later that same day, after reviewing employee time-record
data and schedules, Reese sent an email to human resources
employee Pope, meat team member Martinez, and others
advising Plaintiff was responsible for the comingled grind, which
he characterized as a major food safety and policy violation. 5
Reese added that Plaintiff “has been with us for 20 plus years so
he knows what to look for and what our policy is.” Attached to
Reese’s email were photos of the dirty grinder and a copy of
Plaintiff’s written statement.
The next day, after reviewing the photographs, Martinez
sent a reply email opining “it clearly looks like pork was ground
in same grinder as beef, pork probably after beef. [¶] . . . [¶] I
feel it is a major infraction.” Pope inquired via email about grind
log data and Plaintiff’s training. Reese’s response stated the logs
indicated Plaintiff had performed the last four grinds prior to the
unlogged grind he performed at Lilio’s request and Plaintiff had
been trained on Whole Foods’ Grinding Policy/Guidelines as
recently as June 2017.
Based on his investigation, Reese concluded Plaintiff
should be fired because his conduct constituted a major infraction
of the company’s food safety policies. Pope, who independently
5
In his email of August 9, 2018, Reese incorrectly stated the
comingled grind was discovered on August 9, not August 8. In a
subsequent email, Reese corrected his mistake.
6
examined the photographs of the grinder, the grinder logs,
employee work schedules, and Plaintiff’s written statement,
concurred. Tolentino, who did not have the authority to
terminate Plaintiff, was not asked for his views and did not
volunteer them.
Three weeks after the discovery of the comingled meat,
Reese advised Plaintiff that his employment was being
terminated for commingling different species of meat, failing to
clean the grinder, and failing to log his last grind.
3. Plaintiff’s appeal of his termination
A week after being terminated from his position, Plaintiff
internally appealed the termination decision. Plaintiff
maintained “the people in charge did not give [him] the
opportunity to explain [his] side or state what happened in
actuality.” Plaintiff did not assert he was terminated because of
his age, ancestry, national origin, or any requests for medical
leave.
Because Pope had already been involved in the decision to
terminate Plaintiff’s employment, Whole Foods assigned Teresa
Bronson (Bronson), the team leader in Whole Foods’ human
resources department responsible for the Southern Pacific
Region, to handle Plaintiff’s appeal. Prior to this assignment,
Bronson had never met Plaintiff and was unaware of his age,
ancestry, national origin, or any medical condition.
Bronson interviewed Plaintiff by phone, using the services
of a Spanish language interpreter. Plaintiff denied he was
responsible for comingling meat products. He conceded, however,
that he performed a pork grind for Lilio prior to leaving for the
day, he did not clean the grinder after completing the grind, and
7
he did not log the grind. Plaintiff also admitted he understood
that his failure to clean the grinder and log the grind were policy
violations and that commingling meat products could result in
termination. During his telephone interview with Bronson,
Plaintiff did not report any mistreatment on the basis of age,
ancestry, national origin, or medical condition. The purpose of
the call, from Plaintiff’s perspective, was to request
reinstatement because he enjoyed working for Whole Foods “100
percent.”
After interviewing Plaintiff, Bronson reviewed email
correspondence regarding the incident, photographs of the
grinder, Plaintiff’s written statement, the grind logs, time records
for employees who worked in the Newport store’s meat and
seafood department, and training records. To more fully
understand the grind logs, Bronson consulted with an associate
meat coordinator. Bronson also spoke with a meat field
associate, who confirmed the photographs indicated pork was
ground after beef without the grinder being cleaned between the
two grinds. In addition, Bronson interviewed several others,
including Reese, Tolentino, Kittinger, Wight, Le Compte, and
Pope.
After completing her review of the evidence, Bronson
upheld Plaintiff’s termination. Reese eventually hired Octavio
Rodriguez, a 49-year-old Latino man, for the meat cutter position
left open after Plaintiff’s termination.
