Roadrunner Intermodal Services, LLC v. T.G.S. Transportation, Inc.

REPLY

E.D. Cal.March 26, 2019

Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ROADRUNNER INTERMODAL SERVICES, LLC, a Delaware limited liability company, Plaintiff, v. T.G.S. TRANSPORTATION, INC., a California corporation, and DOES 1-10, Defendants. CASE NO. 1:17-cv-01056-DAD-BAM (Consolidated with Case No. Case No. 1:17-cv- 01207-DAD-BAM) ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS JEFFREY COX, Plaintiff, v. ROADRUNNER INTERMODAL SERVICES, LLC, et al., Defendant(s). Date: April 2, 2019 Time: 9:30 a.m. Dept: Courtroom 5, 7th Floor ROADRUNNER INTERMODAL SERVICES, LLC, a Delaware limited liability company, Defendant and Counter- Plaintiff, v. JEFFREY COX, Plaintiff and Counter- Defendant. James M. Nelson – SBN 116442 Kurt A. Kappes – SBN 146384 Michael D. Lane – SBN 239517 Michelle L. DuCharme – SBN 285572 GREENBERG TRAURIG, LLP 1201 K Street, Suite 1100 Sacramento, CA 95814-3938 Telephone: (916) 442-1111 Facsimile: (916) 448-1709 nelsonj@gtlaw.com kappesk@gtlaw.com lanemd@gtlaw.com ducharmem@gtlaw.com Attorneys for ROADRUNNER INTERMODAL SERVICES, LLC and CENTRAL CAL TRANSPORTATION, LLC Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 1 of 16 ii Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION ...........................................................................................................................1 II. ARGUMENT ...................................................................................................................................1 A. COX’S “DISPUTED FACTS” ARE IMPROPER LEGAL CONCLUSIONS ...................1 B. COX’S FIRST AND SECOND CLAIMS OF RETALIATION IN VIOLATION OF LABOR CODE SECTION 1102.5 FAIL AS A MATTER OF LAW BECAUSE COX FAILED TO DISCLOSE A VIOLATION OF ANY FEDERAL OR STATE LAW, AND ROADRUNNER HAD LEGITIMATE, BUSINESS REASONS FOR HIS TRANSFER AND TERMINATION ...............................................2 1. The Undisputed Facts Show That Cox’s Email And Letter Communications Are Not Protected Activity Because They Fail To Disclose A Violation Of Any Federal Or State Statute, Rule, Or Regulation, And Cox Therefore Did Not Have A Reasonable Belief That Roadrunner Engaged In Illegal Conduct..................................................................2 2. Cox’s Transfer From Vice President Of Operations To Director Of Sales Is Not An Adverse Employment Action Because He Was Transferred To A Comparable Position And Roadrunner Had A Legitimate, Nonretaliatory Reason For Transferring Cox ..........................................................4 3. Cox’s Termination Was Not The Result Of Retaliation And His Opposition Points To No Material Facts Supporting That He Would Not Have Been Terminated But For His Alleged “Protected Activity” .........................6 C. COX’S THIRD CLAIM FOR TERMINATION IN VIOLATION OF PUBLIC POLICY FAILS AS A MATTER OF LAW BECAUSE THE UNDISPUTED FACTS ESTABLISH A LEGITIMATE, NONRETALIATORY BUSINESS DECISION FOR COX’S TERMINATION AND THERE IS NO EVIDENCE OF PRETEXT TO PRECLUDE SUMMARY JUDGMENT ....................................................6 D. COX’S FOURTH AND FIFTH CLAIMS FOR LIBEL AND SLANDER FAIL AS A MATTER OF LAW BECAUSE THE PUBLICATIONS ARE EITHER PRIVILEGED, DO NOT CONSTITUTE DEFAMATION, OR FALL OUTSIDE THE SCOPE OF ROADRUNNER’S AUTHORITY..........................................................7 E. COX’S SIXTH CLAIM FOR FAILURE TO PAY WAGES DUE AT TERMINATION FAILS AS A MATTER OF LAW BECAUSE COX WAS FULLY COMPENSATED FOR THE WORK HE PERFORMED ....................................8 F. COX’S SEVENTH CLAIM FOR INTENTIONAL INTERFERENCE WITH PROSPECTIVE BUSINESS ADVANTAGE FAILS AS A MATTER OF LAW BECAUSE THERE WAS NO ACTUAL DISRUPTION OF COX’S RELATIONSHIP WITH TGS OR HARM TO HIM ..........................................................8 Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 2 of 16 iii Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G. COX’S EIGHTH CLAIM FOR FAILURE TO PROVIDE AN ACCURATE ITEMIZED WAGE STATEMENT FAILS AS A MATTER OF LAW BECAUSE COX FAILED TO SHOW THAT ANY ERROR IN THE FINAL STATEMENT WAS INTENTIONAL .......................................................................................................10 III. CONCLUSION ..............................................................................................................................11 Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 3 of 16 iv Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) State Cases Buckaloo v. Johnson, 14 Cal. 3d 815 (1975) ............................................................................................................................9 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (2003) .........................................................................................................................9 McRae v. Dep’t of Corrections & Rehab., 142 Cal. App. 4th 377 (2006) ................................................................................................................7 Mize-Kurzman v. Marin Cmty. Coll. Dist., 202 Cal. App. 4th 832, 858 (2012) ........................................................................................................4 Mokler v. Cty. of Orange, 157 Cal. App. 4th 121 (2007) ................................................................................................................3 Patten v. Grant Joint Union High Sch. Dist., 134 Cal. App. 4th 1378, 1384–85 (2005) .............................................................................................2 Settimo Assocs. v. Environ Sys., Inc., 14 Cal. App. 4th 842 (1993) ..................................................................................................................9 Page(s) Federal Cases Abou-El-Seoud v. United States, 136 Fed. Cl. 537 (2018) ...................................................................................................................8, 10 Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337 (9th Cir. 1995) ...................................................................................................................5 Clark Cnty. School Dist. v. Breeden, 532 U.S. 268 (2001) ...............................................................................................................................5 F.T.C. v. Neovi, Inc., 604 F.3d 1150 (9th Cir. 2010) ...............................................................................................................5 Fitzgerald v. El Dorado Cty., 94 F. Supp. 3d 1155 (E.D. Cal. 2015)....................................................................................................4 Love v. Motion Indus., Inc., 309 F. Supp. 2d 1128 (N.D. Cal. 2004) .............................................................................................2, 4 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) ...............................................................................................................6 Wasco Prod., Inc. v. Southwall Techs., Inc., 435 F.3d 989 (9th Cir. 2006) .................................................................................................................3 Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 4 of 16 v Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Statutes Cal. Labor Code § 1102.5 ................................................................................................................2, 3, 4, 9 Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 5 of 16 1 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Plaintiff Jeffrey Cox’s (“Cox”) swirling closing statement-esque opposition is a distraction from the fact he cannot meet, much less overcome the reasons why undisputed facts—as opposed to arguments and legal conclusions made by counsel—entitle Defendant Roadrunner Intermodal Services, LLC (“Roadrunner”) to judgment as a matter of law. That is indeed the standard. Instead, Cox obscures the standard with his opposition. In that regard, reading newspaper accounts of Roadrunner’s own SEC filings and parroting them back does not make one a legitimate whistleblower. A change in the seller’s (Cox’s) employment status at the end of an earn-out period is also not retaliation. A demand letter Roadrunner sent in connection with enforcement of a non-compete agreement cannot be defamation except in the most unusual circumstances (that are not present here). Nor can an alleged oral statement by a Central Cal manager that he was going to personally loan money to Cox to fund Cox’s lawsuit against Roadrunner be either slander or something for which Roadrunner can be held accountable. Finally, an unintentional typo on a wage statement Cox spotted on the day he handed it to his lawyer noting, “here’s a problem they do not even know they have,” speaks volumes. It simply cannot be a viable claim any more than the earn-out payments under the Stock Purchase Agreement can be considered “wages” under the California Labor Code. Cox’s unwillingness to even focus on meeting the claims much less concede those that may once have looked plausible is consistent with his litigation strategy. What all of the employment claims have always been are: (a) leverage and insurance against the outcome of the separate earn-out dispute pending in another tribunal; and (b) another scorched-earth front to pressure Roadrunner into paying to avoid the cost of litigation. None of that relieves this Court from performing its gatekeeping obligations under Rule 56 of the Federal Rules of Civil Procedure. Summary Judgment remains appropriate. II. ARGUMENT A. Cox’s “Disputed Facts” Are Improper Legal Conclusions As noted in Roadrunner’s separately filed objections to Cox’s Separate Statement of Disputed Facts in Support of Opposition to Defendants’ Motion for Summary Judgment (ECF No. 181-5), Cox fails to present any actual evidentiary facts that are disputed. Instead, his “disputed facts” are simply counsel’s legal arguments and conclusions supported by their subjective interpretation of the evidence. Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 6 of 16 2 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cox’s “disputed facts,” such as “[w]hether Plaintiff engaged in protected activity” (#1) or “[w]hether Plaintiff reasonably believed [Roadrunner’s] conduct violated the law” (#2) are not actual facts. Each of his purported “disputed facts” should therefore be stricken as improper. Similarly, and as further discussed below, Cox’s Responses to Defendants’ Statement of Undisputed Facts (ECF No. 181-3), shows that there are no genuine issues of material fact that prevent summary judgment from being entered. B. Cox’s First and Second Claims of Retaliation in Violation of Labor Code Section 1102.5 Fail as a Matter of Law Because Cox Failed to Disclose a Violation of Any Federal or State Law, and Roadrunner Had Legitimate, Business Reasons for His Transfer and Termination 1. The Undisputed Facts Show That Cox’s Email And Letter Communications Are Not Protected Activity Because They Fail To Disclose A Violation Of Any Federal Or State Statute, Rule, Or Regulation, And Cox Therefore Did Not Have A Reasonable Belief That Roadrunner Engaged In Illegal Conduct Cox’s claims for retaliation under California Labor Code Section 1102.5 fail as a matter of law. It is undisputed that Cox did not cite to any statute, rule, or regulation that may have been violated by the disclosed conduct in the complaint. It necessarily follows that Cox lacked any foundation for the reasonableness of his belief. Cox’s opposition fails to establish otherwise. First, Cox claims that his September 2016 email and November 2016 letter “informed Defendants’ executive personnel of accounting deficiencies which he suspected violated federal law.” Opp. at 11:19–21. A review of the communications shows they are devoid of the requisite articulation of a specific statute, rule, or regulation that was violated. See ECF Nos. 175-5 (September 2016 email), 175-10 (November 2016 letter). Both communications merely demand an accurate accounting of Cox’s personal earn-out numbers in connection with the Stock Purchase Agreement, and neither come close to articulating a violation of a specific law. At best, Cox expresses a “suspicion” of some unknown and unidentified violation without any legal foundation for his suspicion, which as a matter of law cannot support a retaliation claim under Section 1102.5. Love v. Motion Indus., Inc., 309 F. Supp. 2d 1128, 1135 (N.D. Cal. 2004); Patten v. Grant Joint Union High Sch. Dist., 134 Cal. App. 4th 1378, 1384–85 (2005) (the statute requires that the plaintiff must have a legal foundation for a reasonable suspicion of illegal activity, not merely a suspicion of “improper conduct”). Cox’s “disclosures” involved a personal complaint about his earn-out potential in connection with the Stock Purchase Agreement (an agreement Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 7 of 16 3 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the parties entered before Cox was even employed with Roadrunner).1 Although important to Cox, this was a personal matter particular to him involving the calculation of his earn-out and was not protected activity under Section 1102.5 because it did not involve the disclosure of a violation of a state or federal statute or regulation. As for Cox’s claim that filing a lawsuit in February 2017 constitutes “protected activity” under Section 1102.5, he provides no basis for this conclusion. Opp. at 12. First, the lawsuit was filed after his position changed. Second, an employee engages in protected activity when he discloses reasonably based suspicions of illegal activity to a government agency or his employer with authority to correct the violation. Mokler v. Cty. of Orange, 157 Cal. App. 4th 121, 138 (2007). It is circular reasoning to claim that filing a complaint, which incidentally alleged the same Section 1102.5 violations at issue here (See ECF No. 181-1 at 73–74), is a disclosure of illegal activity “to a person with authority over the employee” under Section 1102.5 that supports filing this complaint that alleges the same Section 1102.5 violations. Cal. Labor Code § 1102.5(b). Cox’s further claim that he can “post hoc identify several statutes possibly violated by Defendants’ conduct,” Opp. at 5:18–19, also fails. The statute requires an employee to identify a specific violation at the time it is reported. The whole purpose of the specificity requirement at the time of the report is to put the employer on notice of the perceived violation. Identifying possible violations at the eleventh hour in an effort to defeat a motion for summary judgment does nothing more than establish Cox did not engage in protected activity under Section 1102.5—and he still has nothing more than a suspicion of a possible violation. Wasco Prod., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“Simply put, summary judgment is not a procedural second chance to flesh out inadequate pleadings.”). Cox failed to identify any of the specific laws in his September 2016 email, November 2016 letter, or even his First Amended Complaint. Doing so now, even if he had done so, is improper and cannot defeat summary judgment. Finally, Cox’s arguments that there is “substantial evidence indicating Plaintiff had reasonable 1 In that regard, Cox’s potential for earn-out premiums are not wages. The earn-out potential was the result of a Stock Purchase Agreement the parties entered into before Cox was employed by Roadrunner and do not purport to compensate Cox for his service as an employee, but rather, would compensate Cox exclusively in connection with his sale of Central Cal to Roadrunner. Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 8 of 16 4 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cause for his belief that Defendants’ conduct violated the law,” misses the point. Opp. at 13. There was no specific law Cox claimed Roadrunner violated in his September and November 2016 communications. It is axiomatic that without identifying a specific violation—there can be no reasonable belief regardless of the eleventh-hour justification Cox now attempts to make. Love, 309 F. Supp. 2d at 1135 (explain that without citing to any statute, rule, or regulation, the plaintiff lacked “any foundation for the reasonableness of his belief”). Even so, Cox’s “substantial evidence” consists of management meetings in which he heard company controllers discuss alleged “Sarbanes-Oxley Act deficiencies.” In other words, Cox based his vague belief on information already known to the company. Mize-Kurzman v. Marin Cmty. Coll. Dist., 202 Cal. App. 4th 832, 858 (2012) (“We agree with . . . federal cases that have held that the report of information that was already known did not constitute a protected disclosure.”). The law is clear – Cox must have identified a specific statute, rule, or regulation and reported this to his employer during his employment. See Fitzgerald v. El Dorado Cty., 94 F. Supp. 3d 1155, 1172 (E.D. Cal. 2015) (“To have a reasonably based suspicion of illegal activity, the employee must be able to point to some legal foundation for his suspicion—some statute, rule or regulation which may have been violated by the conduct he disclosed.”). It is an undisputed fact that he did not do so—reinforced by the fact he is now scrambling around to articulate one now. Cox’s opposition fails to establish protected activity under Section 1102.5 and his eleventh-hour, after-the-fact arguments cannot create a genuine issue as to any material fact. Summary judgment should therefore be granted on this ground alone. 2. Cox’s Transfer From Vice President Of Operations To Director Of Sales Is Not An Adverse Employment Action Because He Was Transferred To A Comparable Position And Roadrunner Had A Legitimate, Nonretaliatory Reason For Transferring Cox Even assuming arguendo Cox satisfied the above requirement, which he did not, as stated previously, Cox’s title change from Vice President of Operations to Director of Sales was a transfer into a comparable position. Important here is the fact that Cox’s original title was a carry-over from his prior ownership of Central Cal. ECF No. 175-7 at 6 (Cox testified that in 2008 he became Vice President of Central Cal and held that title until January 2017 when his position changed). When Central Cal was Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 9 of 16 5 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sold to Roadrunner in 2012, Cox became a Roadrunner employee and retained the same Vice President of Operations title he had for four years, and an incredibly high salary compared to other Roadrunner employees. Cox claims that he was “demoted” to an “untitled sales position.” Opp. at 15. However, Cox’s uncorroborated and self-serving characterization of his title change cannot defeat summary judgment when the undisputed facts show that his position change was not a demotion. F.T.C. v. Neovi, Inc., 604 F.3d 1150, 1159 (9th Cir. 2010) (explaining that a court need not find a genuine issue of fact if, in its determination, a declaration by a single declarant was “uncorroborated and self-serving”). Rather, Plaintiff’s position change was unrelated to his complaints and was a product of finding the right position for him in a new company following his sale of Central Cal. Indeed, Cox was not the only employee who had a title change within the company. See, e.g., ECF No. 175-7 at 9 (Cox knew other employees changed positions after the sale, which is common). Cox had a specific title of Director of Sales, his compensation remained the same, and there is no evidence showing that Cox’s opportunity for advancement was affected (because it was not). Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 (9th Cir. 1995) (“Conclusory or speculative testimony is insufficient to raise a genuine issue of material fact to defeat summary judgment.”). Finally, the undisputed facts show that there is no causal connection between Cox’s vague complaints of “irregularities” and his title change. Temporal proximity “between an employer's knowledge of protected activity and an adverse employment action” must be “very close” to establish causation. Clark Cnty. School Dist. v. Breeden, 532 U.S. 268, 274 (2001) (citing cases finding 3- and 4- months spans insufficient and holding “[a]ction taken . . . 