Torres v. Securitas Security Services USA Inc. ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JOSHUA TORRES, Case No. 21-cv-08745-BLF 8 Plaintiff, ORDER GRANTING DEFENDANT'S 9 v. MOTION FOR SUMMARY JUDGMENT 10 SECURITAS SECURITY SERVICES USA INC., [Re: ECF No. 31] 11 Defendant. 12 13 Plaintiff Joshua Torres brought this employment action against his former employer, 14 Defendant Securitas Security Services USA, Inc. (“Securitas” or “SUSA”). He alleges that he was 15 wrongfully terminated in violation of California statute. Defendant filed the instant motion for 16 summary judgment. ECF No. 31 (“MSJ”); see also ECF No. 34 (“MSJ Reply”). Plaintiff opposes 17 the motion. ECF No. 33 (“MSJ Opp.”). The Court held a hearing on the motion on March 23, 18 2023. See ECF No. 36. For the reasons explained below, the Court GRANTS Defendant’s 19 motion for summary judgment. 20 I. BACKGROUND 21 The Court summarizes the evidence presented to it on the motion for summary judgment. 22 The Court notes that Plaintiff provided no evidence in support of his opposition. And his 23 Complaint is not verified, so the Court does not accept the allegations in the Complaint as 24 evidence in support of Plaintiff’s opposition. 25 A. Hiring and Initial Placements 26 Defendant is a private security services company. Torres was employed by Securitas from 27 approximately April 24, 2019 until his termination of employment on or about April 1, 2021. 1 Plaintiff acknowledged that the post to which he was assigned was not permanent and could be 2 changed at any time. Id. ¶ 7. On April 24, 2018, he signed Defendant’s Employment Standards 3 Acknowledgement, which reads: 4 I am an employee of Securitas and I am not employed by the client or facility to which I am assigned. I understand that I can expect 5 transfers among facilities from time to time, which may include varying locations, hours, and/or changes in rates of pay, based upon 6 the client contract and business needs of the Company. I understand that work schedules are not guaranteed and that a work week may 7 vary as required by Securitas. 8 Id. ¶ 7, Ex. C. Plaintiff also acknowledged receipt of Defendant’s Security Officer Handbook. Id. 9 ¶ 8, Exs. D, E; Declaration of Frank Magananimo, ECF No. 31-3 (“Magananimo Decl.”), Ex. L 10 (“Plaintiff Depo.”) at 52:17-53:14. The Handbook prohibits discrimination and harassment based 11 on gender, sex, sexual orientation, pregnancy, childbirth or related medical conditions, race, 12 religious creed, color, national origin, ancestry, physical disability, mental disability, medical 13 condition, genetic information, citizenship status, marital status, military or veteran status, age, or 14 other protected characteristic which violates local, state and/or federal law, and includes policies 15 regarding proper time keeping, uniforms and appearance, use of company and client property, and 16 actions that warrant immediate termination—including misuse of client property, insubordination 17 or derogatory behavior, falsification of company records, disruptive or inappropriate conversations 18 at work, and use of alcohol on company premises. Klomp Decl. ¶ 8, Ex. D at 17-20, 100-105, 19 113. The Handbook also stated that employees’ pay may fluctuate based on assignment. Id. ¶ 8, 20 Ex. D at 73. Plaintiff understood that different accounts or sites had different pay rates pursuant to 21 their contracts with Securitas. Plaintiff Depo. at 196:19-22. From April 2019 through January 22 2020, Torres worked for the Securitas Healthcare Region at Kaiser Permanente sites in San 23 Francisco. Klomp Decl. ¶ 6. 24 B. Amazon Placement and Move to Wells Fargo 25 In January 2020, Plaintiff was transferred to the Pacific Region, and he was assigned to the 26 client site Amazon Inc. (“Amazon”) as a site supervisor. Klomp Decl. ¶ 6; Plaintiff Depo. at 27 41:14-17. In this position, he was the highest-ranking Securitas employee at the site. Declaration 1 supervised two private security officers (“PSOs”) during each shift. Desai Decl. ¶ 3; Plaintiff 2 Depo. at 42:8-10. 