C. Plaintiff’s Lawsuit
Months later, Plaintiff sued Whole Foods and Tolentino for
age discrimination, discrimination on the basis of ancestry or
national origin, retaliation, harassment, failure to prevent
8
discrimination or harassment, and wrongful termination in
violation of public policy. According to the complaint, Plaintiff
was subjected to ageist comments by Tolentino, who purportedly
referred to Plaintiff as “slow” and “lazy,”6 and by Reese who
allegedly told him he would not have been terminated if he had
been “younger.” Plaintiff also alleged Whole Foods discriminated
against him on the basis of his national origin because a White
male co-worker at Newport store who violated company food
safety (the co-worker allegedly failed to wear a metal safety glove
and cut his hand, thereby spilling blood in the meat department)
was not terminated. Plaintiff further alleged he was harassed by
Tolentino because of his age and because he told Tolentino a
month before he (Plaintiff) was fired that he may need to use
medical leave to get treatment for a hernia. Plaintiff contended
defendants retaliated against him for complaining about
Tolentino’s ageist comments and for requesting medical leave.
D. Defendants’ Motion for Summary Judgment
Defendants moved for summary judgment. On the
discrimination causes of action, defendants argued Plaintiff could
not establish a prima facie case of discrimination and, even if he
could, Whole Foods had a legitimate, nondiscriminatory reason
for firing him (the food safety violations) that a trial jury could
not find pretextual. Defendants argued the retaliation cause of
action was defective because Plaintiff could not establish a causal
6
At a later deposition, Plaintiff would describe another
incident in which he claimed to overhear Tolentino say he would
not hire someone who applied for a meat cutter position because
the applicant, who appeared to be 55 to 60 years old, was “too
old.”
9
link between his termination and any protected activity; neither
Reese nor Pope, the people responsible for making the decision to
fire Plaintiff, were aware of Plaintiff’s complaint about ageist
comments by Tolentino or Plaintiff’s statement that he might
have to take time off in the future for hernia treatment. The
harassment claim failed, in defendants’ view, because there was
no evidence of severe or pervasive conduct to support a
harassment cause of action; the age-related comments Plaintiff
claimed to have heard Tolentino make occurred on one occasion
four months before Plaintiff’s termination.
Plaintiff opposed defendants’ motion for summary
judgment. In an effort to show Whole Foods’ reason for firing
him was pretextual, Plaintiff pointed in several directions:
Reese’s error in initially identifying the date of the commingled
meat grind as August 9 (instead of August 8); Tolentino’s own
asserted failure on the day of the incident to comply with Whole
Foods’ food safety policies (according to the grind logs, Tolentino
improperly logged certain grinds he performed as having been
performed by Plaintiff); Reese’s knowing approval of Tolentino’s
false entries on the grind log; and Reese’s failure to have an
interpreter present when he interviewed Plaintiff on the day
after the incident. Plaintiff also contended he was treated
differently from other employees, including Lilio—who was
neither investigated nor disciplined by Whole Foods even though
he was the one who asked Plaintiff to grind the pork. Plaintiff
additionally observed that Whole Foods did not fully comply with
its own Grinding Policy/Guidelines because the Newport store
was the only store in the region with only one meat grinder when
the guidelines specified two grinders should be located in each
store to avoid the risk of commingled meat.
10
Plaintiff’s declaration submitted in support of his
opposition averred he feared discrimination and retaliation from
Tolentino because he once watched him throw an angry tantrum
when one of Plaintiff’s coworkers called in sick. Plaintiff further
declared that, during his termination interview, Reese told him
he would not have been terminated if had been a “younger,” less
experienced worker. In addition to his own declaration, Plaintiff
submitted the declaration of Margarita Cardona (Cardona), a
former co-worker who stated she heard Tolentino describe
Plaintiff in January 2017 (some 20 months before his
termination) as “old,” “slow,” and “breaking down.” When
Cardona told Plaintiff about these remarks, Plaintiff complained
directly to Tolentino. Plaintiff also filed evidentiary objections to
the declarations of Reese, Pope, Lilio, and Bronson submitted in
support of defendants’ motion.
Defendants’ reply memorandum of points and authorities
argued there was no evidence any decision-maker was motivated
by Plaintiff’s age, ancestry, age-related comments by Tolentino,
or by the possibility that Plaintiff might seek leave to treat his
hernia sometime in the future. Defendants also filed evidentiary
objections to Plaintiff’s evidence, including the declarations
submitted by Plaintiff and Cardona.