20 months later suggests, by itself, no causality at all”). Cox admitted to having noticed irregularities as early as 2013. ECF No. 175-7 at 10:12 (Cox testified that he noticed irregularities by January of 2013). His position did not change however until January 2017—four years later. He was also aware in November 2012 that he was one of the highest paid employees in the company, well before he made any complaints about perceived financial irregularities. ECF No. 175-7 at 13:15–21. This ultimately led to employee tensions and a financial strain on the company, which Roadrunner in turn sought to rectify while still keeping Cox on as an employee. There simply is no evidence of a causal link between vague concerns regarding Cox’s personal earn-out numbers beginning in 2013 and his position change four years later. Nor does the Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 10 of 16 6 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evidence support that but for Cox’s demands for a financial accounting of his personal earn-out numbers, Roadrunner would not have sought to find a more suitable position for him given the undisputed facts that beginning in November 2012 he was one of the highest paid employees, there was tension about this, and the company was suffering a financial strain. 3. Cox’s Termination Was Not The Result Of Retaliation And His Opposition Points To No Material Facts Supporting That He Would Not Have Been Terminated But For His Alleged “Protected Activity” Similarly, the undisputed facts establish that Cox’s termination flowed from a company-wide layoff necessitated by business performance. Cox’s opposition fails because he tries to avoid the undisputed facts by pretending they do not exist. Ben Kirkland’s undisputed testimony was that as President, it was clear that major cost savings were required. He had a cost savings and performance analysis performed and reviewed the results. Cox ended up on the layoff list because of his extremely high salary compared to others in a job created expressly for him at the end of the earn-out period. It is undisputed that had Cox not been on the list of employees to be laid off, two or three others would have been required to lose their jobs to achieve the same savings. Balancing the impact on one person who had sold his company and was beyond the earn-out period against the impact on two or three other employees in existing positions, Kirkland made the difficult business decision that Cox would be among those laid off. There is no evidence supporting this decision would not have been made but for Cox’s inquiries about his earn-out calculations. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064–65 (9th Cir. 2002) (“To establish causation [a plaintiff] must show by a preponderance of the evidence that engaging in the protected activity was one of the reasons for [his] firing and that but for such activity [he] would not have been fired.”). C. Cox’s Third Claim For Termination In Violation Of Public Policy Fails As A Matter Of Law Because The Undisputed Facts Establish A Legitimate, Nonretaliatory Business Decision For Cox’s Termination And There Is No Evidence Of Pretext To Preclude Summary Judgment Again, the opposition fails to meet the motion for summary judgment, rendering the motion essentially unopposed. Cox effectively concedes he never articulated the statute or constitutional provision to which his public policy claim is tethered in the First Amended Complaint and does not do so now in opposition. As noted in the motion, if we are to engage in guess work, if the public policy is Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 11 of 16 7 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the retaliation provision of the Labor Code then this claim fails for the same reason those claims fail as articulated above. If it is something else, Cox has failed to identify it as required and the claim fails. Finally, if it is the “irregularities” about the earn-out, it is not a public policy issue but rather a very private dispute over what Cox was owed, if anything, under the terms of the earn-out provisions of the Stock Purchase Agreement. The years between the beginning of Cox’s communications regarding the earn-out calculations and the 2016 communications and Cox’s transfer and later termination also negates any inference of a causal link between the two events. And, as noted above, Cox’s termination was a matter of the financial stability of the company in light of a salary that was high by company standards from the beginning in November 2012. Other than Cox’s self-serving beliefs that his termination was wrong, there is no evidence that his termination was linked to anything other than a legitimate business decision. Roadrunner SUF 22–26. See McRae v. Dep't of Corrections & Rehab., 142 Cal. App. 4th 377, 389 (2006) (Plaintiff must demonstrate “specific” and “substantial” evidence of pretext and cannot establish this burden by simply showing that Roadrunner’s actions were “wrong, mistaken, or unwise.”). D. Cox’s Fourth And Fifth Claims For Libel And Slander Fail As A Matter Of Law Because The Publications Are Either Privileged, Do Not Constitute Defamation, Or Fall Outside The Scope Of Roadrunner’s Authority The defamation claims are and were fluff from the outset. As articulated in the motion for summary judgment, the litigation and common interest privileges protect