3 In October 2020, the Amazon Area Security Manager Andrew LoCicero requested that 4 Plaintiff be removed from the Amazon facility based on his performance. Desai Decl. ¶ 6; 5 Declaration of Whitley Beasley, ECF No. 31-6 (“Beasley Decl.”) ¶ 6, Ex. A. Plaintiff had failed 6 to report policy violations committed by his subordinates to the District Manager or Watch 7 Commander. Beasley Decl. ¶ 6, Ex. A. Throughout Plaintiff’s placement at Amazon, Kunjan 8 Desai, a Securitas Program Director, had multiple conversations with LoCicero in which LoCicero 9 complained about Plaintiff’s performance, including failures of reporting priority incidents to the 10 chain of command at Securitas, overall customer service failures, and an inability to follow 11 procedures. Desai Decl. ¶ 6. 12 The Securitas Area Human Resources Office recommended counseling Torres while an 13 adequate replacement was found. Desai Decl. ¶ 7; Klomp Decl. ¶ 9. Securitas began the search 14 for a replacement and in February 2021, when an adequate replacement was found, Defendant 15 removed Plaintiff from Amazon and transferred him to a new site, Wells Fargo. Desai Decl. ¶ 7; 16 Klomp Decl. ¶ 9. On February 18, 2021, Plaintiff’s last day assigned to Amazon Desai wrote: 17 “[t]he removal of Torres from site is coming from repeated client requests. As mentioned in the 18 past, . . . we have had at least 6 different incidents in the past 6 months that have pushed us to 19 make this decision.” Klomp Decl. ¶ 10, Ex. F. The Wells Fargo position was the closest open 20 post to Plaintiff’s previous position considering Plaintiff’s pay and stated travel restrictions; there 21 was a reduction in pay from $25.00/hour to $22.00/hour. Id. ¶ 9. Securitas did not have any 22 intention of terminating Plaintiff’s employment at that time. Id. 23 C. Investigation 24 While assigned to the Amazon facility, Plaintiff communicated with other members of the 25 security team using Amazon’s internal instant messaging software, Chime. Klomp Decl. ¶ 11. 26 Amazon can monitor Chime messages, but Securitas HR personnel cannot. Id. Plaintiff 27 understood that Chime was to be used for business purposes only and that it was his responsibility 1 Depo. at 64:17-19, 66:2-7. 2 After his removal from Amazon and contrary to company policy, Plaintiff continued to use 3 Chime to communicate with his former subordinates at the Amazon site. Klomp Decl. ¶ 13. 4 Amazon notified Securitas of the violation in late February 2021. Id.; Desai Decl. ¶ 8, Ex. H. 5 On March 5, 2021, Jorge Venegas, a security officer who Plaintiff had supervised at the 6 Amazon site, made a complaint to Securitas about Plaintiff’s behavior. Klomp Decl. ¶ 12. 7 Securitas conducted an investigation into Plaintiff’s conduct at Amazon. Id. ¶¶ 12-18, Ex. B. As 8 part of his complaint, Venegas provided to Defendant copies of pages of Chime messages 9 involving Defendant. Id. ¶ 12, Ex. G. 10 Defendant conducted an HR investigation, which revealed Plaintiff frequently engaged in 11 activities in violation of SUSA’s policies. See Klomp Decl. ¶¶ 12-18, Ex. G. Plaintiff admitted 12 that he used Chime to communicate with Venegas regarding non-work-related matters, including 13 by sending pornographic material and using profanity. Plaintiff Depo. at 64:17-66:18. 14 On May 11, 2020, Plaintiff sent a Chime message to Venegas suggesting he was planning 15 to leave his post: “Think I should take it and just pick up my daughter and be [back] by 1800?” 16 Klomp Decl. ¶ 12, Ex. G. Plaintiff continued the conversation, asking Venegas not to reveal he 17 had left and to “keep it on the DL.” Id. 18 On July 2, 2020, Plaintiff sent messages to Venegas stating, “stupid bitch I fucking hate 19 her” and “let’s see what the bitch says,” in reference to his female supervisor, District Manager 20 Whitley Beasley. Klomp Decl. ¶ 12, Ex. G; Plaintiff Depo. at 244:12-246:2; 247:24-248:16. 21 On July 1, 2020, Plaintiff and Venegas discussed a new female trainee who came to the 22 site to complete paperwork over Chime. Klomp Decl. ¶ 12, Ex. G. They compared her to actress 23 “S[a]lma [Hayek] when she was 17-18.” Id. Plaintiff further remarked about the new trainee’s 24 physical appearance exclaiming, “definitely a goddess for sure!” Id. When asked about the 25 comments during his deposition, Plaintiff responded, “that was a joke because Jorge [Venegas] is 26 really into [Salma Hayek].” Plaintiff Depo. at 235:5-236:16. 