Christopher Trimble vs. Fullerton Joint Union High School District

Reply to Opposition

Cal. Super. - 4th Dist.April 5, 2017

A T K I N S O N , A N D E L S O N , L o Y a , Ru ub p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 (5 62 ) 6 5 3 - 3 2 0 0 Fa x: (5 62 ) 6 5 3 - 3 3 3 3 T E L E P H O N E : a ~~ O N Win 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 ATKINSON, ANDELSON, LOYA, RUUD & ROMO A Professional Law Corporation Marlon C Wadlington State Bar No. 192138 MWadlington@aalrr.com 12800 Center Court Drive South, Suite 300 Cerritos, California 90703-9364 Telephone: (562) 653-3200 Fax: (562) 653-3333 ELECTRONICALLY FILED Superior Court of California, County of Orange 06/21/2018 at 03:34:00 Pi Clerk of the Superior Court By & Clerk, Deputy Clerk Attorneys for Defendant, FULLERTON JOINT UNION HIGH SCHOOL DISTRICT SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER CHRISTOPHER TRIMBLE, Case No. CiC 30-2017-00912903-CU-WT- Plaintiff, DEFENDANT FULLERTON JOINT Vv. UNION HIGH SCHOOL DISTRICT’S : REPLY TO PLAINTIFF’S OPPOSITION FULLERTON JOINT UNION HIGH TO ITS MOTION FOR SUMMARY SCHOOL DISTRICT, a public school district, JUDGMENT and DOES I through X, inclusive, Defendants. Date: June 26, 2018 Time: 9:00 a.m. Dept.: C23 Complaint Filed: April 5, 2017 Trial Date: July 30, 2018 Defendant FULLERTON JOINT UNION HIGH SCHOOL DISTRICT (“District”) files its Reply to Plaintiffs Opposition to its Motion for Summary Judgment as follows: I. INTRODUCTION A careful read of the District’s Motion for Summary Judgment (“Motion”) and supporting documents and Plaintiff Christopher Trimble’s (“Plaintiff”) Opposition and supporting documents, as well as a chronological review of the undisputed facts clearly support the fact that Plaintiff made no complaints of illegal conduct or conduct he reasonably believed was illegal, or that the DISTRICT'S REPLY TO PLAINTIFF’S OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT A T K I N S O N , A N D E L S C N , Lo vA a, R u u p & R o m o A P R O F E S S I C N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 10 11 13 14 15 16 17 18 19 20 21 22 23 24 23 26 28 District’s decision to eliminate his position was pretext for a retaliatory motive. Further, Plaintiff's Opposition lacks any credible evidence to support these contentions. Plaintiff's admitted sole evidence consists of'two alleged verbal reports and two emails that do not corroborate that he informed the District of any illegal conduct. Further, Plaintiff’s Opposition does not dispute that the District’s investigation, which was initiated after suspicions of Plaintiff failing to perform his job duties were reported by his subordinates, the ultimate findings of the investigation, and the District’s ultimate decision to eliminate Plaintiff's job position, were pretext for a retaliatory purpose. Finally, Plaintiff's submission of a self-serving declaration to this Court stating that he adequately performed his job duties; that he was given a positive evaluation after four months of working at the District; and that he received two letters of recommendation from District administrators, including the Superintendent; do not support Plaintiff’s contention that his position was eliminated because of a retaliatory motive. II. ARGUMENT A. Plaintiff has presented no credible evidence that he reported any illegal conduct Plaintiff opposed the District’s Motion with a self-serving Declaration in which he admits that the sum total of his reports to the District were two verbal statements which contain no specificity, and two emails that do not support that he reported some sort of illegal conduct to the District. Plaintiff®s own statement is that he simply told the District that some conduct was illegal. Assuming the verbal statements occurred, and it is the District’s contention that they did not, there is ample case law supporting the contention that vague reports regarding an alleged violation of law do not as a matter of law place an employer on notice of a violation of the law. (See Morelewicz v. Government Employees Insurance Company, (2006) 207 Fed. Appx. 823, 825-826. ((This argument is without merit. Morelewicz's attempt to schedule training sessions does not, without additional context or explanation to GEICO, reasonably alert GEICO as to the purported statutory violations)). Nowhere in Plaintiff's Opposition does he state that he informed the District of any specific law, statute or regulation it would be violating with its attempts to ensure -2. DISTRICT'S REPLY TO PLAINTIFF'S OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT A T K I N