Opinion
E050911 Super.Ct.No. CIVVS803171 Super.Ct.No. CIVVS803173 Super.Ct.No. CIVVS803175
11-08-2011
TODD A. SUTLIFF, Plaintiff and Appellant, v. VON'S STORE, INC., Defendant and Respondent. PHILIP DANIEL ROGERS, Plaintiff and Appellant, v. VON'S STORE, INC., Defendant and Respondent. GERTIE G. HEMPEL, Plaintiff and Appellant, v. VON'S STORE, INC., Defendant and Respondent.
Law Offices of Gloria Dredd Haney and Gloria Dredd Haney for Plaintiffs and Appellants. Wilson Turner Kosmo, Claudette G. Wilson, Michael S. Kalt and Dessi P. Nintcheva for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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OPINION
APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Affirmed.
Law Offices of Gloria Dredd Haney and Gloria Dredd Haney for Plaintiffs and Appellants.
Wilson Turner Kosmo, Claudette G. Wilson, Michael S. Kalt and Dessi P. Nintcheva for Defendant and Respondent.
This is an appeal from a summary judgment entered against plaintiffs and appellants Todd A. Sutliff, Philip Daniel Rogers, and Gertie G. Hempel (plaintiffs), on their respective complaints for damages and equitable relief filed against defendant and respondent, The Vons Companies, Inc. (Vons). Plaintiffs had all been employed in varying capacities by Vons at a store in Victorville. Vons terminated plaintiffs' employment after determining they each routinely had taken paid rest breaks of up to 40 minutes rather than the 10-minute break authorized under Vons's policies and the union collective bargaining agreement. Plaintiffs separately sued Vons for wrongful employment termination on the theory, among others discussed below, that Vons had discriminated against plaintiffs based on their respective ages. Vons moved for summary judgment on each theory of liability alleged in plaintiffs' respective complaints. In its motion Vons presented evidence to show that each plaintiff had routinely taken paid morning breaks of up to 40 minutes, that Vons viewed that conduct as a misuse of company time, and that a misuse of company time constitutes dishonesty that subjects an employee to immediate termination. The trial court found that plaintiffs failed to create a triable issue of material fact on any of the pertinent theories of liability. Therefore, the trial court granted summary judgment in favor of Vons and against each plaintiff.
Plaintiffs purport in this appeal to challenge every aspect of the trial court's ruling. We conclude, based on our independent review of the parties' summary judgment filings, that Vons is entitled to judgment in its favor and against each plaintiff because plaintiffs' filings do not create a triable issue of material fact on any theory of liability alleged in their respective complaints. Therefore, we will affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed separate civil actions against Vons (incorrectly sued as Von's Stores Inc., a Safeway Company) and various individual employees (none of whom are parties to this appeal), by filing their respective unverified complaints for damages and injunctive relief in San Bernardino County Superior Court on June 9, 2008. Plaintiffs alleged in pertinent part that they each were long-term employees of Vons (Hempel worked for Vons for 30 years, Sutliff for 27 years, and Rogers for over 25 years), employed at the Victorville store, and they each were 40 years of age or older (Hempel alleged she was 49, Sutliff alleged he was 50, and Rogers alleged he was 51). In her complaint, Hempel alleged that Vons employee David Ramirez, the alleged head of the grocery department at the Victorville store, discriminated against her and regularly harassed her because she was the only female in the produce department; that she made complaints to Vons management about Ramirez; in retaliation for those complaints Vons accused Hempel of "stealing company time" by taking breaks longer than those authorized by Vons; and Vons ultimately terminated Hempel's employment on May 31, 2007. Hempel alleged that Vons terminated her employment based on her age, and because she had complained about being sexually harassed, and because she was a highly paid, long-term employee.
In his complaint, Sutliff alleged in pertinent part that he was a department head, that Hempel was the only female in his department, and that he made complaints to Vons management about Ramirez's harassment of Hempel. Sutliff also alleged that as a department head, he held regular meetings with his employees to discuss Vons's policies and procedures and the meetings customarily took place during employee breaks. Sutliff alleged that Vons accused him of stealing and misappropriating company time (presumably by taking breaks longer than those authorized by Vons), and on May 31, 2007, Vons terminated his employment. Sutliff further alleged Vons terminated his employment because of his age (50), because he was a highly paid, long-term employee, and because he had complained to management about the sexual harassment of Hempel.
Rogers alleged that Vons terminated his employment on May 31, 2007, after falsely accusing him of stealing company time, and that in doing so Vons failed to follow its own policies and procedures because Vons had not given Rogers any warning or notice, and in any event, Vons's action violated state law because Rogers was a member of a group of older employees and he was close to retirement at the time Vons terminated his employment. Rogers alleged also that Vons terminated his employment because of his age, and in retaliation for engaging in the protected activity of complaining about discrimination against older workers.