E. The Trial Court’s Ruling
At the hearing on defendants’ motion for summary
judgment, Plaintiff focused much of his argument on what is
often confusingly called the “cat’s paw” doctrine; we shall refer to
11
it as the imputed motivation doctrine.7 The doctrine imputes
discriminatory animus harbored by one actor to another actor
who is (at least partly) responsible for taking the adverse action
against an employee. (See generally DeJung v. Superior Court
(2008) 169 Cal.App.4th 533, 551 [“[S]howing that a significant
participant in an employment decision exhibited discriminatory
animus is enough to raise an inference that the employment
decision itself was discriminatory, even absent evidence that
others in the process harbored such animus. [¶] This legal
principle has been colorfully referred to as the ‘cat’s paw’
doctrine”] (DeJung); Llampallas v. Mini-Circuits, Lab, Inc. (11th
Cir. 1998) 163 F.3d 1236, 1249 [“[E]ven when the harasser . . . is
not the decisionmaker, if the plaintiff shows that the harasser
employed the decisionmaker as her ‘cat’s paw’—i.e., the
decisionmaker acted in accordance with the harasser’s decision
without herself evaluating the employee’s situation [citation]—
causation is established”].) Relying on this imputed motivation
doctrine, Plaintiff argued Tolentino’s “fingerprints [we]re all
over” the firing decision. In response, defendants maintained the
doctrine was inapplicable because Tolentino was neither involved
in nor consulted on the termination decision. The court took the
mater under submission.
In a subsequently issued 26-page order, the trial court
granted defendants’ motion for summary judgment. In reaching
7
Plaintiff’s summary judgment opposition did not discuss or
refer to the doctrine. Defendants argued Plaintiff waived any
right to rely on imputed motivation doctrine by not discussing it
in his opposition, but the trial court considered and rejected an
imputed motivation theory of discrimination in its order granting
summary judgment.
12
its decision, the trial court sustained and overruled various
evidentiary objections by the parties without explanation.
Among other things, the court sustained defendants’ objections to
Plaintiff’s statements in his declaration about Tolentino’s
tantrum and Reese’s purported statement that Plaintiff would
not have been terminated if he had been younger. The court also
sustained Plaintiff’s objection to defendants’ rebuttal evidence.
Plaintiff did not ask for clarification of any of the court’s
evidentiary rulings.
On the discrimination causes of action, the trial court found
there was no evidence that those responsible for making the
decision to terminate Plaintiff (Reese and Pope) harbored
discriminatory motives.8 The court rejected as insufficient
Plaintiffs’ various attempts to undermine defendants’ proffered
reason for terminating him as pretextual (e.g., arguments about
different policy violations by Tolentino and the White male
coworker who cut his hand, the references to the incorrect August
9th date during Whole Foods’ investigation, and what Plaintiff
believed was an undue investigative focus on him). The court
further found Plaintiff’s effort to establish a triable issue of fact
on an imputed motivation theory was unavailing because the
evidence indicated Tolentino’s involvement in Whole Foods’
investigation of the commingled meat grind was negligible and
there was no evidence he influenced Reese and Pope’s
termination decision.
On the harassment cause of action, the trial court found
Plaintiff failed to establish he was subjected to severe or
8
In the same vein, the court specifically found there was no
evidence Reese or Pope were made aware of any ageist comments
by Tolentino.
13
pervasive harassment as a result of his age or disability.
Assuming Tolentino made the ageist comments attributed to him,
there was still no evidence these comments unreasonably
interfered with Plaintiff’s work performance.
On the retaliation claim, the trial court found Plaintiff had
no prospect of prevailing at trial because the evidence indicated
Reese and Pope were unaware of Plaintiff’s statement to
Tolentino that he may need to use medical leave at some point in
the future to treat his hernia or of the time when Plaintiff
confronted Tolentino about his use of ageist language overheard
by coworker Cardona.
Because Plaintiff failed to raise a triable issue of material
fact with regard to his causes of action for discrimination,
harassment, and retaliation, the trial court found defendants
were entitled to judgment as a matter of law on Plaintiff’s
derivative causes of action for failure to prevent discrimination or
harassment and wrongful termination in violation of public
policy.
