Summary
In Luchetti v. Hershey Co., 412 Fed. Appx. 978, 979 (9th Cir. 2011), the court found that the plaintiff's communications with his supervisor were not complaints as defined in § 6310 because his discussions regarding safety did not demonstrate opposition to his employer's safety measures or allege any illegal activity.
Summary of this case from Parker v. Ethosenergy Power Plant Servs., LLCOpinion
No. 09-17193.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed January 27, 2011.
Daniel Kobert Bartley, Esquire, Bartley Law Offices, Novato, CA, for Plaintiff-Appellant.
Lisa C. Hamasaki, Michele Ballard Miller, Miller Law Group, San Francisco, CA, for Defendant-Appellee.
Appeal from the United States District Court for the Northern District of California, Susan Illston, District Judge, Presiding. D.C. No. 3:08-cv-01629-SI.
Before: WALLACE, NOONAN, and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Luchetti appeals from the district court's summary judgment in favor of The Hershey Company (Hershey). The district court had jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) and we have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.
Both California Labor Code § 1102.5 (West 2010) and § 6310 (West 2003) require that Luchetti prove he expressed his opposition to Hershey's safety practices or lack thereof. Daly v. Exxon Corp., 55 Cal.App.4th 39, 63 Cal.Rptr.2d 727, 729 (Cal.Ct.App. 1997); Taylor v. Lockheed Martin Corp., 78 Cal.App.4th 472, 92 Cal. Rptr.2d 873, 881-82 (Cal.Ct.App. 2000); Yanowitz v. L'Oreal USA Inc., 36 Cal.4th 1028, 32 Cal.Rptr.3d 436, 116 P.3d 1123, 1133 (2005). Luchetti argues that his oral complaints to Soles, his supervisor, together with his email with a copy to Soles, create a triable issue of fact as to whether Luchetti was expressing opposition to participation in the status quo, which included ongoing violations of Cal-OSHA The district court disagreed and so do we. Neither Luchetti's email, nor his conversation with Soles, is evidence of any opposition to Hershey's safety practices. The evidence shows only that Luchetti discussed how to best address safety practices at the plant with his supervisors and co-worker. In addition, none of Luchetti's evidence shows that he complained about the legality of Hershey's practices or procedures. See Holmes v. General Dynamics Corp., 17 Cal.App.4th 1418, 22 Cal.Rptr.2d 172, 181 (Cal.Ct.App. 1993). Finally, Luchetti failed to rebut Hershey's evidence that his termination was for a legitimate reason that was not a pretext for retaliation.