All three plaintiffs purported to state theories of recovery based on age discrimination in violation of the Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA); retaliation in violation of the FEHA; intentional infliction of emotional distress; wrongful termination of employment; defamation; negligence; and breach of contract. In addition, Hempel's complaint included an eighth purported theory of recovery based on alleged sexual harassment in violation of the FEHA. After Vons filed its answer in the form of a general denial to each unverified complaint, it removed the actions to federal court. The parties stipulated to remand all three actions to state court after plaintiffs dismissed their causes of action for intentional infliction of emotional distress, defamation, negligence, and breach of contract.
Following remand, Vons filed motions for summary judgment on the four remaining theories of recovery alleged in plaintiffs' complaints, namely the FEHA violations based on alleged age discrimination, retaliation, and sexual harassment, and the wrongful employment termination claim based on violation of public policy. Vons asserted with respect to each plaintiff and their respective complaints that there were no triable issues of material fact because Vons terminated the employment of all three plaintiffs due to their misuse of company time that resulted when they regularly and intentionally took paid breaks that lasted significantly longer than the 10 minutes authorized by Vons. More particularly, Vons asserted in its separate statement of undisputed material facts that in May 2007 plaintiff Sutliff worked as the produce manager of the Vons store in Victorville; plaintiff Hempel was employed as a produce clerk at that store, and worked an eight-hour shift starting at either 3:00 a.m. or 4:00 a.m. and ending at noon or 1:00 p.m.; plaintiff Rogers worked as the dairy/deli department manager at the same Vons store. Vons's employment policy provides employees who work an eight-hour shift with two paid 10-minute breaks and one unpaid lunch break. In early 2007, David Ramirez, the grocery manager of the Victorville Vons store, became concerned that plaintiffs and a person identified only as J.R., also a produce clerk, were taking excessively long paid breaks. Ramirez reported his concerns to the store manager and then later also reported them to the human resources department, which referred the matter to loss prevention. Loss prevention directed Ramirez to track and log the length of the breaks taken by plaintiffs and J.R.
In the interim, the parties stipulated to consolidate the three lawsuits and designated Sutliff's action, San Bernardino Superior Court case No. CIVVS803171, as the "lead case."
In April 2007, Agent Grant Gamel, a Vons loss prevention agent, reviewed the information Ramirez and selected other employees had compiled regarding the length of plaintiffs' breaks. Gamel also viewed videotapes from closed circuit surveillance cameras that depicted employees, including plaintiffs, taking breaks in the Starbucks area of the Victorville Vons store. Gamel determined based on the noted information that additional investigation of plaintiffs and J.R. was warranted. To that end on April 19, 2007, Gamel interviewed plaintiffs and J.R. J.R. admitted both orally and in a written statement that for an extended period of time he had been taking excessively long paid breaks. Plaintiff Rogers also admitted that he had been taking long breaks, but he declined to make a written statement.
Sutliff acknowledged in a written statement that he had taken extended rest breaks but claimed the breaks were tolerated by management or were work-related meetings. Hempel orally admitted that she took extended paid breaks but claimed they were work related. Agent Gamel also interviewed R.S., a Vons produce clerk, who was identified based on the surveillance videotapes as another employee who was taking excessively long paid breaks. R.S. acknowledged that he had taken a few breaks that were slightly longer than 10 minutes, but he stopped taking long breaks because he thought it would be a problem. Agent Gamel suspended all five employees pending further review.
In May 2007, Vons Labor Relations Manager Barbara McDonald met with the suspended employees and their union representatives. Vons maintains a progressive discipline policy for violation of some operational procedures, but certain other violations are subject to more severe discipline up to and including immediate termination of employment. Vons considers misuse of company time a form of misappropriation, theft, fraud, or dishonesty, and such violations are not subject to progressive discipline but rather are subject to more severe discipline up to and including termination of employment. Plaintiffs and J.R. admitted to sitting in the Starbucks area of the Victorville Vons store for up to 40 minutes each day. While J.R. acknowledged that his conduct amounted to an extended paid break, plaintiffs each claimed they were taking their paid 10-minute break followed by a daily work-related department meeting of 30 minutes. Plaintiffs said they were discussing produce department inventory or customer service training.
In their opening brief, plaintiffs refer to these meetings as "huddles."
McDonald concluded, based on her interviews of plaintiffs and Agent Gamel's loss prevention investigation report, which included information regarding the logs David Ramirez had compiled and the videotape from the surveillance cameras, that plaintiffs had repeatedly violated Vons's break policy by taking paid rest breaks of more than 10 minutes. McDonald for various reasons did not believe plaintiffs' claim that they were holding daily department meetings. Among other things, McDonald noted that plaintiff Rogers, as a deli department employee, would not have any reason to meet daily with plaintiffs Hempel and Sutliff, both of whom are produce department employees. In addition, McDonald did not believe plaintiffs were discussing customer service because plaintiffs worked most of their hours when the store was closed and therefore would have little need to discuss customer service strategies. McDonald also noted that so-called "huddles" typically are called by store managers and last only a few minutes and that the manager of the Victorville store in fact conducted such employee huddles on a daily basis.