II. DISCUSSION
The trial court correctly concluded defendants were entitled
to judgment as a matter of law.9 No trial was required on
9
Plaintiff’s challenge to the trial court’s evidentiary rulings
on summary judgment, which even he concedes do not “advance
specific evidentiary arguments” are not adequately presented and
are deemed waived for that reason. (See, e.g., Trinity Risk
Management, LLC v. Simplified Labor Staffing Solutions, Inc.
(2021) 59 Cal.App.5th 995, 1008 [“““When an appellant fails to
raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as
14
Plaintiff’s discrimination causes of action because he did not
present substantial evidence that Whole Foods’ stated reason for
firing him—his failure to comply with food safety policies—was
pretextual. No trial was required on Plaintiff’s harassment cause
of action because there was no evidence that would permit a jury
to find any comments by Tolentino unreasonably interfered with
Plaintiff’s work performance or that Plaintiff himself perceived
his work environment to be hostile. (Indeed, the evidence was
quite the contrary: Plaintiff testified he enjoyed his work at
Whole Foods “100 percent” and wanted to return following his
discharge.) No trial was required on Plaintiff’s retaliation cause
of action because there was no dispute of fact on causation;
specifically, there was no evidence the corporate actors
responsible for terminating Plaintiff’s employment were aware he
engaged in any protected activity. The remainder of Plaintiff’s
causes of action are all derivative of the claims we have already
mentioned, and no trial was accordingly necessary on those
either.
A. Defendants Were Entitled to Judgment as a Matter of
Law on the Discrimination Causes of Action Because
Plaintiff Did Not Raise a Triable Issue of Pretext
A defendant employer may seek summary judgment on a
former employee’s discrimination claim by presenting
“competent, admissible evidence” that the defendant took action
waived”””]; Delta Stewardship Council Cases (2020) 48
Cal.App.5th 1014, 1075 [refusing to address parties’ claims due to
its “conclusory presentation” because “conclusory claims of error
are deemed to be without foundation and require no discussion by
the reviewing court”].)
15
against the plaintiff for a legitimate, nondiscriminatory reason.
(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 357 (Guz).)
Absent direct evidence of discrimination—and there is none
here10—a plaintiff must defeat summary judgment “by pointing to
evidence which . . . raises a rational inference that intentional
discrimination occurred.” (Ibid.; Soria v. Univision Radio Los
Angeles, Inc. (2016) 5 Cal.App.5th 570, 582 [a plaintiff employee
may establish pretext by showing ““‘the proffered reason had no
basis in fact, the proffered reason did not actually motivate the
discharge, or, the proffered reason was insufficient to motivate
discharge’””].) If there is no substantial evidence that the
nondiscriminatory reason proffered by the employer is
pretextual, summary judgment for the defendant will be
appropriate. (DeJung, supra, 169 Cal.App.4th at 553 [“[T]he
employee must demonstrate a triable issue by producing
substantial evidence that the employer’s stated reasons were
untrue or pretextual, or that the employer acted with a
10
Plaintiff argues there was direct evidence in the form of
Tolentino’s ageist comments made long before Plaintiff was fired
(as well as evidence the trial court excluded that we do not
consider). The comments, however, came well before Plaintiff
was fired and do not constitute direct evidence of discrimination,
which is rarely found. (Trop v. Sony Pictures Entertainment, Inc.
(2005) 129 Cal.App.4th 1133, 1148; DeJung, supra, 169
Cal.App.4th at 550 [“Direct evidence is evidence which, if
believed, proves the fact of discriminatory animus without
inference or presumption. Comments demonstrating
discriminatory animus may be found to be direct evidence if there
is evidence of a causal relationship between the comments and
the adverse job action at issue”]; see also Guz, supra, at 354[“[D]irect evidence of intentional discrimination is rare”].)
16
discriminatory animus, such that a reasonable trier of fact could
conclude that the employer engaged in intentional
discrimination”]; see also Guz, supra, at 362 [summary judgment
for employer appropriate where, “given the strength of the
employer’s showing of innocent reasons, any countervailing
circumstantial evidence of discriminatory motive, even if it may
technically constitute a prima facie case, is too weak to raise a
rational inference that discrimination occurred”].)
