Jamison Sorensen v. National Railroad Passenger Corporation et al

NOTICE OF MOTION AND MOTION for Summary Judgment as to OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT [FED. R. CIV. PROC. 56; L.R. 7-3, 56-1]

C.D. Cal.May 22, 2017

LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 MICHAEL A. GREGG, Bar No. 205524 mgregg@littler.com SAMI HASAN, Bar No. 272333 shasan@littler.com LITTLER MENDELSON, P.C. 2050 Main Street Suite 900 Irvine, CA 92614 Telephone: 949.705.3000 Facsimile: 949.724.1201 Attorneys for Defendants NATIONAL RAILROAD PASSENGER CORPORATION dba AMTRAK and RITA CROZIER UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JAMISON SORENSEN, an individual, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION dba AMTRAK, a District of Columbia corporation; RITA CROZIER, and Individual; and DOES 1 through 10, Inclusive, Defendants. Case No. 5:16-cv-1343-AB (JPRx) ASSIGNED TO HONORABLE ANDRE BIROTTE JR. NOTICE OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT [FED. R. CIV. PROC. 56; L.R. 7-3, 56-1] Date: June 19, 2017 Time: 10:00 a.m. Ctrm: Courtroom 7B Trial Date: September 26, 2017 Case 5:16-cv-01343-AB-JPR Document 27 Filed 05/22/17 Page 1 of 6 Page ID #:293 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 1. TO PLAINTIFF JAMISON SORENSEN AND HIS COUNSEL OF RECORD: PLEASE TAKE NOTICE that at 10:00 a.m. on June 19, 2017, or as soon thereafter as this matter can be heard in Courtroom 7B of the United States District Court for the Central District of California, Defendants National Railroad Passenger Corporation dba Amtrak and Rita Crozier (“Defendants”) will and hereby do move this Court, pursuant to Federal Rules of Civil Procedure, Rule 56, for summary judgment on the grounds that no triable issue of material fact exists and that Defendants are entitled to judgment as a matter of law. Defendants seek summary judgment, or alternatively, partial summary judgment as to Plaintiff Jamison Sorensen’s (“Plaintiff”) individual claims or the issues therein on the following grounds: 1. Plaintiff’s First Cause of Action for whistleblower retaliation in violation of California Labor Code §§ 1102.5 and 1102.6 fails as a matter of law because he cannot establish a prima facie claim of whistleblower retaliation because Plaintiff cannot establish that he possessed reasonably based suspicions of illegal activity. 2. Plaintiff’s First Cause of Action for whistleblower retaliation in violation of California Labor Code §§ 1102.5 and 1102.6 fails as a matter of law because he cannot establish a prima facie claim of whistleblower retaliation because Plaintiff has failed to provide any evidence demonstrating that raising his concerns caused any discipline, including termination. 3. Plaintiff’s First Cause of Action for whistleblower retaliation in violation of California Labor Code §§ 1102.5 and 1102.6 fails as a matter of law because Amtrak had a legitimate, non-discriminatory reason to discipline and then terminate Sorensen’s employment. 4. Plaintiff’s First Cause of Action for whistleblower retaliation in violation of California Labor Code §§ 1102.5 and 1102.6 fails as a matter of law because there is no credible evidence that Amtrak’s asserted reasons for disciplining and then terminating Plaintiff were a pretext for retaliation. Case 5:16-cv-01343-AB-JPR Document 27 Filed 05/22/17 Page 2 of 6 Page ID #:294 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 2. 5. Plaintiff’s Second Cause of Action retaliation in violation of the California Fair Employment and Housing Act (“FEHA”) fails as a matter of law because he cannot establish a prima facie claim of retaliation because Plaintiff’s contention that Amtrak’s Attendance Policy violated FEHA was subjectively and objectively unreasonable. 6. Plaintiff’s Second Cause of Action retaliation in violation of the California Fair Employment and Housing Act (“FEHA”) fails as a matter of law because he cannot establish a prima facie claim of retaliation because Sorensen has failed to provide any evidence demonstrating that raising his concerns caused any discipline, including termination. 7. Plaintiff’s Second Cause of Action retaliation in violation of the California Fair Employment and Housing Act (“FEHA”) fails as a matter of law because Amtrak had a legitimate, non-discriminatory reason to discipline and then terminate Sorensen’s employment. 8. Plaintiff’s Second Cause of Action retaliation in violation of the California Fair Employment and Housing Act (“FEHA”) fails as a matter of law because there is no credible evidence that Amtrak’s asserted reasons for disciplining and then terminating Plaintiff were a pretext for retaliation. 9. Plaintiff’s Third Cause of Action for associational disability discrimination in violation of FEHA fails as a matter of law because he cannot establish a prima facie case of associational disability discrimination because he cannot establish that he was associated with anyone who was disabled. 10. Plaintiff’s Third Cause of Action for associational disability discrimination in violation of FEHA fails as a matter of law because Amtrak had a legitimate, non-discriminatory reason to discipline and then terminate Sorensen’s employment. 11. Plaintiff’s Third Cause of Action for associational disability discrimination in violation of FEHA fails as a matter of law because there is no Case 5:16-cv-01343-AB-JPR Document 27 Filed 05/22/17 Page 3 of 6 Page ID #:295 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 3. credible evidence that Amtrak’s asserted reasons for disciplining and then terminating Plaintiff were a pretext for retaliation. 