On May 30, 2007, McDonald recommended to Vons District Manager Dan Gould that the employment of plaintiffs and J.R. be terminated for intentionally and repeatedly violating Vons's break policies and thereby misusing company time. McDonald recommended that R.S. be allowed to return to work, following a suspension without pay. Gould followed McDonald's recommendations. On June 1, 2007, Vons notified plaintiffs and J.R. that their employment had been terminated for misuse of company time.
In their respective opposition to Vons's motions for summary judgment, plaintiffs purported to dispute nearly every material fact asserted by Vons. We discuss the details of plaintiffs showing, below, in our discussion of the issues raised on appeal. Vons filed its reply to plaintiffs' opposition. Following a hearing on January 8, 2010, the trial court granted Vons's summary judgment motions with respect to all three plaintiffs. The trial court entered judgment in favor of Vons and against each plaintiff on March 23, 2010. Plaintiffs appeal from those judgments.
DISCUSSION
1.
STANDARD OF REVIEW
On appeal, we independently review the order granting summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).)The trial court must grant a summary judgment motion when the evidence shows there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) In making this determination, the court must view the evidence, including all reasonable inferences supported by that evidence, in the light most favorable to the nonmoving party. (Aguilar, at p. 843.) A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff's cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at pp. 850-851, 854-855.) The burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or the defense. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at pp. 850-851.) Despite the shifting burdens of production, the defendant, as the moving party, always bears the ultimate burden of persuasion as to whether summary judgment is warranted. (Aguilar, at p. 850.)
In reviewing an order granting summary judgment, we "apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving party's showing has established facts which justify a judgment in movant's favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.) If there is no triable issue of material fact, "we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court or first addressed on appeal." (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1071.) In reviewing whether these burdens have been met, we strictly scrutinize the moving party's papers and construe all facts and resolve all doubts in favor of the party opposing the motion. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
In the specific context of employment discrimination claims, such as those at issue in this appeal, a defendant moving for summary judgment has the burden of producing evidence which shows that its actions were taken for a nondiscriminatory reason which is factually unrelated to prohibited bias. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 354-358, discussing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) If the defendant meets this burden, the burden shifts to the plaintiff to produce substantial evidence which rationally supports the inference that the employer's actions were motivated by prohibited bias. (Guz v. Bechtel National, Inc., supra, at p. 357.)
With the foregoing legal principles in mind, we assess the summary judgment motions at issue in this appeal.
2.
ANALYSIS
The trial court granted summary judgment in favor of Vons on plaintiffs' first, second, and fourth causes of action, and plaintiff Hempel's eighth cause of action. Plaintiffs' first and second causes of action and Hempel's eighth cause of action purport to allege violations of the FEHA based first on age discrimination, next on retaliation, and finally on sexual harassment of Hempel. In their fourth cause of action plaintiffs purport to state a theory of recovery based on employment termination in violation of public policy.
A.
First Cause of Action—Employment Discrimination Based on Age
Both federal and state law prohibit employers from discriminating against employees on the basis of age. (Gov. Code, § 12940, subd. (a); 42 U.S.C. § 2000e et seq.; 29 U.S.C. § 621 et seq.) Although state and federal antidiscrimination laws "differ in some particulars, their objectives are identical, and California courts have relied upon federal law to interpret analogous provisions of the state statute. [Citations.]" (Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1316-1317.)
(1.)
Issues Framed by the Pleadings
In their first causes of action plaintiffs alleged that Vons terminated their respective employments because they each were over the age of 40, and consequently Vons violated Government Code section 12940, subdivision (a), which makes it unlawful for an employer, among other things, to discharge an employee because of the employee's age.
Plaintiffs incorrectly allege in their complaints that the pertinent statute is Government Code section 12941. The statute was amended in 2002 and as a result the age discrimination provision is set out in Government Code section 12940, subdivision (a).
Government Code section 12926, subdivision (b) (incorrectly identified in plaintiffs' complaints as subdivision (d)) defines "age" as "the chronological age of any individual who has reached his or her 40th birthday."
(2.)
Vons's Showing
Vons presented evidence in support of its summary judgment motion to show that it terminated plaintiffs' employment because they each regularly took paid breaks of up to 40 minutes rather than the 10-minute breaks authorized under Vons's policy. The pertinent evidence included the investigation reports prepared by Loss Prevention Agent Gamel, the deposition testimony of Barbara McDonald, and the declaration of Barbara McDonald submitted in support of Vons's summary judgment motion. Vons's showing that plaintiffs violated its policies is sufficient to establish a legitimate nondiscriminatory reason for its termination of plaintiffs' employment. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356 (Guz).)