27 That same day, Plaintiff wrote that he planned to come to Amazon on his day off “for a 1 admitted he wrote these messages. Plaintiff Depo. at 238:23- 242:20. 2 On September 29, 2020, Plaintiff wrote about the multiple times he “covered” for officers 3 and chose not to issue write ups, creating open posts: “You have been late like 90% of your shifts 4 man. And I never trip. What[,] I don’t cover for Leonor until 5[?] and I have to take off early on 5 Fridays to pick up my daughter that’s no big secret. And what[,] do I not let Steven go home to 6 take out his dog[?]. Do I not make the schedule for David to get o.t and have the the [sic] days he 7 wants off [?]. So I don[’]t see how anyone can say shit about me not helping out and no it 8 wouldn’t be missing hours you’d be fired already. But I’m not like Nick and I know life happens 9 and I know you’re a good dude and you have helped me out to so I don[’]t see what place your trip 10 is coming from but if you have a problem with the way I run things you can talk to Whitley or 11 Rios.” Klomp Decl. ¶ 12, Ex. G. On October 28, 2020, Plaintiff, in a message to Venegas, stated 12 he was “letting [him] be late easily 80-% of [his] shifts?” Id. This suggested to Defendant that 13 Plaintiff allowed his subordinates to record time they were actually not working. Id. 14 On December 31, 2020, when Venegas was leaving early, at 8:00 p.m., Torres wrote, 15 “Man you can write 2030 [on your timesheet] I don't care.” Klomp Decl. ¶ 12, Ex. G. 16 Plaintiff also made comments on Chime based on PSOs’ race and national origin. Klomp 17 Decl. ¶ 12. In one example, Plaintiff wrote about a PSO he refers to as “the Russian,” stating, 18 “watch out he survived Communism and the cold war I don’t want him to Snipe you.” Id. On 19 July 1, 2020, Plaintiff wrote, “I wonder if any officer would even notice if I keep the same picture 20 for all the Asian dudes but use a different name?” Id. When asked about the statement during his 21 deposition testimony, Plaintiff acknowledged he wrote the statement and that he could see how it 22 could be discriminatory in nature. Plaintiff Depo. at 236:21-238:22. 23 As part of his duties, Plaintiff was required to review timesheets for accuracy, and ensure 24 that PSOs stationed at the Amazon facility arrived to and left their posts on time based on the pre- 25 set schedule. Beasley Decl. ¶ 5. SUSA required PSOs stationed at the Amazon facility to remain 26 at the facility during their meal and rest breaks, as they were paid breaks. Id. Plaintiff testified 27 that as the highest-level SUSA employee at the Amazon facility, he understood he was responsible 1 take extensive breaks, and accurately filled out their timesheets. Plaintiff Depo. at 42:19-21, 46:9- 2 12, 47:10-13, 48:18-21. 3 Plaintiff allowed the PSOs to leave the site, leaving an open post and no PSO available to 4 respond in case of an emergency. Klomp Decl. ¶ 12. On February 18, 2020, in a Chime message 5 between Plaintiff and Venegas, Plaintiff wrote, “I am 100% ok with people going outside for 6 lunch as long as they stay withi[n] a few blocks in case shit goes south.” Id. ¶ 12, Ex. G. This 7 was contrary to SUSA’s directive that PSOs at the site remain at the facility for their 30-minute 8 on-duty meal periods. See Beasley Decl. ¶ 5. 9 Based on Plaintiff’s Chime messages, SUSA was prompted to verify the hours Plaintiff 10 claimed he worked while positioned at Amazon from December 2020 to January 2021. 11 Declaration of David Hull, ECF No. 31-2 (“Hull Decl.”) ¶ 5. To do so, Plaintiff’s timesheets were 12 compared with his badge swipe in/out times to access the facility. Id. ¶¶ 6-8, Ex. J; Plaintiff Depo. 13 at 97:14-22. After comparing the records, Klomp came to the conclusion Plaintiff had falsified his 14 timesheets, and as a result was paid for over 33.18 hours he did not work during the span of two 15 months. Hull Decl. ¶ 8. 