12. Plaintiff’s Fourth Cause of Action for Failure to Prevent Discrimination or Harassment fails as a matter of law because Plaintiff does not sufficiently allege harassment, based on membership of any protected class. 13. Plaintiff’s Fourth Cause of Action for Failure to Prevent Discrimination or Harassment fails as a matter of law because his termination constitutes a commonly necessary personnel management action, which does not fall within the meaning of harassment. 14. Plaintiff’s Fourth Cause of Action for Failure to Prevent Discrimination or Harassment fails as a matter of law because Sorensen cannot establish his underlying claims under FEHA, and therefore, his “failure to prevent” claim also fails as a matter of law. 15. Plaintiff’s Fourth Cause of Action for Failure to Prevent Discrimination or Harassment fails as a matter of law because Amtrak took appropriate steps to prevent discrimination and/or harassment from occurring. 16. Plaintiff’s Fifth Cause of Action against Defendant Rita Crozier for defamation fails as a matter of law because any statements made by Crozier regarding Plaintiff solely centered on his performance in his employment and not for some improper purpose and would be privileged. 17. Plaintiff’s Fifth Cause of Action against Defendant Rita Crozier for defamation fails as a matter of law because Plaintiff fails to identify any specific statement that he alleges to be false and defamatory. 18. Plaintiff’s Fifth Cause of Action against Defendant Rita Crozier for defamation fails as a matter of law because Plaintiff cannot prove any statements allegedly made by Crozier were false. 19. Plaintiff’s Sixth Cause of Action for Wrongful Termination in Violation of Public Policies fails as a matter of law because an employee may not assert a Case 5:16-cv-01343-AB-JPR Document 27 Filed 05/22/17 Page 4 of 6 Page ID #:296 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 4. wrongful termination in violation of public policy claim as a fallback to a statutory claim, where the underlying statutory claim itself fails. 20. Plaintiff’s Seventh Cause of Action for retaliation in violation of the Americans with Disabilities Act (“ADA”) fails as a matter of law because he cannot establish a prima facie case of retaliation because Plaintiff’s contention that Amtrak’s Attendance Policy violated ADA was subjectively and objectively unreasonable. 21. Plaintiff’s Seventh Cause of Action for retaliation in violation of ADA fails as a matter of law because he cannot establish a prima facie claim of retaliation because Sorensen has failed to provide any evidence demonstrating that raising his concerns caused any discipline, including termination. 22. Plaintiff’s Seventh Cause of Action for retaliation in violation of ADA fails as a matter of law because Amtrak had a legitimate, non-discriminatory reason to discipline and then terminate Sorensen’s employment. 23. Plaintiff’s Seventh Cause of Action for retaliation in violation of ADA fails as a matter of law because there is no credible evidence that Amtrak’s asserted reasons for disciplining and then terminating Plaintiff were a pretext for retaliation. 24. Plaintiff’s Eighth Cause of Action retaliation in violation of the Family and Medical Leave Act (“FMLA”) fails as a matter of law because he cannot establish a prima facie claim of retaliation because Plaintiff’s contention that Amtrak’s Attendance Policy violated FMLA was subjectively and objectively unreasonable. 25. Plaintiff’s Eighth Cause of Action for retaliation in violation of FMLA fails as a matter of law because he cannot establish a prima facie claim of retaliation because Sorensen has failed to provide any evidence demonstrating that raising his concerns caused any discipline, including termination. 26. Plaintiff’s Eighth Cause of Action for retaliation in violation of FMLA fails as a matter of law because Amtrak had a legitimate, non-discriminatory reason to discipline and then terminate Sorensen’s employment. 27. Plaintiff’s Eighth Cause of Action for retaliation in violation of FMLA Case 5:16-cv-01343-AB-JPR Document 27 Filed 05/22/17 Page 5 of 6 Page ID #:297 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 5. fails as a matter of law because there is no credible evidence that Amtrak’s asserted reasons for disciplining and then terminating Plaintiff were a pretext for retaliation. 28. Plaintiff’s Request for Punitive Damages fails as a matter of law because there is no evidence, let alone clear and convincing evidence, that an officer, director, or managing agent of Amtrak acted with oppression, fraud, or malice. This Motion is based upon this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities filed in support of this Motion, [Proposed] Statement of Uncontroverted Facts and Conclusions of Law, and the Declarations of Luther Curtis, Rachel Dye, Rita Crozier, Diane Pitts, Michael A. Gregg, and Gerald Powell, and all exhibits attached thereto, as well as the pleadings, records and files in this case, and upon such other, further oral and documentary evidence that may be presented at or before hearing on this matter. 