In other words, Vons's evidence establishes a defense to plaintiffs' age discrimination cause of action and entitled it to judgment in its favor unless plaintiffs presented competent, admissible evidence that creates a triable issue of material fact.
(3.)
Plaintiffs' Opposition
Because Vons established a legitimate, nondiscriminatory reason for terminating plaintiffs' employment, the burden shifted to plaintiffs "to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred." (Guz, supra, 24 Cal.4th at p. 356, emphasis omitted.) That evidence commonly involves showing that the employer's claimed reason for terminating the employee's employment was a pretext offered to cover an otherwise unlawful reason. "[A] plaintiff's showing of pretext, combined with sufficient prima facie evidence of an act motivated by discrimination, may permit a finding of discriminatory intent, and may thus preclude judgment as a matter of law for the employer. [Citation.]" (Guz, supra, 24 Cal.4th at p. 361, emphasis added.)
In their opposition, plaintiffs purported to present evidence to show (1) a prima facie case of age discrimination; and (2) pretext. We first address plaintiffs' age discrimination evidence.
a.
Prima Facie Case Showing
"The specific elements of a prima facie case may vary depending on the particular facts. [Citations.] Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action . . . , and (4) some other circumstance suggests discriminatory motive. [Citations.]" (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355, fn. omitted, citing Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253, fn. 6.)
The "other circumstance" requirement can be met with evidence that the employee was replaced by a similarly situated nonmember of the protected class, or that otherwise similarly situated nonmembers of the protected class did not suffer the same adverse employment action. (Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1318.) But these are just examples of evidence that will meet the "other circumstance" requirement; they are not themselves required elements of the prima facie case. (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1756, fn. 8; see also Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 663.) The plaintiff's showing must support an inference that the employee was discharged for a discriminatory purpose. (Mixon v. Fair Employment & Housing Com., supra, at p. 1318.)
In their respective opposition filings, plaintiffs purported to set out the elements of a prima facie showing of age discrimination but they did not include the "other circumstance" requirement as an element. Consequently, they did not address that element in their showing in opposition to Vons's summary judgment motion. The only evidence plaintiffs submitted that arguably supports an inference of discriminatory purpose and therefore is relevant to the "other circumstance" element of their age discrimination claim is set out in the declaration of plaintiff Rogers submitted in opposition to Vons's summary judgment motion. In that declaration, Rogers stated, first, that he was replaced by L.B., a person whom Rogers asserted also participated in the so-called huddles and meetings, but whom Rogers claimed was not punished and is younger than Rogers. Second, Rogers said that R.S., who was "much younger" than plaintiffs, was only suspended but not fired for violating Vons's 10-minute paid break policy.
Plaintiffs focused on showing that Vons purportedly gave multiple reasons for terminating their employment, all as a pretext to cover its real reason which was age discrimination. As noted above and discussed later, unless plaintiffs establish a prima facie case of age discrimination, the pretext issue is irrelevant.
Contrary to Rogers's statements, Vons's evidence in support of its summary judgment motions shows that L.B. was 48 years old at the time in question, and R.S. was 50 years old, which are insignificant differences in age from plaintiffs who were 48, 50 and 51 years old, respectively, at the time Vons terminated their employment. The three-year age difference between Rogers and L.B. does not support an inference that Vons terminated Rogers's employment based on his age. Moreover, Rogers's statement that L.B. also attended the meetings/huddles is too vague to support an inference that L.B. like Rogers took 40-minute paid breaks and thus was "similarly situated." Rogers's statement could refer to the daily huddles/meetings called by store manager Ron Davis and that lasted at most five minutes.
Plaintiffs' evidence fails to establish the requisite "other circumstance" element of an age discrimination claim with respect to Rogers, least of all Hempel or Sutliff. Vons presented evidence in its motion for summary judgment to show in addition to plaintiffs, it terminated the employment of J.R., who was 35 years old; it did not terminate the employment of R.S. who was 50 years old, and the investigation exonerated another employee who was 58 years old. In addition, Vons's evidence showed that it replaced plaintiff Sutliff with an employee who was 52 years old, plaintiff Hempel's replacement was 49 years old, and as previously noted, Rogers's replacement was 48 years old. Plaintiffs did not counter this showing with any evidence that supported an inference of age discrimination and thus established the "other circumstance" element of their age discrimination claim. Because their evidence does not establish a prima facie case of age discrimination, plaintiffs have not demonstrated a basis for judgment in their favor on their first causes of action. Consequently, plaintiffs' claims that Vons's reason for terminating their employment was a pretext is irrelevant and we will not address that issue.
B.