16 On March 24, 2021, as part of her investigation, Gina Klomp, Defendant’s Area Human 17 Resources Manager, interviewed Plaintiff. Klomp Decl. ¶ 14. During the investigation as well as 18 in his deposition, Plaintiff admitted he brought alcohol to the work site and drank the alcohol at 19 the site. Id. ¶ 15; see Plaintiff Depo. at 238:23-242:20. Defendant’s policies prohibit the use of 20 alcohol on company property. Klomp Decl., Ex. D at 23. During the investigation, Plaintiff also 21 admitted he left the client site early and falsified his time records “a couple of times.” Id. ¶ 15. 22 Klomp also informed Plaintiff his timesheets were compared to his badge in/out swipes and it was 23 determined he falsified over 33 hours in two months. Id.; Hull Decl. ¶ 8; Ex. J; see Plaintiff Depo. 24 at 116:12-15. 25 D. Termination 26 Based on the results of this investigation, Klomp and Joel Hayes, the Pacific Region’s 27 Employee Relations Manager, decided to terminate Plaintiff’s employment. Klomp Decl. ¶ 19. 1 Plaintiff he was suspended, pending further investigation. Hull Decl. ¶ 10; Ex. K. SUSA 2 instructed Plaintiff not to report for duty until further notice. Id. 3 Before terminating Plaintiff’s employment, Klomp contacted other employees who were in 4 contact with Plaintiff daily to verify the violations revealed in the Chime messages. Klomp Decl. 5 ¶ 16. On April 1, 2021, Klomp notified Plaintiff of the termination of his employment after the 6 conclusion of the investigation which revealed he exhibited inappropriate conduct and violated 7 company policies. Id. ¶ 17, Ex. I. 8 E. Plaintiff’s Allegations 9 As stated above, Plaintiff has provided no evidence to create a dispute of fact as to 10 Defendant’s motion. The Court will summarize the allegations in Plaintiff’s complaint. Plaintiff 11 alleges that he was “wrongfully terminated for properly reporting breaches of security protocol, in 12 addition to breaches of covid-related screening protocols intended to protect the health of on-site 13 employees.” ECF No. 1, Ex. 1 (“Compl.”) ¶ 8. The Court does not consider these allegations as 14 evidence but recites them only to give context to Defendant’s argument and evidence in support of 15 its motion. 16 Plaintiff identifies a few incidents. First, he alleges that on or about October 2020, he was 17 off-duty when an officer called him, informing him that there was a breach of security protocol at 18 the Amazon facility. Compl. ¶ 9. Plaintiff alleges that he called his supervisor without success, so 19 he reached out to Dierdre De Meideros and Robert Lackey, Amazon corporate security managers. 20 Id. After the incident, Plaintiff’s supervisor Jesus Rios allegedly told him to file a Securitas 21 incident report and not to tell Amazon about the breach. Id. Soon thereafter, the Securitas team 22 found a laptop left unattended at the Amazon location, so Plaintiff contacted his supervisor, who 23 removed the laptop. Id. ¶ 10. Torres alleges that his supervisor told him not to report the incident 24 to Amazon. Id. 25 Plaintiff then alleges that, on or about December 2020 to January 2021, he told De 26 Meideros and Lackey that Securitas management often hid security breaches. Compl. ¶ 11. 27 Lackey then launched an investigation and found other warehouses where Securitas officers were 1 Plaintiff also alleges that, on or about February 12, 2021, there was an incident in which 2 Amazon employees were caught using other employees’ badges and evading Covid-19 screenings. 3 Compl. ¶ 12. Plaintiff alleges that he called the Watch Commander twice, attempted to message 4 Rios, and tried to call his captain, but he was unable to reach any of them. Id. He then allegedly 5 called De Meideros and Lackey to report the incident. Id. 6 F. Procedural History 7 On August 13, 2021, Plaintiff filed suit against Defendant in Santa Clara County Superior 8 Court. See ECF No. 1. He brings a cause of action in violation of Labor Code § 1102.5. See id. 9 Defendant filed an Answer on November 9, 2021. See id. On November 10, 2021, Defendant 10 removed the action to this Court. See id. 11 On February 13, 2023, Defendant filed the instant motion. See MSJ. 12 II. LEGAL STANDARD 13 “A party is entitled to summary judgment if the ‘movant shows that there is no genuine 14 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 15 Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. P. 16 56(a)). “The moving party initially bears the burden of proving the absence of a genuine issue of 17 material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex 18 Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Where the non-moving party bears the burden of 19 proof at trial, the moving party need only prove that there is an absence of evidence to support the 20 non-moving party's case.” Id. (citing Celotex, 477 U.S. at 325). 