29. This Motion is made following the conference of Defendants’ counsel, Michael A. Gregg, and Plaintiff’s counsel, Geoffrey Lyon, pursuant to Local Rule 7-3, which took place on May 15, 2017, and is described more fully in the declaration of Michael A. Gregg, filed concurrently herewith. Dated: May 22, 2017 /s/ Michael A. Gregg MICHAEL A. GREGG SAMI HASAN LITTLER MENDELSON, P.C. Attorneys for Defendants NATIONAL RAILROAD PASSENGER CORPORATION DBA AMTRAK AND RITA CROZIER Firmwide:147735736.2 090621.1017 Case 5:16-cv-01343-AB-JPR Document 27 Filed 05/22/17 Page 6 of 6 Page ID #:298 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 MICHAEL A. GREGG, Bar No. 205524 mgregg@littler.com SAMI HASAN, Bar No. 272333 shasan@littler.com LITTLER MENDELSON, P.C. 2050 Main Street Suite 900 Irvine, CA 92614 Telephone: 949.705.3000 Facsimile: 949.724.1201 Attorneys for Defendants NATIONAL RAILROAD PASSENGER CORPORATION dba AMTRAK and RITA CROZIER UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JAMISON SORENSEN, an individual, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION dba AMTRAK, a District of Columbia corporation; RITA CROZIER, and Individual; and DOES 1 through 10, Inclusive, Defendants. Case No. 5:16-cv-1343-AB (JPRx) ASSIGNED TO HONORABLE ANDRE BIROTTE JR. DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT [FED. R. CIV. PROC. 56; L.R. 7-3, 56-1] Date: June 19, 2017 Time: 10:00 a.m. Ctrm: Courtroom 7B Trial Date: September 26, 2017 Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 1 of 31 Page ID #:299 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 PAGE i. I. INTRODUCTION ............................................................................................... 1 II. FACTUAL BACKGROUND ............................................................................. 1 A. Plaintiff’s Employment with Amtrak ........................................................ 1 B. Amtrak’s Attendance Policy and Its Agreement with the Transportation Communication Union ..................................................... 1 C. Enforcement of Attendance Policy at Riverside Call Center ................... 3 D. June 2013 Counseling of Plaintiff for Belligerent Conduct ..................... 3 E. December 16, 2013 Low Performance Evaluation and Performance Improvement Plan ..................................................................................... 5 F. Plaintiff’s September 2014 Final Warning ............................................... 6 G. Plaintiff Receives Additional Counseling For Unauthorized Computer Access ...................................................................................... 7 H. Plaintiff Accesses Amtrak’s Computer Database To Override The Maximum Daily Vacation Allowance And Approve Vacation For A Number of Employees Without Authorization ..................................... 7 I. Hearing Officer’s Decision Upholding Charges Against Sorensen.......... 8 III. LEGAL STANDARD ......................................................................................... 9 IV. LEGAL ARGUMENT ........................................................................................ 9 A. Plaintiff’s First, Second, Seventh and Eighth Causes of Action Related to Purported Whistleblowing Activities All Fail as a Matter of Law ............................................................................................ 9 1. Plaintiff Cannot Establish A Prima Facie of Retaliation .............. 10 a. Plaintiff Did Not Engage in Protected Activity ................. 11 (1) No protected activity under § 1102.5 ....................... 11 (2) No protected activity under FEHA or ADA ............ 12 (3) No protected activity under FMLA .......................... 12 b. Plaintiff Cannot Establish a Causal Connection Between Any Protected Activity and Any Adverse Employment Action ............................................................ 13 2. Amtrak Had a Legitimate Non-Retaliatory Reason for Plaintiff’s Termination .................................................................. 15 Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 2 of 31 Page ID #:300 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 (CONTINUED) PAGE ii. 3. Plaintiff Cannot Establish That His Termination Was Pretextual ...................................................................................... 15 B. Sorensen’s Claim for FEHA Associational Discrimination Fails .......... 17 C. Plaintiff’s Failure To Prevent Claim Fails .............................................. 19 D. Defendant Crozier Did Not Defame Sorensen As a Matter of Law ....... 20 E. Plaintiff’s Claim for Wrongful Termination in Violation of Public Policy Fails for the Same Reasons as His Statutory Claims ................... 22 F. Plaintiff Is Not Entitled to Punitive Damages ......................................... 22 V. CONCLUSION ................................................................................................. 23 Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 3 of 31 Page ID #:301 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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) iii. Federal Cases Bradley v. Harcourt, Brace and Co., 104 F.3d 267 (9th Cir.1996) .................................................................................... 11 Brock v. Lucky Stores, Inc., 23 F. App’x 709 (9th Cir. 2001) .............................................................................. 16 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)................................................................................................... 9 Cuevas v. Skywest Airlines, 17 F. Supp. 3d 956 (N.D. Cal. 2014) ........................................................... 15, 17, 22 Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir.2002) .................................................................................... 