Second Cause of Action—Employment Discrimination Based on Retaliation
"[T]o 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. [Citations.]" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)"Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation '"'drops out of the picture,'"' and the burden shifts back to the employee to prove intentional retaliation. [Citation.]" (Id. at p. 1042.)
(1.)
Issues Framed by the Pleadings
In their respective second causes of action plaintiffs Sutliff and Hempel alleged that Vons terminated their employment in retaliation for their complaining about sexual harassment, and in doing so Vons violated Government Code section 12940, subdivision (h), which makes it unlawful for an employer "to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." Plaintiff Rogers, however, alleged that his employment was terminated in retaliation for his complaining about discrimination against older workers like himself.
Plaintiffs incorrectly allege the pertinent section is Government Code section 12940, subdivision (f), but the statute was amended in 2000 and as a result the correct subdivision is (h).
Plaintiffs filed FEHA complaints, but they did so after Vons terminated their employment. Therefore, their retaliation claims cannot be based on the complaint filing provision.
(2.)
Vons's Showing
Vons asserted in its summary judgment motion that it was undisputed that (a) it terminated plaintiffs' employment because they each routinely had violated Vons's policies by taking paid breaks of 40 minutes rather than 10 minutes authorized by Vons, (b) plaintiffs had not engaged in protected activity because they had not "opposed activity" proscribed by the FEHA, and (c) the Vons management level employees who made the recommendation and decision to terminate plaintiffs' employment were unaware of plaintiffs' purported protected activity and therefore no causal connection exists between that activity and Vons's adverse employment action.
We have already recounted the evidence Vons presented to show it had a legitimate, nonretaliatory reason for terminating plaintiffs' employment. Therefore, we will not recount that evidence or discuss that issue again. Because it is dispositive, we will address Vons's showing to support its claim that plaintiffs could not establish a prima facie case of retaliation because the undisputed evidence shows neither Barbara McDonald nor Dan Gould, the Vons management employees who made the recommendation and decision to terminate plaintiffs' employment, were aware of plaintiffs' protected activity, namely, their complaints regarding the purported sexual harassment of plaintiff Hempel.
The evidence Vons submitted in support of its summary judgment motion establishes that plaintiff Hempel complained to her supervisor, plaintiff Sutliff, that (1) David Ramirez did not unlock the door in a timely manner when Hempel arrived at work, with the result that sometimes she had to wait outside in the dark for as long as 15 minutes and that caused her to be late clocking in; and (2) unspecified members of the night crew made her job in the produce department more difficult to perform.Specifically, Hempel complained to Sutliff that on a regular basis "the night crew" unloaded deliveries and would put bananas in the cooler but leave the bagged salad out; stacked cardboard boxes in the prep room instead of breaking them down for the bailer; and placed pallets in the freezer in a configuration that made it harder for Hempel to move them. Sutliff relayed Hempel's complaint to the store manager, Ron Davis, and also to David Ramirez, the grocery manager and night crew supervisor. Hempel did not complain to anyone other than Sutliff; and Sutliff did not discuss Hempel's complaints with anyone else at Vons. Assuming without actually deciding that the evidence establishes a hostile work environment, an issue we address below, neither McDonald nor Gould knew that Hempel had complained to Sutliff, or that Sutliff had shared her complaints with Davis.
Hempel also said that Ramirez glared at her when she was working like he was trying to intimidate her, like he was "undressing" her, and she felt uncomfortable and uneasy. It is unclear from the evidence whether Hempel told Sutliff about Ramirez purportedly glaring at her. However, there is no evidence, if Sutliff knew, that he told anyone about this aspect of Hempel's harassment claim.
With respect to plaintiff Rogers, Vons submitted his deposition testimony to show that Hempel had never complained to him about David Ramirez or the night crew; Rogers knew about tension between the night crew and the produce department in general because David Ramirez told him about it. Plaintiff Rogers never told anyone at Vons that he thought David Ramirez was acting improperly toward Hempel.
Vons's showing negates the causation element of plaintiffs Hempel's and Sutliff's second causes of action both of which allege Vons retaliated against them for engaging in the protected activity of complaining about the sexual harassment of Hempel. The evidence shows that neither McDonald nor Gould knew at the time they terminated plaintiffs' employment from Vons that any of the plaintiffs purported to have engaged in protected activity. In order to create a triable issue of material fact, plaintiffs had the burden of presenting evidence to show otherwise, i.e., that McDonald or Gould knew at the time they decided to terminate plaintiffs' employment that plaintiffs had engaged in protected activity.
Vons's showing does not address plaintiff Rogers's allegation that Vons fired him in retaliation for engaging in the protected activity of "complaining about the discrimination against older workers like himself."
(3.)