21 “Where the moving party meets that burden, the burden then shifts to the non-moving 22 party to designate specific facts demonstrating the existence of genuine issues for trial.” Oracle, 23 627 F.3d at 387 (citing Celotex, 477 U.S. at 324). “[T]he non-moving party must come forth with 24 evidence from which a jury could reasonably render a verdict in the non-moving party’s favor.” 25 Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). “The court must view the 26 evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the 27 nonmovant's favor.” City of Pomona, 750 F.3d at 1049 (citing Clicks Billiards Inc. v. Sixshooters 1 rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Id. at 2 1049-50 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 3 (1986)). 4 III. ANALYSIS 5 Defendant brings a motion for summary judgment on Plaintiff’s sole claim for retaliation 6 in violation of California Labor Code § 1102.5. See MSJ. 7 A. Statutory Framework 8 “Section 1102.5 provides whistleblower protections to employees who disclose 9 wrongdoing to authorities.” Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703, 709 10 (2022). “As relevant here, section 1102.5 prohibits an employer from retaliating against an 11 employee for sharing information the employee ‘has reasonable cause to believe . . . discloses a 12 violation of state or federal statute’ or of ‘a local, state, or federal rule or regulation’ with a 13 government agency, with a person with authority over the employee, or with another employee 14 who has authority to investigate or correct the violation.” Id. (quoting Cal. Labor Code § 15 1102.5(b)). Section 1102.5 “reflects the broad public policy interest in encouraging workplace 16 whistle-blowers to report unlawful acts without fearing retaliation.” Id. (quoting Green v. Ralee 17 Eng’g Co., 19 Cal. 4th 66, 77 (1998)). “An employee injured by prohibited retaliation may file a 18 private suit for damages.” Id. 19 The California Supreme Court recently clarified that “[California Labor Code] section 20 1102.6, and not McDonnell Douglas, supplies the applicable framework for litigating and 21 adjudicating section 1102.5 whistleblower claims.” Lawson, 12 Cal. 5th at 712. Section 1102.6 22 sets forth a two-step framework. See id. “First, it places the burden on the plaintiff to establish, 23 by a preponderance of the evidence, that retaliation for an employee’s protected activities was a 24 contributing factor in a contested employment action.” Id. at 718. “Once the plaintiff has made 25 the required showing, the burden shifts to the employer to demonstrate, by clear and convincing 26 evidence, that it would have taken the action in question for legitimate, independent reasons even 27 had the plaintiff not engaged in protected activity.” Id. 1 framework under § 1102.6. Plaintiff argues that disputed facts preclude summary judgment. 2 B. Step One 3 Defendant argues that it is entitled to summary judgment because (1) Torres did not 4 engage in protected activity and (2) there is no causal connection between the alleged protected 5 activity and the adverse employment action. MSJ at 13-18. The Court will address each argument 6 in turn. 7 1. Protected Activity 8 Defendant argues that Plaintiff did not engage in any protected activity. MSJ at 13-17. 9 Section 1102.5 provides: 10 An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or 11 because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to 12 a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or 13 noncompliance, . . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or 14 a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of 15 the employee's job duties. 