In support of its motion for summary judgment, defendants
adduced strong evidence of a legitimate, nondiscriminatory
reason for terminating Plaintiff: his failure to comply with Whole
Foods’ food safety rules by commingling different species of meat,
failing to clean the grinder, and failing to log his last grind.
Supporting this reason were time records, employee schedules,
grind logs, interviews with percipient witnesses, consultations
with meat experts from outside the Newport store, and Plaintiff’s
own admission of committing major infractions (not cleaning the
grinder after his last grind or logging that grind) first to Reese
and later to Bronson.
The evidence Plaintiff offered to show this reason was mere
pretext for discrimination is arguably nonexistent and certainly
insubstantial. Plaintiff chiefly relies on Tolentino’s alleged bias
against Plaintiff. The problem for Plaintiff, however, is he has
presented no evidence—substantial or otherwise—that Tolentino
played a significant role in his firing.
Under the imputed motivation doctrine Plaintiff raised late
in the summary judgment process, he must adduce evidence “that
a significant participant in an employment decision exhibited
discriminatory animus.” (DeJung, supra, 169 Cal.App.4th at 551,
italics added; accord, Reeves v. Safeway Stores, Inc. (2004) 121
17
Cal.App.4th 95, 110 [plaintiff can establish causation by showing
that any “substantial contributor[ ]” to the decision bore the
requisite discriminatory animus]; see also Husman v. Toyota
Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1189-1190, 1192
[reversing summary judgment in employer’s favor because
executive who made discriminatory remarks was part of a
management committee which oversaw all termination decisions
and participated in plaintiff’s termination decision through
“extensive discussions” with the decision-maker].)
The documents and deposition excerpts upon which
Plaintiff relies show, at most, two things: (1) Tolentino was
effectively a potted plant presence 11 during the interview with
Reese and (2) Tolentino later told Plaintiff not to worry as it was
likely he would only get written up for his policy violations. That
is not enough to make Tolentino a significant participant.
Tolentino did not discover the commingled meat or initiate the
investigation (having left the store before Plaintiff on the day in
question); Reese, Pope, and others obtained virtually all
information sought during their investigation from other sources
(and the information Tolentino did give Reese about Plaintiff’s
training was duplicative of other sources); Tolentino was
excluded from the email correspondence between and among the
Newport store’s management, the regional meat team’s
leadership, and Whole Foods’ human resources department about
11
Joint Hearings Before the Sen. Select Com. on Secret
Military Assistance to Iran and the Nicaraguan Opposition, and
the House Select Com. to Investigate Covert Arms Transactions
with Iran, 100th Cong., 1st Sess., p. 263 (1987) [“Mr. Sullivan[:]
I’m not a potted plant. I’m here as a lawyer. That’s my job”].
18
how to respond to the food safety violation; and Tolentino had no
authority to terminate Plaintiff.
Plaintiff also suggests an adequate summary judgment
pretext showing on his national origin discrimination claim is
made by looking to other employees who did not comply with
Whole Foods rules but were not fired (e.g., Reese, Tolentino, and
the employee who cut his hand when not wearing a protective
glove). The comparisons are not probative of pretext, however,
because the circumstances of the asserted rules violations are
markedly different. No reasonable jury could view Plaintiff’s
complaints of dissimilar rules violations by other employees (or of
the absence of two meat grinding machines in the Newport store)
and conclude any or all suffice to show Whole Foods really fired
Plaintiff because of his El Salvadorian origin and not because of
his admitted meat grinding failures that led to unsafe
commingled meat.
In the absence of substantial evidence that Whole Foods’
food safety rules reason for firing Plaintiff was mere pretext for
discrimination, and with a wealth of evidence that this reason
had a basis in fact and actually motivated the discharge, the trial
court correctly concluded defendants were entitled to judgment as
a matter of law on Plaintiff’s discrimination causes of action.