demand letters from being subject to defamation claims. Cox offers nothing of substance to rebut this and does not really dispute the rule of law. He argues that the law should be different for him but argument is not disputed fact nor does it alter the reality of the current law that overwhelmingly favors Defendants. Similarly, Cox does not dispute that his slander claims are based on statements that are not defamatory, and are largely based on projections of future events that have turned out to be factually accurate. Finally, that Cox will not even let go of the non-defamatory statement that a manager allegedly said he was going to loan Cox money to assist him in funding this lawsuit speaks volumes on the credibility of these claims. Undisputed facts establish that Defendants are entitled to judgment as a matter of law on these claims. /// /// Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 12 of 16 8 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. Cox’s Sixth Claim For Failure To Pay Wages Due At Termination Fails As A Matter Of Law Because Cox Was Fully Compensated For The Work He Performed This claim by a highly compensated salaried employee for forwarding a few emails while he was at a school event on the day of his termination fails. The undisputed facts are that Ben Kirkland flew into Fresno with Cox’s correctly calculated final paycheck. Cox, on the other hand, had a school event to attend for which he neither sought nor had approved paid time off. As a consequence, Cox arrived later than anticipated and was promptly terminated. Cox claims that as a salaried, exempt employee he should have been paid for forwarding four emails during the school event and is now, of course, entitled to 30 day’s pay. Whether the email forwarding is compensable is at best a stretch for Cox. Moreover, Cox presented no evidence supporting a finding that Cox forwarding four emails at 6:48 am, 6:57 am, 10:27 am, and 10:32 am on the morning of May 31, 2017 was considered work. See, e.g., Abou-El-Seoud v. United States, 136 Fed. Cl. 537, 567 (2018) (examining a claim that a plaintiff worked uncompensated overtime hours under the FLSA based on email messages, finding that “even if the email messages qualify as ‘work’ under the FLSA, they are no more than ‘de minimis’ work, because many of the email messages simply forwarded documents Plaintiff received from her co-workers or provided short comments about where she would be working that week”). In any event, Ben Kirkland did not know about the school event when he left Georgia with the final check so any shortage could not have been intentional and hence no penalties are due. Moreover, the final paycheck did include the final PTO balance as though Cox had not attended the school event. Hence Cox was in fact overpaid. Cox tries to argue around the facts but fails to articulate a disputed factual issue or a basis under which Defendants are not entitled to judgment as a matter of law. F. Cox’s Seventh Claim For Intentional Interference With Prospective Business Advantage Fails As A Matter Of Law Because There Was No Actual Disruption Of Cox’s Relationship With TGS Or Harm To Him Cox’s opposition fails to establish even the basic elements of intentional interference with prospective economic advantage in light of the facts surrounding his departure from Roadrunner and his non-compete agreement with the company at that time. It is undisputed that Cox ultimately went to work for TGS and he received a salary from the company almost immediately following his departure from Roadrunner. Cox points to no evidence showing Roadrunner’s counsel’s correspondence Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 13 of 16 9 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 intentionally and actually disrupted the relationship between Cox and TGS, or that Cox suffered any economic damage. The fact that Roadrunner filed a separate action against TGS alone demonstrates that Cox and TGS moved forward with any and all economic plans they had. Cox also claims that he was injured because he and TGS had to obtain counsel. Opp. at 31. First, Cox’s employer having to obtain counsel is not an injury suffered by Cox. Second, the letter was sent because Roadrunner legitimately sought to enforce the terms of the non-compete Cox agreed to in November 2012 as part of the sale of his business, and which did not expire for another five months. Reminding Cox of his agreement to Roadrunner is not an attempt to improperly intentionally interfere with anything. That Cox had to seek counsel to respond to the letter on his behalf does not support liability for interference with prospective economic advantage. Nor is Roadrunner’s communication something that falls outside the boundaries of fair competition but rather conduct “essential to the proper functioning of a free- market system.” Settimo Assocs. v. Environ Sys., Inc., 14 Cal. App. 4th 842, 845 (1993) (“‘Ours is a competitive economy in which business entities vie for economic advantage . . . and success goes to him who is able to induce potential customers not to deal with a competitor.’” (quoting Buckaloo v. Johnson, 14 Cal. 3d 815, 