Plaintiffs' Opposition
In their opposition, plaintiffs purported to dispute Vons's assertion that McDonald and Gould were unaware of any complaints by plaintiff Hempel or Sutliff concerning perceived work-related sexual harassment of Hempel. Plaintiffs asserted in their respective opposition filings that, "Management had been in contact with Ramirez who informed them about plaintiffs' complaints and Ramirez's conflict with the Produce Dept. Davis claims he does not know if he talked to McDonald before Rogers'[s] and Hempel's termination. Ramirez had communicated with management before plaintiffs' suspensions and termination. McDonald noted in her own handwriting that Ramirez discussed with Gould the complaints regarding Hempel before the terminations."
Plaintiffs' reference to communications with "management" does not specifically show that McDonald or Gould were aware of Hempel's complaints. Their reference to Gould and McDonald, the actual decision makers, is vague and at best suggests that Ramirez shared his complaints about Hempel with someone in management. The pertinent complaints for purposes of plaintiffs' retaliation claim, however, are Hempel's complaints about Ramirez purportedly harassing her because she is female. Moreover, plaintiffs cite evidence that does not specifically support their assertions, and, more importantly, none of the cited evidence is actually included in plaintiffs' filings. Specifically, each plaintiff cites page 34 of Exhibit E, the deposition of Ron Davis, but page 34 is not included in the exhibit. Nor is page 34 included in the pages of Davis's deposition that Vons submitted in support of their summary judgment motion. Likewise, pages 135 and 136 of Exhibit D, McDonald's deposition, which plaintiffs each cite as support for their claim, are not included in that exhibit, the portions of McDonald's deposition that plaintiffs did include in Exhibit D do not mention her purported notes, and the missing pages are not contained in the portions of McDonald's deposition that Vons submitted to support its summary judgment motion.
In short, plaintiffs failed to present any evidence in the trial court to rebut Vons's showing that McDonald and Gould, the Vons management level employees who made the recommendation and decision to terminate plaintiffs' employment, were unaware that any of the plaintiffs had purportedly engaged in protected activity. Although Vons did not address plaintiff Rogers's assertion that Vons fired him in retaliation for his having engaged in the protected activity of complaining about age discrimination, Rogers does not assert in his opposition that he had engaged in that protected activity. Absent such evidence, Rogers has not established a prima facie case of retaliation. Therefore, Vons is entitled to judgment as a matter of law on plaintiffs' respective second causes of action.
In their appeal, plaintiffs do not claim they created a triable issue of material fact on the element of causation in their second theory of recovery. Instead they raise an argument they did not rely on in the trial court, that the so-called "cat's paw" principle applies in this case. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 114, fn. 14, which explains that "cat's paw" comes from an Aesop fable.) Under the cat's paw principle the discriminatory animus of a supervisory employee may be imputed to the ultimate decision maker and thus to the employer if the decision maker is merely the tool by which the supervisor carries out his or her discriminatory purpose. (See Id. at pp. 113-114.) As we will explain, this is not such a case, plaintiffs' contrary claim notwithstanding.
The cat's paw principle applies when the decision maker is the mere rubber stamp or unwitting conduit through which the supervisor carries out his or her discriminatory purpose. (See Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at pp. 113-115, and cases cited therein.) Plaintiffs contend David Ramirez acted with discriminatory purpose when he reported plaintiffs for taking paid breaks that were longer than 10 minutes. We do not share plaintiffs' view that the evidence shows David Ramirez harbored a discriminatory animus against any of the plaintiffs. However, if we were to assume for the sake of discussion that the evidence establishes such intent, we nevertheless would reject plaintiffs' cat's paw argument because there is no evidence that McDonald or Gould acted as tools of Ramirez or merely rubber stamped his decision to discriminate against plaintiffs.
The evidence in this case is undisputed that Ramirez reported plaintiffs were abusing the paid break policy, and at the request of loss prevention he kept a log to document the length of plaintiffs' breaks. The evidence is also undisputed that Loss Prevention Agent Gamel independently corroborated Ramirez's observations by comparing Ramirez's log with the closed circuit surveillance videotapes. Gamel then interviewed each person he identified from the videotapes as having taken paid breaks longer than 10 minutes. Gamel submitted his report to Barbara McDonald who then interviewed plaintiffs again. Following those interviews, McDonald recommended to Dan Gould that plaintiffs be terminated from employment. Gould followed that recommendation. There simply is no evidence to show that Ramirez manipulated the process or the decision makers to do his bidding. Therefore, the evidence does not support application of the cat's paw principle in this case.
Plaintiffs purport to challenge the accuracy of Ramirez's logs, and thereby impugn his motives, by showing that in several instances the time imprinted on the videotapes does not correspond with the time Ramirez noted in his log entries. For example, plaintiffs point out that in his entry for March 22, 2007, Ramirez's log says Hempel took a break from 5:55 a.m. to 6:35 a.m., but the pertinent videotape shows "there was no one sitting at the Starbucks tables [where plaintiffs would take their breaks] during that time." To support this claim, and the suggestion that plaintiff Hempel was not in the Starbucks from 5:55 a.m. to 6:35 a.m., plaintiffs cite still frame images taken from the surveillance videotape of the Starbucks at 5:57 a.m. and 6:00 a.m. on March 22, 2007. Plaintiffs' evidence does not show that Hempel was not in the Starbucks, and therefore not on break at the time Ramirez noted in his log. Their evidence shows only that Ramirez's time source was not synchronized with the time clock on the video surveillance camera. If plaintiff Hempel was not in the Starbucks at all, or was only there for the allowed 10 minutes, plaintiffs would have submitted either the videotape itself or still frame images covering the entire time at issue. The absence of such evidence speaks volumes, as they say, about the validity of plaintiffs' assertion. To be blunt, it is specious.
In summary, we conclude for each of the reasons discussed that plaintiffs' showing in opposition to Vons's summary judgment motion fails to create a triable issue of material fact with respect to their respective second causes of action alleging employment discrimination based on retaliation for engaging in protected activity.
C.
Eighth Cause of Action—Hempel's Sexual Harassment Claim
The form of sexual harassment at issue in this appeal has been dubbed "environmental" or "hostile work environment" harassment to distinguish it from "quid pro quo" sexual harassment in which submission to sexual advances is demanded in exchange for favorable consideration in regard to either the fact or the circumstances of continued employment. (See Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516-517.) The elements of a hostile work environment claim are ". . . (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior." (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608, fn. omitted.) Sexual harassment based on a hostile work environment "need not have anything to do with sexual advances. [Citations.] It shows itself in the form of intimidation and hostility for the purpose of interfering with an individual's work performance." (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348.)
(1.)
Issues Framed by the Pleadings
Plaintiff Hempel alleged in her eighth claim for relief that she was not treated fairly, like other similarly situated Vons employees, and as a result Vons violated Government Code section 12940, subdivision (j), which makes it an unlawful employment practice to harass an employee among other things because of the employee's sex.
(2.)
Vons's Showing
In its summary judgment motion, Vons asserted Hempel's cause of action for sexual harassment lacked merit because she was not subjected to a hostile work environment based on her sex and any workplace conflict that did occur was not because of Hempel's sex. In its separate statement of undisputed material facts, Vons asserted it was undisputed that plaintiff Hempel's sexual harassment claim was based on the acts of unspecified night crew employees. Vons submitted portions of Hempel's deposition testimony as evidence to support this assertion. In that testimony Hempel complained that "the night crew" put bananas in the cooler instead of leaving them out, and left bagged salad out when it should have been put in the cooler; produce department pallets were placed in the cooler in a "cockeyed" manner; and cardboard boxes were not broken down when they should have been. Vons asserted that the noted acts did not constitute sexual harassment, and in any event plaintiff Hempel could not identify any particular employee responsible for the acts.
Vons also asserted in its separate statement of undisputed material facts that Hempel could only connect two acts of purported harassment to a specific Vons employee, namely David Ramirez, the grocery manager. Those acts were that Ramirez (1) failed immediately to unlock and open the door to let Hempel in the store when she arrived 15 to 20 minutes late for work, and (2) he stared at her in an intimidating manner when he walked the sales floor. Vons asserted it was undisputed that the only times Ramirez left Hempel waiting at the door to be let in were when he was not standing at the front door on the many occasions when she arrived 15 to 20 minutes late for work. In that circumstance, Ramirez would have to be paged and it would take him time to get to the door. Conversely, when Ramirez was at the door when Hempel arrived, he would immediately unlock the door and let Hempel in the store.
Vons's policy was that when the store was closed only the "person in charge" could unlock the door to allow employees to enter for work.
Vons submitted portions of Hempel's deposition testimony to support its assertion that the reason she had to wait to be let in the store was because she had arrived late for work, not because she was female. In that testimony Hempel acknowledged that she would arrive 15 to 20 minutes late for work "maybe three times out of the week," because "it was just a habit. I was just late." She further acknowledged that when David Ramirez was up front "right there" at the door when she arrived at work, he would let her in. He only made her wait when he was not right up front or was in one of the aisles and "they" would page him, and then he would "take his time."
Hempel's exact response when she was asked during her deposition whether there were occasions when she had arrived late for work was, "Oh, of course, you could count on it. I'm late."
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With respect to Hempel's assertion that David Ramirez stared at her, Vons asserted it was undisputed that Ramirez checked up on Hempel to make sure she was doing her work. According to Vons it was undisputed that when Ramirez would walk the sales floor and stop to watch Hempel, she would feel intimidated. Hempel stated in her deposition testimony that Ramirez would just stare at her like he was mad at her, like he was trying to intimidate her; like a "peeping Tom" spying to make sure she was doing her work. Hempel admitted that Ramirez was not looking at her in a sexual manner.
(3.)
Plaintiff Hempel's Opposition
In her opposition to Vons's summary judgment motion, Hempel purported to dispute Vons's factual assertions; she cited excerpts from her own deposition and that of Sutliff to support her claims. Specifically, Hempel submitted her own deposition testimony in which she said she complained to Sutliff, her supervisor, about "any perceived harassment" by David Ramirez, "[e]very time, um, I came in and they did - the load wasn't [sic], you know, all messed up, I would always go to [Sutliff.] And if he [presumably referring to Ramirez], like - if he was, like, glaring at me that day, just making me uncomfortable, undressing me because I was - because he did that to me, I would tell [Sutliff]." When asked to clarify whether she was now suggesting that Ramirez looked at her in a sexual manner, Hempel stated, "He didn't do that to Ramone or Georgie [presumably other produce department employees]. As a female, I felt like he was undressing me . . . in a sexual manner." When asked, "Oh, he was undressing you in a sexual manner," Hempel again said, "Because he didn't do that to - to - to Ramone or to - to Georgie when they would work."
Hempel also cited Sutliff's deposition testimony that he based his claim that David Ramirez was singling Hempel out based on her sex, "Because it didn't happen until she became the trimmer. When Kevin was there, it didn't happen, because she was the only female in my department." Hempel did not include in her supporting evidence the page of Sutliff's deposition that contains the noted quote.
Moreover, in the portions of Sutliff's deposition Hempel actually included in her opposition, Sutliff also stated that "there seemed to be some ongoing problem between Dave and Gertie. It was never specific. I never found out why or what the problem was. Nobody ever talked to me about it." Sutliff also said, when asked why David Ramirez might want to harass plaintiff Hempel, that it was "because he wanted me to schedule her earlier - that's the only, really, reason I could conclude. It was vindictive in my opinion. It was vindictive. He did it because he didn't like that he didn't have control over that situation, what time that she came in."
Hempel's evidence does not show that she was harassed because of her sex. The evidence shows that on occasion David Ramirez left Hempel standing outside at the door when she did not get to work on time in the morning, and that he did not like that the produce department did not have an employee at the store early enough to unload the truck when it came in. As Sutliff described it in his deposition, "From time to time, when [Ramirez] . . . would have his guys unload the truck if we weren't there yet, he would stick the load into the cooler very difficultly to - we'd have to completely rearrange it . . . ." The undisputed evidence shows that if Hempel was being harassed it was because of her work performance, and not because of her sex. In short, Hempel simply failed to create a triable issue of material fact on her hostile work environment claim.
D.
Plaintiffs' Fourth Cause of Action—Wrongful Termination in Violation of Public
Policy
In Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, the California Supreme Court "noted four categories of employee conduct subject to protection under a claim of wrongful discharge in violation of fundamental public policy: refusing to violate a statute [citations]; (2) performing a statutory obligation [citation]; (3) exercising a statutory right or privilege [citation]; and (4) reporting an alleged violation of a statute of public importance [citations].'" (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889.)
(1.)
Issues Framed by the Pleadings
In their fourth causes of action, plaintiffs each alleged that Vons terminated their employment in violation of the FEHA, and in violation of the purported public policy that requires Vons to treat fairly all similarly situated employees.
(2.)
Vons's Showing
Vons showed in its summary judgment motion that it terminated plaintiffs' employment because each plaintiff violated Vons's 10-minute paid break policy. Vons's showing established a legitimate, nondiscriminatory reason for terminating plaintiffs' employment.
(3.)
Plaintiffs' Opposition
As set out above in our discussion of plaintiffs' FEHA causes of action, plaintiffs' showing in opposition to Vons's summary judgment motion did not create a triable issue of material fact with regard to their FEHA claims. Because plaintiffs failed to show that Vons terminated their employment due to their age, or in retaliation for engaging in protected activity, or because of their sex, plaintiffs have also failed to show that Vons terminated their employment in violation of public policy. Therefore, plaintiffs have failed to create a triable issue of material fact with respect to their wrongful termination causes of action. Plaintiffs do not claim otherwise in this appeal.
E.
Punitive Damage Allegation
Because we conclude plaintiffs failed to create a triable issue of material fact on their tort causes of action for wrongful termination of employment, we will not address their punitive damage claim. Plaintiffs cannot recover any damages, compensatory or punitive, in the absence of a theory of recovery that supports the damage award.
Because Vons showed it was entitled to judgment in its favor on each of the causes of action remaining in plaintiffs' respective complaints, summary judgment was properly entered in Vons's favor and against each plaintiff.
DISPOSITION
The judgment is affirmed. Vons to recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster J. We concur:
Ramirez P.J.
Richli J.