19 Gilmour v. Gates, McDonald & Co., 382 F.3d 1312 (11th Cir. 2004) ............................................................................... 19 Int’l Bhd. of Teamsters v. Allegiant Air, LLC, 788 F.3d 1080 (9th Cir. 2015) ................................................................................. 16 Johnson v. Johns Hopkins Univ. Applied Physics Lab, LLC, 2013 U.S. Dist. LEXIS 112097 (S.D. Cal. Aug. 8, 2013) ....................................... 11 Kimbrough v. Cincinnati Ass’n for Blind and Visually Impaired, 986 F.Supp.2d 904 (S.D. Ohio 2013) ...................................................................... 12 Love v. Motion Industries, Inc., 309 F. Supp. 2d 1128 (N.D. Cal. 2004) ................................................................... 11 Matima v. Celli, 228 F3d 68 (2d Cir. 2000) ....................................................................................... 17 Oliveras-Sifre v. Puerto Rico Dep’t of Health, 214 F.3d 23 (1st Cir.2000) ....................................................................................... 19 Smith v. Singer Co., 650 F.2d 214 (9th Cir. 1981) ................................................................................... 17 Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 4 of 31 Page ID #:302 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 (CONTINUED) PAGE iv. Tyson v. Access Services, 158 F. Supp. 3d 309 (E.D. Pa. 2016) ....................................................................... 19 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) ................................................................................. 14 California Cases Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826 (2001) ............................................................................................. 15 Aisenson v. American Broadcasting Co. (1990) 220 Cal. App. 3d 146 [269 Cal. Rptr. 379] ............................................................. 21 Akers v. County of San Diego, 95 Cal. App. 4th 1441 (2002) ............................................................................ 10, 15 Basich v. Allstate Ins., 87 Cal. App. 4th 1112 (2001) .................................................................................. 22 Cal. Fair Employment & Hsg. Comm’n v. Gemini Aluminum Corp., 122 Cal. App. 4th 1004 (2004) ................................................................................ 20 Castro-Ramirez v. Dependable Highway Express, Inc., 2 Cal. App. 5th 1028, 1036 (2016) .................................................................... 17, 18 Chen v. County of Orange, 96 Cal. App. 4th 926 (2002) .................................................................................... 14 Couch v. San Juan Unified School District, 33 Cal.App.4th 1491 (1995) .................................................................................... 21 Cruz v. HomeBase, 83 Cal. App. 4th 160 (2000) .................................................................................... 23 Deaile v. General Tel. Co of California, 40 Cal. App. 3d 841 (1974) ..................................................................................... 21 Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307 (2015) ................................................................................ 20 Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 5 of 31 Page ID #:303 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 (CONTINUED) PAGE v. Dudley v. Dep’t of Transp., 90 Cal. App. 4th 255 (2001) .................................................................................... 11 Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590 (1989) ................................................................................... 20 Hersant v. Dep’t of Soc. Serv., 57 Cal. App. 4th 997 (1997) .................................................................................... 15 Horn v. Cushman & Wakefield Western, Inc., 72 Cal. App. 4th 798 (1999) .................................................................................... 16 Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55 (1996) ...................................................................................... 20 Jumaane v. City of Los Angeles, 241 Cal. App. 4th 1390 (2015) ................................................................................ 20 Kelley v. Conco Companies, 196 Cal. App. 4th 191 (2011) .................................................................................. 20 Kelly v. Vons Companies, Inc., 67 Cal. App. 4th 1329 (1998) .................................................................................. 16 Kelly-Zurian v. Wohl Shoe Co., 22 Cal. App. 4th 397 (1994) .................................................................................... 20 Loggins v. Kaiser Permanente Int’l, 151 Cal. App. 4th 1102 (2007) .......................................................................... 14, 16 Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264 (2006) ............................................................................................. 20 Mock v. Mich. Millers Mut. Ins. Co., 4 Cal. App. 4th 306 (1992) ...................................................................................... 22 Patten v. Grant Joint Union High School Dist., 134 Cal.App.4th 1378 (2005) .................................................................................. 12 Smith v. Maldonado, 72 Cal. App. 4th 637 (1999) .............................................................................. 