S O N , A N D E L S O N , L o Y A , R u u p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 3 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that as many eligible students applied for the free and reduced meal program as possible. Further, Plaintiff attaches two emails to his Declaration, one dated September 1, 2016, and another dated October 4, 2016. (See Plaintiff’s Declaration Exhibits C and D). The first email from Ron Lebs, the District’s Assistant Superintendent of Business Services, asks for feedback regarding how to make sure that the District’s switch from paper applications to online enrollment wasn’t affecting the number of students that were enrolling in the free and reduced lunch program. Interestingly, it is Ron Lebs, not Plaintiff, that brings up the question of whether the District could “reach out to the families personally and more interesting, Plaintiff never responds to Mr. Lebs’ email with any information regarding illegalities. It defies logic that Plaintiff would not have welcomed the opportunity to respond to that email request for information if he legitimately had concerns about alleged illegal targeting. The second email from Jennifer Williams does not corroborate Plaintiff's aliegation that he informed her that there was any illegal targeting. A review of the email confirms that Ms. Williams simply refers the District Principals to Plaintiff's earlier email in which he sent out a list of student names to the Principals. Even if these emails were evidence of Plaintiff’s report of illegal conduct, and they are not, a plaintiff relying on circumstantial evidence of whistleblowing must present substantial evidence of pretense in order to create a triable issue of fact. (See Morgan v. The Regents of the University of California, (2000) 88 Cal.App.4th 52, 69. (Circumstantial evidence of “ ‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate” on an improper basis.) Further, these two alleged verbal reports, and unsupportive vague and ambiguous emails are not as a matter of law sufficient to support a whistleblowing claim. (See Nosal-Taylor v. Chula Vista Medical Center, 239 Cal. App.4th 1224, 1244-1246. ((Plaintiff’s appeal of defendant’s successful motion for summary judgment was overturned by the Court of Appeals only because Plaintiff adequately produced numerous documents substantiating her allegation that she reported conduct with specific accuracy to her employer that she believed constituted illegal activity.)) -3- DISTRICT'S REPLY TO PLAINTIFF’S OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT A T K I N S O N , A N D E L S O N , L o y a , R u u b & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F a x : ( 5 6 2 ) 6 5 3 - 3 3 3 3 O w 3 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 B. A review of the undisputed chronology of events support the District’s contention that there was no report of any illegal conduct by Plaintiff and no plot by the District’s administration to retaliate against Plaintiff for any alleged reporting of illegal conduct. Plaintiff was hired in November of 2015, which was during the 2015-2016 school year. He received an Evaluation in March of 2016, which concluded that he was performing his job duties satisfactorily. (See Plaintiff's Declaration, Paragraph 3, and Plaintiff's Exhibit A). Plaintiff states that at a meeting on September 1, 2016, he verbally told the Assistant Superintendent of Business, Ron Lebs, “you can’t do that. It is illegal. You can’t target students that way.” (See Plaintiff’s Opposition, Page 5, lines 14 - 23). Plaintiff states that approximately one month later, on October 4, 2016, he verbally told another official at the District that students cannot be targeted and this conduct was illegal. (See Plaintiff’s Opposition Page 6 lines 1-9). Plaintiff states that after his verbal report on October 4, 2016 he “experienced estrangement from the rest of the management team.” (See Plaintiff’s Declaration, Paragraph 11). However, on the November 14, 2016, over a month after this “estrangement,” Plaintiff states that he received a letter of recommendation from the District’s Superintendent and another Director to participate in the Chief Business Officer’s Training Program. (See Plaintiffs Declaration in Support of his Opposition, Paragraph 4). On November 29, 2016, Geri Imler’s letter, which raised concerns regarding Plaintiffs collection of vending machine monies, was brought to the attention of Dave Bennett, Director of Business Services. (See Declaration of Dave Bennet, Paragraph 3 and Declaration of Geri Imler, Paragraph 3 and Exhibit A to