16 Cal. Labor Code § 1102.5(b). Defendant argues that Plaintiff cannot show retaliation because he 17 did not disclose any violations of law and he did not disclose the information to an applicable 18 individual. MSJ at 14-17. The Court will address each argument. 19 First, Defendant argues that Plaintiff reported security breaches, not violations of law. 20 MSJ at 14-17. The statute forbids retaliation against an employee for disclosing information if the 21 employee has “reasonable cause to believe that the information discloses a violation of state or 22 federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” 23 Cal. Labor Code § 1102.5(b). “An employee engages in protected activity when he ‘discloses . . . 24 reasonably based suspicions of illegal activity.’” Fitzgerald v. El Dorado Cnty., 94 F. Supp. 3d 25 1155, 1172 (E.D. Cal. 2015) (quoting Mokler v. Cnty. of Orange, 157 Cal. App. 4th 121, 138 26 (2007)) (emphasis in original). “The employee must ‘reasonably believe []he was disclosing a 27 violation of state or federal law.’” Id. (quoting Patten v. Grant Joint Union High Sch. Dist., 134 1 of illegal activity, the employee must be able to point to some legal foundation for his suspicion— 2 some statute, rule or regulation which may have been violated by the conduct he disclosed.” Id. 3 (citing Love v. Motion Indus., Inc., 309 F. Supp. 2d 1128, 1135 (N.D. Cal. 2004)). “The employee 4 must have an actual belief that the employer’s actions were unlawful and the employee’s belief, 5 even if mistaken, must be reasonable.” Tam v. Qualcomm, Inc., 300 F. Supp. 3d 1130, 1148 (S.D. 6 Cal. 2018) (citing Carter v. Escondido Union High Sch. Dist., 148 Cal. App. 4th 922, 933-34 7 (2007)). 8 In his opposition brief, Plaintiff points to California Labor Code § 6400, which provides: 9 “Every employer shall furnish employment and a place of employment that is safe and healthful 10 for the employees therein.” MSJ Opp. at 4 (citing Cal. Labor Code § 6400(a)). He argues that he 11 notified Amazon of breaches of security protocols and Covid-19 screening protocols, which could 12 implicate a reasonable belief that the law requiring a safe and healthful workplace were being 13 violated. Id. The Court recognizes that Covid-19 screening protocols were important to 14 workplace health and safety. But Plaintiff does not provide any evidence that he believed that 15 there was any violation of law. There is no declaration by Plaintiff. The Court does not even get 16 to the question of whether any belief was reasonable, because Plaintiff has not provided any 17 evidence that he had a belief that he was reporting illegal activity. Attorney argument is not 18 sufficient. 19 Second, Defendant argues that Plaintiff did not report the alleged violation to anyone 20 covered by the statute. MSJ at 17. The statute forbids retaliation against an employee who makes 21 a report “to a government or law enforcement agency, to a person with authority over the 22 employee or another employee who has the authority to investigate, discover, or correct the 23 violation or noncompliance.” Cal. Labor Code § 1102.5(b). 24 Here, Plaintiff alleges he made the report to Lackey and De Meideros. Compl. ¶¶ 9-12. 25 Defendant provides evidence that neither is an Amazon corporate security manager, as alleged by 26 Defendant. Desai Decl. ¶ 9. Lackey was a security manager employed by a third-party vendor, 27 Touchstone Global. Id. Plaintiff stated that he was aware that he did not work for Lackey. 1 authority over Torres. Desai Decl. ¶ 9; Klomp Decl. ¶ 21. He also was not “another employee 2 who ha[d] the authority to investigate, discover, or correct the violation or noncompliance.” First, 3 he was not an employee of Securitas. And further, Desai states in a declaration that Lackey had no 4 authority to investigate any alleged security breaches that Plaintiff reported. Desai Decl. ¶ 9. 5 Defendant also provides that De Meideros was an executive assistant employed by Amazon. Id. 6 Desai and Klomp both state in declarations that she had no influence over Torres’s employment 7 with Securitas. Id.; Klomp Decl. ¶ 21. Nor was she “another employee who ha[d] the authority to 8 investigate, discover, or correct the violation or noncompliance.” Plaintiff provides no evidence to 9 create a dispute of fact that either Lackey or De Meideros had any authority over him. Nor does 10 he provide any evidence that Lackey or De Meideros were employees with authority to 11 investigate, discover, or correct any reported violation. 