B. Defendants Were Entitled to Judgment as a Matter of
Law on the Harassment Cause of Action Because
There Was No Evidence the Alleged Harassment
Unreasonably Interfered with Plaintiff’s Work
Performance
“[A]n employee claiming harassment based upon a hostile
work environment must demonstrate that the conduct
19
complained of was severe enough or sufficiently pervasive to alter
the conditions of employment and create a work environment
that qualifies as hostile or abusive to employees because of their
[protected status].” (Miller v. Department of Corrections (2005)
36 Cal.4th 446, 462; see also Aguilar v. Avis Rent A Car System,
Inc. (1999) 21 Cal.4th 121, 130-131 [a plaintiff must prove that
the defendant’s conduct would have interfered with a reasonable
employee’s work performance and would have seriously affected
the psychological well-being of a reasonable employee].) To be
actionable, a working environment must be “both objectively and
subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to
be so.’ [Citations.]” (Lyle v. Warner Bros. Television Prods. (2006)
38 Cal.4th 264, 284.) “[A]nnoying or ‘merely offensive’ comments
in the workplace are not actionable.” (Id. at 283.)
Plaintiff’s harassment claim rests on two comments by
Tolentino: the first, which was made in Plaintiff’s presence four
months before his termination, was that he wanted to hire a
“younger” meat cutter; the second, which was heard by Cardona
more than a year earlier and relayed to Plaintiff, was that
Tolentino described Plaintiff as “old,” “slow,” and “breaking
down.”12 Objectively, a jury could not find the comments on these
two occasions are severe or pervasive enough to create a hostile
work environment. (See, e.g., Jones v. Department of Corrections
& Rehabilitation (2007) 152 Cal.App.4th 1367, 1378-1379
12
Although Plaintiff alleged in his complaint the harassment
involved both his age and his medical condition, he testified at
his deposition that neither Tolentino nor anyone else at Whole
Foods ever made any inappropriate comments about his hernia or
his need for treatment.
20
[summary judgment appropriate where alleged sex harassment
constituted discrete, insufficiently severe events].) Subjectively,
the evidence also shows Plaintiff did not regard Tolentino’s
comments as creating a hostile work environment. He presented
no evidence that his work performance suffered as a result of the
alleged harassment and he in fact conceded that he enjoyed his
tenure at Whole Foods “100 percent” and wanted to be reinstated.
On the summary judgment record, no reasonable trier of
fact could find Tolentino’s comments sufficient to create a hostile
work environment.
C. Defendants Were Entitled to Judgment as a Matter of
Law on the Retaliation Cause of Action Because Those
Responsible for Making the Termination Decision
Were Not Aware of Any Protected Activity by Plaintiff
“[I]n order to establish a prima facie case of retaliation
under the FEHA, a plaintiff must show (1) he or she engaged in a
‘protected activity,’ (2) the employer subjected the employee to an
adverse employment action, and (3) a causal link existed between
the protected activity and the employer’s action.” (Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Courts have
observed that proof of retaliation often depends on circumstantial
evidence because it consists of “subjective matters only the
employer can directly know, i.e., his attitude toward the plaintiff
and his reasons for taking a particular adverse action.” (Mamou
v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) As a
result, “‘[t]he causal link may be established by an inference
derived from circumstantial evidence, “such as the employer’s
knowledge that the [employee] engaged in protected activities
and the proximity in time between the protected action and the
21
allegedly retaliatory employment decision.”’” (Fisher v. San
Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.)
Here, there was no evidence of a causal link between the
protected activity (Plaintiff’s complaint to Tolentino about his
ageist comments or Plaintiff’s advisement to Tolentino that he
might need to take medical leave sometime in the future to treat
his hernia) and the decision to terminate his employment. The
corporate actors responsible for the termination decision (Reese
and Pope) and its subsequent ratification (Bronson) were not
aware of any protected activity by Plaintiff. (Morgan v. Regents
of University of California (2000) 88 Cal.App.4th 52, 74
[affirming summary judgment for employer because “each of the
individuals who decided not to hire appellant for a particular
position disclaimed knowledge of the fact that appellant had
previously filed a grievance against the University. Without such
knowledge, these individuals could not have acted in retaliation
for appellant’s filing of the grievance”].)
D. Plaintiff’s Derivative Causes of Action
Because we conclude Plaintiff failed to establish any
genuine issues of material fact that could reasonably support a
decision in his favor on his FEHA discrimination, retaliation, and
harassment causes of action, his failure to prevent discrimination
or harassment and wrongful termination in violation of public
policy claims necessarily fail.
22
DISPOSITION
The judgment is affirmed. Defendants shall recover their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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