Imler Declaration). Also on November 29, 2016, Carl Erickson, Director of Human Resources and Dr. Ed Atkinson began an investigation into the concerns raised by Geri Imler and Asma Chaudhry and concluded after speaking with each Food Service Lead at the school sites that Plaintiff was not performing the job duties he purported to perform. (See Declarations of Asma Chaudhry, Paragraphs 3-11, Carl Erickson, Paragraphs Nos. 3-9 and Declaration of Dr. Edward Atkinson, sd = DISTRICT'S REPLY TO PLAINTIFF'S OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT A T K I N S O N , A N D E L S O N , Lo yA a, R u u b & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 C E R R I T O S , C A L I F O R N I A 8 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F a x : ( 5 6 2 ) 6 5 3 - 3 3 3 3 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 28 Paragraphs Nos. 3-8). Plaintiff admits that on December 6, 2016 he was placed on administrative leave, that his position was eliminated in February of 2017, and that he received wages from the District until April of 2017. (See Plaintiff’s Statement of Disputed Issues in Response to Defendant’s Separate Statement of Alleged Undisputed Material Facts, No. 9). A quick read of the order of events does not support his contention that he was “estranged” by the District’s administration. Subsequent to his only two alleged verbal complaints of alleged violations of law by District administrators, Plaintiff received a letter of recommendation from the highest ranking individual in the District, the Superintendent, and another Director at the District, recommending that he be placed in a training program to become a Chief Business Official. Those admitted facts do not support any allegation of estrangement. More importantly, a review of the events corroborates the District’s version of events that that Plaintiff never made any report of any alleged illegal conduct. (See Declarations of Carl Erickson, Dr. Ed. Atkinson, Jennifer Williams, Dave Bennett and Ron Lebs confirming that Plaintiff never made any report of alleged illegal conduct). C. Plaintiff has produced no credible evidence that the District’s decision to eliminate his job at the District was pretext for a retaliatory motive. Plaintiff raises other vague contentions in his declaration regarding the fact that the District’s elimination of his job was pretext for a retaliatory motivation and those will be addressed below. Plaintiff's contention that he received a positive evaluation in March of 2016 after 4 months of employment at the District is irrelevant and does not support that there was a pretextual motivation by the District in December of 2016 to place Plaintiff on administrative leave. As stated above, the District’s investigation of Plaintiff’s job performance only occurred after two subordinates raised concerns to District administration at the end of November of 2016. (See Declarations of Carl Erickson, Dr. Ed. Atkinson, Geri Imler, Dave Bennett and Asma Chaudhry confirming that the District’s investigation into Plaintiff's job performance only began in late November of 2016 based on concerns raised by Imler and Chaudhry). -5- DISTRICT’S REPLY TO PLAINTIFF'S OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT A T K I N S O N , A N D E L S O N , Lo ya A, R u u p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F a x : ( 5 6 2 ) 6 5 3 - 3 3 3 3 10 -- oD 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s next contention is that after he was “terminated”, the District advertised a position which had a similar job description as the Food Services Director position he held. (See Plaintiff's Declaration, Paragraph 16). However, Plaintiff produces no evidence that any such position was advertised by the District or ultimately created. Plaintiff’s self-serving Declaration lacks foundation and is otherwise unreliable. To the contrary, the District’s evidence supports that when Plaintiff’s position was eliminated, his job duties were already being performed by existing employees within the District and therefore there was no need for Plaintiff’s job position. (See Declarations of Carl Erickson and Dr. Ed Atkinson, Paragraphs 9 and 10, and Paragraph 8 respectively). Further, Plaintiff's subjective beliefs in an employment discrimination/retaliation case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations. (See King v. United Parcel Service, Inc. (2007) 152 Cal. App.4th 426, 433-434. Also, Plaintiff’s evidence must relate to the motivation of the decision makers to prove, by nonspeculative evidence, an actual causal link between prohibited