12 The Court determines that Plaintiff has not created a dispute of fact as to whether he 13 engaged in protected activity. 14 2. Causal Connection 15 Defendant argues that there is no causal nexus between the alleged protected activity and 16 the alleged adverse employment action. MSJ at 18. Defendant argues that there was no causal 17 connection as to either Torres’s removal from the Amazon facility or his termination from 18 Securitas. Id. Torres does not argue that his move from the Amazon facility to Wells Fargo was 19 an adverse employment action; his argument is only as to his termination. See MSJ Opp. The 20 Court will therefore focus on that issue. 21 Defendant argues that there was no causal connection between Torres’s alleged protected 22 activity and his termination from Securitas. MSJ at 18. Securitas asserts that he was terminated 23 due to the investigation and nothing else. Id. Further, Securitas argues that Klomp and Hayes, 24 who made the decision to terminate Plaintiff’s employment, were not aware of the reports that 25 Plaintiff had allegedly made to the individuals at Amazon when they made the decision to 26 terminate his employment. Id. 27 Only at the hearing did Plaintiff raise for the first time that he was entitled to an inference 1 Court allowed supplemental briefing, in which Plaintiff argues that the temporal proximity of his 2 alleged protected activity and termination is sufficient to create a triable issue of fact as to 3 causation. ECF No. 38 (“PSupp.”). He argues that because he made a report in February 2021 4 and his employment was terminated in April 2021, the Court can infer a causal connection. Id. 5 In the context of a retaliation claim brought under Title VII of the Civil Rights Act, the 6 Ninth Circuit stated, “[t]hat an employer’s actions were caused by an employee’s engagement in 7 protected activities may be inferred from ‘proximity in time between the protected action and the 8 allegedly retaliatory employment decision.’” Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 9 2000) (quoting Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)). And in another Ninth 10 Circuit case, in which the plaintiff brought suit under Title VII and Washington state law, the 11 Ninth Circuit recognized that it has “held that causation may be established based on the timing of 12 the relevant actions.” Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 13 507 (9th Cir. 2000). It went on to explain that “when adverse employment decisions are taken 14 within a reasonable period of time after complaints of discrimination have been made, retaliatory 15 intent may be inferred.” Id. Plaintiff also points the Court to one state court case brought under 16 the California Fair Employment and Housing Act in which the court determined there was 17 “sufficient circumstantial evidence from which a trier of fact could conclude that there is a causal 18 link,” including the fact that the plaintiff was terminated only a few months after the protected 19 activity, even though he had worked for the company for four years. Flait v. N. Am. Watch Corp., 20 3 Cal. App. 4th 467, 478 (1992). 21 But the Ninth Circuit has also recognized, again in the context of a Title VII claim, that 22 “[e]ssential to a causal link is evidence that the employer was aware that the plaintiff had engaged 23 in the protected activity.” Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). Plaintiff 24 has not pointed to any case law to show that temporal proximity is sufficient to show a causal link 25 even when there is no dispute of fact that the individuals who made the decision to terminate did 26 not have knowledge of the alleged protected activity. In one of the cases that Plaintiff cites, 27 discussed above, the court recognized there was “sufficient circumstantial evidence from which a 1 considered the close temporal proximity, but it also pointed to evidence “that the same highly 2 placed corporate officer who made the offending comments was also responsible for [plaintiff’s] 3 termination, which is probative of [defendant company’s] knowledge that [plaintiff] had engaged 4 in protected activity. Id. Here, Klomp states in a declaration that only she and Hayes were 5 involved in the decision to terminate Plaintiff, and she was not aware of his alleged reports to 6 Amazon at the time that they made the decision to terminate his employment. Klomp Decl. ¶¶ 17- 7 20. Torres has not provided any evidence to create a dispute of fact on this issue. 8 The Court is not convinced that temporal proximity is sufficient to create a dispute of fact 9 as to whether there was a causal connection in the absence of any dispute of fact as to knowledge. 10 But the Court need not rely on this determination, as it already found there was no protected 11 activity. 12 * * * * * 13 Here, there is no dispute of fact as to whether retaliation for protected activities was a 14 contributing factor in Plaintiff’s termination. Defendant is therefore entitled to summary 15 judgment. 16 C. Step Two 17 Defendant also argues that it is entitled to summary judgment on step two of the retaliation 18 analysis. MSJ at 18-20. Having concluded that Defendant is entitled to summary judgment at 19 step one, the Court need not reach step two. But it will do so for the sake of completeness. 20 At step two, the employer has the burden of proof to demonstrate by clear and convincing 21 evidence that it would have taken the alleged adverse action for legitimate, independent reasons 22 even had the plaintiff not engaged in protected activity. See Lawson, 12 Cal. 5th at 718. And 23 Defendant has clearly met that burden here. 24 The Securitas Security Officer Handbook, of which Plaintiff also acknowledged receipt, 25 prohibits discrimination and harassment based on a variety of protected characteristics, and it 26 includes policies regarding proper time keeping and use of company and client property. See 27 Klomp Decl. ¶ 8, Ex. D; Plaintiff Depo. at 52:17-53:14. It also identifies actions that warrant 1 or derogatory behavior, falsification of company records, disruptive or inappropriate conversations 2 at work, and use of alcohol on company premises. Klomp Decl., Ex. D at 100-103. Here, 3 Defendant has provided evidence that Torres used alcohol on company premises. Klomp Decl. 4 4 15; Plaintiff Depo. at 238:23-242:20. Defendant has also provided evidence that Plaintiff falsified 5 his own timecards, resulting in over 33 hours of extra pay for work not performed over a two- 6 |} month period. Klomp Decl. 4 15; Hull Decl. § 8, Ex. J. Defendant has submitted evidence that 7 Plaintiff continued to use Chime after being moved from the Amazon facility. Klomp Decl. □□ 13; 8 || Desai Decl. § 8, Ex. H. Defendant also submitted evidence that Plaintiff had conversations and 9 |} made comments on Chime that would constitute “inappropriate conversations” and/or “derogatory 10 || behavior,” such as sending pomographic materials, using profanity, referring to his supervisor as a 11 “bitch,” and asking “if any officer would even notice if [he] ke[pt] the same picture for all the 12 Asian dudes.” Klomp Decl. J 12, Ex. G; Plaintiff Depo. at 64:17-66:18, 236:21-238:22, 244:12- 5 13 246:2, 247:24-248:16. Plaintiff has submitted no evidence to create a dispute of fact that any of 14 || these incidents occurred. 3 15 Securitas has shown by clear and convincing evidence that it would have terminated Torres 16 || for legitimate, independent reasons, despite any alleged protected activity by Plaintiff. 2 17 D. Conclusion Z 18 Based on the foregoing, the Court concludes that Securitas has met its burden on summary 19 || judgment to establish that no reasonable jury could find for Torres on his § 1102.5 claim, and that 20 || Torres has not met his burden on summary judgment to demonstrate the existence of disputed 21 facts that would preclude summary judgment. 22 || IV. ORDER 23 For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s motion for 24 summary judgment is GRANTED. 25 26 || Dated: April 17, 2023 ETH LABSON FREEMAN 28 United States District Judge