21, 22 Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 6 of 31 Page ID #:304 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 (CONTINUED) PAGE vi. Stevenson v. Sup. Ct., 16 Cal. 4th 880 (1997) ............................................................................................. 22 Trujillo v. N. County Transit Dist., 63 Cal. App. 4th 280 (1998) .................................................................................... 19 Wade v. Ports Am. Mgmt. Corp., 218 Cal. App. 4th 648 (2013) .................................................................................. 16 White v. Ultramar, Inc., 21 Cal. 4th 563 (1999) ............................................................................................. 22 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028 (2005) ..................................................................................... 11, 12 Federal Statutes 42 U.S.C. § 12203(a) .................................................................................................... 12 California Statutes California Civil Code §§ 45, 46 .................................................................................... 20 California Civil Code § 3294(a) & (b) ......................................................................... 22 California Labor Code§ 233(b)(3)(B) .......................................................................... 11 California Labor Code § 245.5(a)(1) ............................................................................ 11 California Labor Code § 1102.5 ................................................................................... 10 California Labor Code § 1102.5(b) ............................................................ 10, 11, 12, 15 California Labor Code § 1102.6 ................................................................................... 10 Government Code § 12940(h) ...................................................................................... 12 Government Code § 12940(k) ...................................................................................... 19 Other Authorities 29 C.F.R. § 825.220(a)(2) ............................................................................................. 12 Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 7 of 31 Page ID #:305 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 (CONTINUED) PAGE vii. Fed. R. Civ. P. 56 ............................................................................................................ 9 Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 8 of 31 Page ID #:306 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 1. I. INTRODUCTION Plaintiff Jamison Sorensen (“Sorensen” or “Plaintiff”) was terminated from Amtrak on December 3, 2015 for accessing an internal Amtrak computer program/database without authorization and overriding the system to approve time off for several employees without authority to do so. Sorensen admitted to engaging in this conduct. Indeed, he had been counseled several times before for unauthorized access to Amtrak’s programs/database, as well as violations of Amtrak’s policies on protecting confidential information. Sorensen had also been recently counseled for disrespectful behavior. Plaintiff challenged his termination in a full hearing on January 19, 2016 pursuant to the Collective Bargaining Agreement (“CBA”) between Amtrak and Plaintiff’s union. The hearing officer found that Plaintiff accessed Amtrak’s program/electronic database without authorization and approved time off for a number of employees without authorization. Plaintiff’s claims of retaliation, wrongful termination, associational discrimination and defamation are meritless as shown below. II. FACTUAL BACKGROUND A. Plaintiff’s Employment with Amtrak Mr. Sorensen was employed by Amtrak from 1991 through his termination on December 3, 2015. (UF 1.) At the time of Plaintiff’s termination, he worked as Escalations Desk Supervisor at Amtrak’s Western Reservation Sales Center, in Riverside, California (“Riverside Call Center”). (UF 1.) At the Call Center, Sorensen supervised employees, also known as agents, who handled calls from Amtrak customers, related to both sales and customer service. (UF 3.) Plaintiff has a bachelor’s degree in Information Technology. (Deposition of Jamison Sorensen (“Sorensen Dep.”) 22:16-20.) B. Amtrak’s Attendance Policy and Its Agreement with the Transportation Communication Union During all relevant periods at issue in the Complaint, the employment of employees under Sorensen’s supervision was governed by an agreement between Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 9 of 31 Page ID #:307 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 2. Amtrak and the Transportation Communication Union (“TCU”). (UF 4.) Rule 19 of the TCU Agreement provides a detailed policy regarding employee sick leave. Amtrak also administers a national attendance policy for all “agreement covered [non- supervisory] employees,” which supplements the TCU Agreement’s sick leave policy. (UF 5-6.) The Attendance Policy went into effect on May 17, 1999 and was updated on August 5, 2004 and “applies to all Amtrak employees covered by collective bargaining agreements.” (UF 7.) Under the Attendance Policy, “[p]erfect attendance is defined as being present for duty and working a complete assignment, on every day that the employee is scheduled to work, or being marked up for work as scheduled, all throughout the measurement period.” (UF 8.) “Occurrences of absence or tardiness are the basis upon which performance