motivation and termination. Id. The remainder of Plaintiff's self-serving Declaration simply states that the District’s investigation is wrong but he produces no evidence to support that the District’s contentions are inaccurate. For instance, Plaintiff presents no evidence refuting Carl Erickson’s and Dr. Ed Atkinson’s Declarations wherein they clearly indicated who was interviewed regarding Plaintiff’s performance deficiencies and what they were told by the individuals interviewed regarding Plaintiff’s failures to perform his job duties. Plaintiff's attempts to distance himself from the events that occurred at the different school sites regarding day to day operations, and his attempts to blame both subordinates and other District administrators for his failures should be frowned upon by this Court. (See Plaintiff’s Declaration, Paragraphs 19-22). IIL. CONCLUSION Plaintiff’s allegation that he verbally reported illegal conduct to the District on two occasions and then was estranged by District management is in no way supported by the undisputed timeline of events confirming that after his alleged verbal reports he received letters of recommendation from the highest ranking official in the District and another Director. Further, -6- DISTRICT'S REPLY TO PLAINTIFF'S OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT A T K I N S O N , A N D E L S O N , L o y a , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : ( 5 6 2 ) 6 5 3 - 3 2 0 0 FA X: (5 62 ) 6 5 3 - 3 3 3 3 10 11 13 14 15 16 17 18 19 20 21 22 23 24 28 26 27 28 Plaintiff’s own statements establish that he never made any complaint of illegal conduct with the specificity required by law to constitute whistleblowing as a matter of law. It is also undisputed that Plaintiff never made ANY written complaints to the District until after he was placed on administrative leave. Plaintiff also has produced no evidence to refute the Districts’ investigative findings that arose after subordinates, not administrators, complained about Plaintiff’s failure to perform his job duties and instead attempts to allege that his subordinates and fellow administrators were responsible for any deficiencies in his performance. For these reasons, the District respectfully requests that this Court grant its Motion as to Plaintiffs sole cause of action alleging a violation of Labor Code § 1102.5. Dated: June 21, 2018 ATKINSON, ANDELSON, LOYA, RUUD & ROMO / By: a W/ Marlon C Wadlington Attorneys for Defendant, FULLERTON JOINT UNION HIGH SCHOOL DISTRICT «Tm DISTRICT'S REPLY TO PLAINTIFF'S OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT A T K I N S O N , A N D E L S O N , Lo vy a, R u u p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 Fa x: (5 62 ) 6 5 3 - 3 3 3 3 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE [FRCP 5(B)](CODE CIV. PROC. § 1013A(3)) STATE OF CALIFORNIA, COUNTY OF LOS ANGELES [ am employed in the County of Los Angeles, State of California. I am over the age of 18 years and am not a party to the within action; my business address is 12800 Center Court Drive South, Suite 300, Cerritos, California 90703-9364. On June 21, 2018, I served the following document(s) described as DEFENDANT FULLERTON JOINT UNION HIGH SCHOOL DISTRICT’S REPLY TO PLAINTIFFS OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT on the interested parties in this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows: William M. Crosby Attorney for Plaintiff CHRISTOPHER 13522 Newport Avenue, Suite 201 TRIMBLE Tustin, CA 92780-3707 (714) 544-2493 Fax (714) 544-2497 wcrosby@wcrosbylaw.com vl BY MAIL: I deposited such envelope in the mail at Cerritos, California. The envelope(s) was mailed with postage thereon fully prepaid. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. It is deposited with U.S. postal service on that same day in the ordinary course of business. | am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing an affidavit. X BY ELECTRONIC SERVICE VIA ONE LEGAL: Complying with California Rule of Court 2.251 and Code of Civil Procedure § 1010.6, I caused a true and correct copy of the document(s) to be served through One Legal at www.onelegal.com addressed to the parties shown herein appearing on the above-entitled case. The service transmission was reported as complete and a copy of One Legal’s Receipt/Confirmation Page will be maintained with the original document in this office. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 21, 2018, at Cerritos, California. i. ; / / LA SEE, Ti A. Kare v v \ DISTRICT'S REPLY TO PLAINTIFF'S OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT