Cronin v. Pacific Gas & Electric Co. CA1/5 ( 2022 )

Filed 12/19/22 Cronin v. Pacific Gas & Electric Co. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
ADAM CRONIN,
Plaintiff and Appellant, A162715
v.
(City and County of San
PACIFIC GAS AND ELECTRIC Francisco Super Ct.
COMPANY, No. CGC18567919)
Defendant and Respondent.
Appellant Adam Cronin appeals from a trial court order granting
respondent Pacific Gas and Electric Company’s motion for summary
judgment as to four causes of action in appellant’s employment
discrimination suit.1 According to appellant, there remain triable issues of
material fact related to respondent’s termination of appellant’s employment,
an act alleged by appellant to have violated the California Family Rights Act
(CFRA), the Fair Employment and Housing Act (FEHA), Labor Code2 section
432.7, and public policy. We find no such issues in the record and affirm the
judgment accordingly.
The order also granted summary judgment as to another cause of
1
action not at issue in this appeal.
All subsequent references to statute are to the Labor Code, unless
2
otherwise noted.
1
I. BACKGROUND
In February 2017, appellant was working for respondent as a programs
manager when he filed an internal discrimination claim against supervisor
Alan Jones and Jones’s manager, Earle Davis. The complaint alleged that by
promoting a less qualified person and denying an appeal of an unfavorable
performance assessment, Jones and Davis had discriminated against
appellant for exercising his rights under CFRA. Davis subsequently became
aware of appellant’s intent to file complaints with the Department of Fair
Employment and Housing3 on the same grounds.
The next month, respondent’s corporate security department began an
investigation arising from allegations in a criminal complaint filed against
appellant in Solano County Superior Court. Those allegations suggested that
appellant might have violated respondent’s Code of Conduct by tampering
with an electricity meter without authorization. When respondent’s
corporate investigator Kevin Griswold attended appellant’s arraignment, he
heard the superior court judge order appellant to stay away from a certain
address. In the course of his investigation, Griswold learned that the address
was home to appellant’s ex-girlfriend, who accused appellant of entering her
property without permission, severing two electricity meters, and throwing
them in a ditch outside.
Appellant denied vandalizing the meters. When police found
appellant’s fingerprints on them, appellant claimed to have been “helping
with” the meters at an earlier time in order to address a potential safety
hazard. In an interview with Griswold, appellant repeated that claim, saying
that he “removed the meters a couple of weeks before the vandalism” incident
Effective June 30, 2022 the Department of Fair Employment and
3
Housing was renamed the Civil Rights Department. (Stats. 2022, ch. 48, § 4.)
2
in order to look for burn marks consistent with a connection issue in the
meter socket. Respondent’s Code of Conduct advises employees not to
“install, rearrange, remove, or tamper with company metering or service
equipment without proper approval and authorization,” but no work order
was ever issued for appellant’s removal of his ex-girlfriend’s meters.
Griswold wrote a report summarizing the findings of his investigation
and referring to a separate “crime report prepared by the Solano County
Sheriff’s Office” in relation to the vandalism incident. Griswold’s report
concludes that even if appellant’s claims were true, his admitted actions
“would still have been a violation of the . . . Code of Conduct.” The same
report featured prominently in a meeting held in early May by Vice President
of Customer Operations Scott Sanford, who reviewed the report’s contents
and discussed them with Davis and corporate security personnel. Sanford
decided to terminate appellant’s employment based on his admitted removal
of electrical meters in violation of the Code of Conduct.
After receiving notice of his termination, appellant filed the
employment discrimination suit at issue here. Respondent moved for
summary judgment, which was granted on April 21, 2021. This appeal
followed.
II. DISCUSSION
A. Standard of Review
“ ‘A trial court properly grants a motion for summary judgment where
“all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as a matter
of law.” (Code Civ. Proc. § 437c, subd. (c).) “Because this case comes before
us after the trial court granted a motion for summary judgment, we take the
facts from the record that was before the trial court when it ruled on that
3
motion. [Citation.] ‘ “We review the trial court’s decision de novo,
considering all the evidence set forth in the moving and opposing papers
except that to which objections were made and sustained.” ’ [Citation.] We
liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that
party.” ’ ” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347,
quoting Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59
Cal.4th 277, 286.)
However, “[w]e need not concern ourselves with the trial court’s
reasons for granting summary judgment.” (Le Bourgeois v. Fireplace Mfg.
(1998) 68 Cal.App.4th 1049, 1057, fn. 10.) “ ‘[W]here there is no genuine
issue of material fact, the appellate court should affirm the judgment of the
trial court if it is correct on any theory of law applicable to the case, including
but not limited to the theory adopted by the trial court. [Citations.] Thus, we
must affirm so long as any of the grounds urged by [the moving party], either
here or in the trial court, entitles it to summary judgment.’ ” (Ibid., quoting
Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.)4
B. First and Second Causes of Action (Violation of CFRA and
FEHA)
In his first cause of action, appellant alleged that his termination of
employment was a “violation of FEHA/CFRA” insofar as it interfered with his
rights to family care and medical leave under Government Code section
12945.2. In his second cause of action, appellant alleged that the termination
violated FEHA by both discriminating and retaliating against him for
availing himself of the same leave. For the purposes of both causes of action,
4 We therefore pass over appellant’s insistence that the trial court’s
order was “based on ‘confus[ion]’” or “ignor[ance].” Even if it were, that would
be irrelevant to the inquiry here.
4
appellant contended that the “reasons given” for the termination were
“pretextual.”
“In an employment discrimination case, an employer may move for
summary judgment against a discrimination cause of action with evidence of
a legitimate, nondiscriminatory reason for the adverse employment action.
[Citation.] A legitimate, nondiscriminatory reason is one that is unrelated to
prohibited bias and that, if true, would preclude a finding of discrimination.
[Citation.] The employer’s evidence must be sufficient to allow the trier of
fact to conclude that it is more likely than not that one or more legitimate,
nondiscriminatory reasons were the sole basis for the adverse employment
action.” (Featherstone v. Southern California Permanente Medical Group
(2017) 10 Cal.App.5th 1150, 1158 (Featherstone).)
“By presenting such evidence, the employer shifts the burden to the
plaintiff to present evidence that the employer's decision was motivated at
least in part by prohibited discrimination. [Citation.] The plaintiff's evidence
must be sufficient to support a reasonable inference that discrimination was
a substantial motivating factor in the decision. [Citation.] The stronger the
employer’s showing of a legitimate, nondiscriminatory reason, the stronger
the plaintiff’s evidence must be in order to create a reasonable inference of a
discriminatory motive.” (Featherstone, supra, 10 Cal.App.5th at
pp. 1158–1159.)
Here, respondent moved for summary judgment with evidence showing
that appellant “was terminated for admittedly violating the PG&E Employee
Code of Conduct, specifically the provision stating: ‘Don’t install, rearrange,
remove, or tamper with company metering or service equipment without
proper approval and authorization.’ ” That evidence included the Code of
Conduct, the corporate security report documenting appellant’s admission
5
that he had “removed the meters” at his ex-girlfriend’s house “a few weeks
before the vandalism” incident, and respondent’s letter informing appellant
that his “employment [was] being terminated as a result of violations of the
Company Code of Conduct.” In particular, the letter cited the fact that
appellant had “[t]ampered/removed company assets (metering service
equipment) without proper approval and authorization.”
An affidavit sworn by Griswold confirmed the security report’s account
of appellant’s admission. Further evidentiary support appears in the record
of appellant’s deposition, in which appellant testified that he removed the
meter in question in “October of 2015.” In another affidavit, Sanford declared
that he made the decision to terminate appellant’s employment on the basis
of the corporate security report’s conclusion that appellant had violated the
Code of Conduct by removing a meter. According to the affidavit, Sanford
was “not aware of any PG&E employee similarly situated, i.e., a PG&E
employee who admitted in the course of a corporate security investigation
that they had tampered with a meter without a PG&E work order or
authorization, who was not terminated.” Sanford spoke to Davis, who
separately declared that appellant’s “employment was terminated because he
violated [the] provision of the Code of Conduct” cited repeatedly here.
This evidence was sufficient to allow the trial court to “conclude that it
is more likely than not that [a] legitimate, nondiscriminatory” reason—
removing a meter in violation of the Code of Conduct—was “the sole basis for”
terminating appellant’s employment. (Featherstone, supra, 10 Cal.App.5th at
p. 1158.) As a result, respondent shifted to appellant the burden “to present
evidence that the employer’s decision was motivated at least in part by
prohibited discrimination.” (Id. at pp. 1158–1159.)
6
The only such evidence here relates to Sanford’s conversation with
Davis in anticipation of terminating appellant’s employment. As appellant
notes, he had filed against Davis a CFRA discrimination complaint that was
still pending at the time Sanford made his decision. In turn, appellant
contends that Davis’s discussion with Sanford shows that Sanford’s decision
was motivated by the CFRA complaint and the issues raised therein. As we
have already observed, however, the “stronger the employer’s showing of a
legitimate, nondiscriminatory reason, the stronger the plaintiff’s evidence
must be in order to create a reasonable inference of a discriminatory motive.”
(Featherstone, supra, 10 Cal.App.5th at p. 1159.)
Here, respondent produced overwhelming evidence in support of its
position that appellant’s employment was terminated for his admitted
removal of a meter. In contrast, appellant’s evidence does nothing to rebut
respondent’s contention. Appellant did not, for example, introduce evidence
contradicting Sanford’s suggestion that no similarly situated employee had
ever been treated differently. At most, appellant’s evidence raises the mere
possibility that Davis had an improper motive, without supporting any
reasonable inference imputing that motive to Sanford, who was the ultimate
decision-maker. For that reason, appellant’s evidence is not strong enough to
create a reasonable inference of discriminatory motive.
As a curiosity, we also note appellant’s self-serving statement that he
removed the meter to check for a “serious safety issue,” and thus, could not
have violated a Code of Conduct that urges employees to “put[] safety first”
and to “ ‘look[] for and interven[e] to stop unsafe acts.’ ” The evidentiary
value of such statements is minute. In the first place, even if the Code of
Conduct were so poorly written as to include such a broad “safety” loophole—
effectively blessing any otherwise-forbidden act when it is accompanied by
7
some subjective and self-attested belief about safety—it would not support an
inference that appellant’s termination for violating the Code of Conduct was
discriminatory. Secondly, when he removed his ex-girlfriend’s meter,
appellant was not “intervening to stop” any act, unsafe or otherwise; he was
committing an act, and one expressly proscribed by the Code of Conduct at
that. We are therefore unpersuaded by appellant’s argument from the Code’s
alleged inconsistency.
In sum, the trial court did not err in granting summary judgment as to
appellant’s first and second causes of action.
C. Third Cause of Action (Wrongful Termination in Violation of
Section 432.7)
In his third cause of action, appellant alleged that his termination
violated section 432.7, forbidding any employer to “utilize, as a factor in
determining any condition of employment including . . . termination, . . . any
record of arrest or detention that did not result in conviction.” On appeal,
appellant argues that there is a triable issue of material fact as to whether
respondent utilized the police report concerning his ex-girlfriend’s vandalized
meter as a factor in Sanford’s decision to terminate appellant’s employment.
As appellant observes, Sanford relied on Griswold’s security report, which
noted an “inconsistency . . . between [appellant’s] statement provided to
[Griswold] on May 2, 2017, and what he told Solano County Deputy J. Harris
on December 12, 2015.” And when deposed, Griswold testified that he
learned of appellant’s statement to the sheriff’s deputy from the sheriff’s
crime report about the vandalized meter.
However, “[t]he purpose of . . . section [432.7] is to prevent the misuse
of criminal offender records information; it does not prohibit an employer
from disciplining an employee where the employer independently
8
investigates the conduct giving rise to the arrest or detention.” (Pinheiro v.
Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458, 1471,
fn. 3.) Here, the security report relied upon by Sanford was the product of
Griswold’s independent investigation. Crucially, that investigation included
questioning appellant about the sheriff’s crime report. During Griswold’s
interview with appellant, appellant “admitted he had read the Crime Report .
. . .” He “was asked if he committed the crime described in the . . . crime
report . . . .”
It was in this context that Griswold asked appellant whether, “if
additional investigation was conducted,” there would “be any reason his
cellular phone would indicate he was in the area of his ex-girlfriend’s house”
at the time of the crime. Such a question about “additional investigation”
presupposes an initial investigation and would make little sense unless that
initial investigation had recorded appellant’s statement that he was not “in
the area of his ex-girlfriend’s house.” Thus, Griswold’s question was aimed
clearly at probing the veracity of appellant’s previous statement recorded in
the crime report Griswold and appellant were then discussing. And when
Griswold posed that question, appellant had every opportunity to disclaim
the statements ascribed to him by the crime report. In this way, even
appellant’s previous statements to police were investigated independently by
Griswold.
For that reason, there is no triable issue of material fact as to whether
the sheriff’s crime report was a factor in Sanford’s decision, which was based
on the corporate security report recounting Griswold’s independent
investigation. In sum, the trial court did not err in granting summary
judgment on that basis.
9
D. Fifth Cause of Action (Wrongful Termination in Violation of
Public Policy)
As for appellant’s fifth cause of action—a common law claim alleging
wrongful termination in violation of public policy—respondent rightly
observes that it “has no independent life.” “[W]hen a plaintiff relies upon a
statutory prohibition to support a common law cause of action for wrongful
termination in violation of public policy, the common law claim is subject to
statutory limitations affecting the nature and scope of the statutory
prohibition, but the common law claim is not subject to statutory procedural
limitations affecting only the availability and scope of nonexclusive statutory
remedies.” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 904.) Here,
as we have already concluded, summary judgment was properly granted as to
appellant’s statutory claims, and for substantive reasons—not procedural
ones. As a result, appellant cannot prevail on his common law claim.
III. DISPOSITION
The judgment is affirmed.
10
_________________________
Wiseman, J. *
We concur:
_________________________
Simons, Acting P.J.
_________________________
Burns, J.
Cronin v. Pacific Gas and Electric Co. / A162715
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
11