828 (1975))). Roadrunner’s correspondence was a legitimate and legal attempt to remind Cox of his contractual obligation under the Stock Purchase Agreement. In any event, it clearly did not work and there was no actual interference because Cox was employed with TGS within weeks. Finally, Cox’s attempt to claim that the letter was retaliation under Section 1102.5 is nonsensical considering he was no longer employed by Roadrunner at the time the letter was sent. Nor was the letter defamation when, as discussed above, it was clearly protected by the litigation privilege. Thus, Cox cannot prove Roadrunner engaged in wrongful conduct by sending the letter because it was not “proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1159 (2003). Even if the Court were to accept Cox’s contention that statements Roadrunner made were motivated by its desire to prevent Cox from becoming employed by TGS, there is no showing it did anything other than pursue its own economic interest in an otherwise lawful manner. /// Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 14 of 16 10 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G. Cox’s Eighth Claim For Failure To Provide An Accurate Itemized Wage Statement Fails As A Matter Of Law Because Cox Failed To Show That Any Error In The Final Statement Was Intentional As previously explained and reiterated above, the error on Cox’s wage statement was unintentional. Mot. at 24:25. To prevail on this claim and recover any damages, Cox must show that the error was knowing and intentional. He must also support his position that he was entitled pay on May 31, 2017 with evidence of work performed. Cox cannot support either argument with evidence. First, Cox admitted he was “sure” Roadrunner was “unaware” of the issue with his paystub. ECF No. 175-7 at 25:14–16. Cox cannot now claim that Roadrunner knowingly made an error on his final wage statement. Further, there was no injury suffered because the dollar amount was correct. See Mot. at 19:23. Cox also complains in his opposition that he did not receive pay for work performed on the day he was terminated. Opp. at 31:20–21. But Cox points to no evidence in support of his position that he actually performed work. On the contrary, the undisputed facts show that Cox was out on vacation time that morning.2 See Roadrunner SUF 31–34 (emails from Cox stating he was out of the office). When Cox arrived at the office, he was immediately terminated. Roadrunner SUF 35. The evidence cited in Cox’s opposition in fact supports that Roadrunner only admits it did not pay Cox for May 31, 2017 because he performed no work that day. ECF No. 181-1 at 156:14–22. Cox’s opposition does nothing to point to any work actually performed that day. Cox cannot simply conclude Roadrunner had a “mistaken belief he did not work” when there is no evidence showing any work performed and Cox fully admitted he was out that morning for vacation. Opp. at 32:3–4. That Cox forwarded four emails while he was out is, at best, de minimis work—especially considering that for the most part Cox simply informed people he was not working. See Abou-El-Seoud, 136 Fed. Cl. at 567. Without showing work performed, there can be no injury. There is no dispute of fact on this and Cox’s claim fails as a matter of law. /// /// 2 If anything, Cox was overpaid on his final paycheck because Roadrunner did not deduct vacation time for his morning out and he received those vacation wages as part of his final pay. Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 15 of 16 11 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER INTERMODAL SERVICES LLC’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION AS TO PLAINTIFF JEFFREY COX’S CLAIMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CONCLUSION Defendants Roadrunner Intermodal Services, LLC and Central Cal Transportation, LLC respectfully request the court to grant summary judgement as to each and every claim Cox brings in the employment case. The opposition is a slurry of arguments that do not articulate genuine issues of material fact in dispute nor does it establish Defendants are not entitled to judgment as a matter of law on each claim. In the end, Cox is someone with seller’s remorse trying to conjure up employment claims because the sale deal did not come out as he had hoped. He can and is contesting the sale in a separate earn-out dispute in state court. There are issues regarding the non-compete and Cox’s misappropriation of Defendants’ trade secrets that are a part of other aspects of this case. The employment claims are devoid of merit and unsupported by facts or law and should be dismissed in favor of a more streamlined case as it approaches trial. Alternatively, if the Court is not inclined to grant the motion in its entirety, Defendants ask that the Court summary adjudicate away the claims that it finds lack merit. Dated: March 26, 2019 GREENBERG TRAURIG, LLP By: /s/ Michelle L. DuCharme James M. Nelson Kurt A. Kappes Michael D. Lane Michelle L. DuCharme Attorneys for Roadrunner Intermodal Services, LLC and Central Cal Transportation, LLC Case 1:17-cv-01056-DAD-BAM Document 197 Filed 03/26/19 Page 16 of 16