is measured for purposes of counseling or discipline.” (UF 9.) The Attendance Policy defines occurrences for “off-train employees” as follows:  A single absence from work or an assignment on one or more consecutive days for the same reason; or  Late arrival, early departure, late return from lunch/break, or midday absence, or  Absence from scheduled overtime. (UF 10.) Under the Attendance Policy, the following situations do not count as an “occurrence of absence for potential consideration regarding counseling or discipline:” scheduled vacations, scheduled holidays, where applicable, certain approved absences (specifically for jury duty, military leave, bereavement leave, and Operation Care), E-time in the Reservation Call Centers, pre-approved exchanged of assignments, pre-approved TCU-agreement “trade days,” pre-approved absences authorized by the employee’s department head to ensure adequate rest or for other Amtrak business purposes, pre-approved union business, compensatory time provided under labor contracts, absences due to Operation Red Block, and absences covered by and approved under the Americans with Disabilities Act, the Family Medical Leave Act, and any other state and federal law. (UF 11 (emphasis added).) Ordinary sick leave, whether paid or unpaid, is considered Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 10 of 31 Page ID #:308 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 3. an occurrence unless it falls under an exception such as being used in conjunction with an approved medical leave. (UF 12.) Under the Attendance Policy, an employee may be counseled or discipline for excessive tardiness or absence, which is defined as follows:  3 occurrences of absence and/or tardiness in a 30-day period.  5 occurrences of absence and/or tardiness in a 90-day period.  11 or more days of absence in any twelve-month period, regardless of the number of occurrences. (UF 13.) Because an “occurrence” can consist of consecutive days, an unexcused absence of 3 consecutive days, for example, in a 30-day period would count only as one occurrence, not three separate occurrences. (UF 14.) C. Enforcement of Attendance Policy at Riverside Call Center As set forth above, Amtrak’s national Attendance Policy had been in effect since 1999. (UF 7.) However, until the spring of 2013, the policy had not been enforced consistently at the Riverside Call Center. (UF 15.) On April 9, 2013, Kevin McClafferty, then-Director of the Riverside Call Center, met with employees and provided them with a memorandum, stating that “effective May 1, 2013 both contact centers [Riverside and Philadelphia] will begin counting the use of paid sick time as an occurrence.” (UF 16.) Several employees, including Plaintiff and other supervisors, voiced complaints to various members of management, about the application of that particular provision in the Attendance Policy. (UF 17.) The topic was also a hotly debated issue between management and union. (UF 18.) D. June 2013 Counseling of Plaintiff for Belligerent Conduct In June 2013, while attending a presentation on FMLA/ADA at the Riverside Call Center, Sorensen asked the presenter (Denyse Nelson-Burney, an Amtrak attorney) about the Attendance Policy and whether paid sick leave counted as “an occurrence.” (UF 19.) Ms. Nelson-Burney attempted to answer Sorensen’s question, but Sorensen “refus[ed] to give the presenter an opportunity to finish what she was saying before he interrupted her.” (UF 20.) According to witnesses, Sorensen’s tone Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 11 of 31 Page ID #:309 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 4. toward Ms. Nelson-Burney was combative and rude. (UF 21.) Sorensen continued aggressively to make statements and to propose hypothetical scenarios until former Operations Manager Gerald Powell (“Powell”) and another supervisor, Luther Curtis, stepped in to attempt to persuade Plaintiff to calm down. (UF 22.) At one point, while Ms. Nelson-Burney attempted to answer Sorensen’s question, he “interjected; “Well, tell that to Kevin McClafferty. . . .” (UF 23.) Powell and Manager Rachel Dye (“Dye”) spoke with Sorensen after the meeting and counseled him about his rude conduct toward the attorney. (UF 24.) Powell informed Plaintiff that his “heated” conduct during the presentation and continuing to cut off the attorney when she tried to answer his question was inappropriate. (UF 25.) To others in the room, Sorensen did not appear to be satisfied with the attorney’s response to his question about leave (or would not accept the response), and continued to aggressively question the attorney even after she answered his question. (UF 26.) Powell (and Luther Curtis) believed Sorensen’s demeanor was “uncalled for” in the situation. (UF 27.) Neither Powell nor Dye had an issue with the content of Sorensen’s questions, but with the manner in which he treated the attorney. (UF 28.) Additionally, both Dye and Powell raised concerns that Sorensen had “become combative” with Powell and Curtis when both attempted to step in and calm Sorensen down. (UF 29.) During the meeting with Dye and Powell, Dye also counseled Sorensen about another incident in which Sorensen “displayed disrespect” toward Dye by sending an email to the Chief of Sales Distribution about an IT project without first discussing the situation with Dye. (UF 30.) Dye noted that Sorensen’s behavior was “unprofessional, disrespectful to me and the director.” (UF 31.) Dye sent Sorensen a memorandum on June 25, 2013, in which she directed him to comply with Amtrak’s policy regarding “The Standards of Excellence, Amtrak Values, Integrity,” by being polite, considerate and respectful to other team members, as well by working “as a team to provide effective leadership.” (UF 32.) The memorandum explained to Sorensen that “[f]ailure to follow these instructions will Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 12 of 31 Page ID #:310 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 5. result in appropriate correct or disciplinary action up to and including dismissal.” (UF 33.) E. December 16, 2013 Low Performance Evaluation and Performance Improvement Plan In Sorensen’s December 2013 Performance Evaluation, his supervisor Dye gave Sorensen an overall rating of 1 out of 4. (UF 34.) In the review, Dye referenced the June 2013 meeting with the Amtrak attorney, as well as another incident where Sorensen “decided to [take] an agent from another team off the phone, without the supervisor[’s] permission.” (UF 35.) This action was perceived as disrespectful by the other supervisor. (UF 36.) Sorensen admits that he took another supervisor’s customer service agent “off the phone” without that supervisor’s permission. (UF 37.)1 Amtrak’s practice is that employees that receive a 1 rating are automatically placed on a Performance Improvement Plan (“PIP”). (UF 39.) As a result of his 2013 review, Sorensen was given a PIP. (UF 40.) The PIP reflected the concerns regarding Sorensen’s lack of respect that were discussed in the 2013 Performance Evaluation. (UF 41.) The PIP listed improvement goals, including directing Sorensen to “[i]mmediately stop the disruptive behavior[.] Show respect and model Amtrak business behaviors to peers and fellow managers, both internal and external. Display the ability and self-control to recognize the value of every individual and treat him or her with dignity. . . .” (UF 42.) The PIP explained the expectations for its duration and also noted that “deterioration of your job performance (and/or behavior) after successfully completely this PIP may result in further corrective or disciplinary action up to and including termination without the issuance of another warning, performance improvement plan or probation.” (UF 43.) Amtrak provided Plaintiff an opportunity to submit a rebuttal statement to the 1 Indeed, several other supervisors complained to Dye about Sorensen engaging in his practice. (Dye Dep. 56:2-70:16) (describing 4-5 different instances where Dye counseled Sorensen after other supervisors complained that Sorensen took their agents “off the phones” without authorization). See also (McClafferty Dep. 48:11-23, 85:22-25) (describing concerns that Sorensen took other supervisors’ agents, as well as his own agents, off the phones for unauthorized projects and that Sorensen disappeared periodically). Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 13 of 31 Page ID #:311 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 6. 2013 Performance Evaluation and PIP. (UF 44.) In his rebuttal, with regard to the June 2013 meeting, Sorensen acknowledges that Powell told him to “Let the lady finish answering the question.” (UF 45.) In his two-page rebuttal, Sorensen did not allege, or even suggest, that his low performance rating was a result of retaliation for expressing a belief that Amtrak’s Attendance Policy was illegal. (UF 46.) In late 2013 or early 2014, Sorensen called the ethics hotline to complain about the 2013 Performance Evaluation and communicated with Employee Relations Officer Julia Costello. According to Ms. Costello, Plaintiff never mentioned the Attendance Policy during those calls. (UF 47.) Plaintiff also testified at deposition in this action that he received a low score on his 2013 evaluation because his conduct during the June 2013 presentation was viewed as being disrespectful. (UF 48.) F. Plaintiff’s September 2014 Final Warning On September 24, 2014, Plaintiff was issued a Final Warning for violating Amtrak Computer Security and Confidentiality Policies. (UF 49.) Plaintiff provided an agent that worked under him with access to Amtrak’s computer database to review and copy confidential information of other employees and sign them up for Amtrak’s annual Rideshare program. UF 50.) Plaintiff admitted to engaging in this conduct. (UF 51.) Individuals and teams could receive prizes for participating in the Rideshare program. (UF 52.) Sorensen directed an employee working under him to complete pledge forms for other employees, including some who were not even at work during that pledge drive and did not participate or seek to participate in the program. (UF 53.) Other managers and employees viewed Sorensen’s conduct as cheating. (UF 54.) The computer database Plaintiff allowed his subordinate to access was password- protected, and Plaintiff was not authorized to share his password with anyone else. (UF 55.) Plaintiff was also not allowed to share confidential information about other employees. (UF 56.) Consequently, Plaintiff received a Final Warning which stated “[d]ue to your recent behavior of allowing an ‘unauthorized’ employee access to confidential information of other Amtrak employees, you are hereby advised to refrain Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 14 of 31 Page ID #:312 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 7. from any conduct that would compromise the well-being of Amtrak and/or its employees. . . . This is a Final Warning and failure to follow these instructions will result in the appropriate corrective or disciplinary action, up to an including dismissal being taken.” (UF 57.) Ms. Crozier decided to classify this disciplinary action as a Final Warning “[b]ecause of the severity of the violation of allowing unauthorized employees access to confidential information and the impact it could have on Amtrak as a whole.” (UF 58.) G. Plaintiff Receives Additional Counseling For Unauthorized Computer Access Despite receiving the Final Warning on September 24, 2014, Sorensen again violated Amtrak policy less than two weeks later, on October 6, 2014 by permitting a customer support agent to use a restricted access device without authorization. (UF 59.) Specifically, Sorensen provided an agent with access to an Electronic Mobile Device (“EMD”), “the handheld device used by Conductors to collect tickets onboard, which has restricted access and rights and is to be used only by authorized individuals.” (UF 59.) Consequently, Sorensen was placed on another PIP on November 19, 2014. (UF 60.) That PIP noted that “failure to demonstrate immediate and sustained improvement will lead to disciplinary action, up to and including termination.” (UF 61.) H. Plaintiff Accesses Amtrak’s Computer Database To Override The Maximum Daily Vacation Allowance And Approve Vacation For A Number of Employees Without Authorization The Amtrak customer support departments, including the one at Riverside, have policies establishing the maximum number of employees that can be granted vacation on a particular day in order to ensure minimum staffing to answer calls during peak and non-peak times. (UF 62.) Sorensen was aware of those requirements. (UF 63.) Nevertheless, on November 18, 2015, it was discovered that Plaintiff, without authorization, improperly accessed the Riverside Call Center’s electronic “Work Force Management” program and overrode the system and approved vacation for several Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 15 of 31 Page ID #:313 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 8. employees in his department. (UF 64.) Sorensen did not have the authority to access the electronic “Work Force Management” system in order to make those changes—in fact, his manager, Ms. Crozier testified she also did not have such authority. (UF 65- 66.) Amtrak learned of the override after the fact, when it was discovered that the Call Center would not have enough employees at work during the holiday season. (UF 67.) Consequently, Amtrak was required to offer overtime to employees to ensure sufficient staffing as a result of Sorensen’s unauthorized conduct, resulting in financial loss for Amtrak. (UF 68.) In his deposition, Sorensen admitted to accessing the program and overriding the system in the manner alleged, which is also evidenced by his user name on printouts of the overrides. (UF 64.) Due to several recent incidents and policy violations by Sorensen, Amtrak made the decision to terminate his employment. (UF 69.) The principal reason was Sorensen’s overriding of eWFM to approve vacation days for employees in his department despite prior warnings and counseling regarding misuse of the computer systems. (UF 69.) On December 3, 2015, Operations Manager Rita Crozier met with Sorensen and presented him with a termination letter. (UF 70.) The termination letter explained that Sorensen was being terminated for failing to meet performance standards and requirements of the position of Call Center Supervisor. (UF 71.) “The most serious incidents occurred on October 6, November 3, and November 9, 2015, when you accessed Work Force Management (E.W.F.M.) and overrode the system to approve time off for several employees within your department.” (UF 72.) I. Hearing Officer’s Decision Upholding Charges Against Sorensen After his termination, Sorensen sought to be placed in a non-supervisory position in Amtrak’s Call Center, to which Amtrak objected, given the nature of Mr. Sorensen’s conduct and breaches of trust that led to his termination. (UF 73.) On December 9, 2015, Amtrak directed Sorensen to appear for a Formal Investigation pursuant to the provisions of the CBA between Amtrak and TCU regarding Sorensen’s alleged violation of several Amtrak policies and procedures, including violation of Amtrak’s Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 16 of 31 Page ID #:314 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 9. (1) Information Technology Security and Usage policy; (2) Ethical Conduct and Conflict of Interest policy; (3) Standards of Excellence policy related to “Teamwork”; and (4) Standards of Excellence policy related to “Trust and Honesty.” (UF 74.) That hearing was held on January 19, 2016 before Hearing Officer Shemika Sanford. (UF 75.) Plaintiff, who was present at the hearing and was represented by TCU representatives, had the opportunity to cross-examine Amtrak’s witnesses and present evidence in his defense. (UF 76.) On January 27, 2016, Hearing Officer Sanford issued her decision finding that Amtrak’s charges against Sorensen were proven. (UF 77.) Hearing Officer Sanford found evidence that Sorensen “overrode the EWFM program thresholds and manually passed day off requests for the aforementioned employees without authorization – thus resulting in the company having to call overtime to cover shifts.” (UF 78.) She further found “[b]ased on the evidence presented, you made these manual overrides without approval and without sending an email as required by the staffing guidelines. Therefore, based on the foregoing findings and the hearing record as a whole, the charges brought against you were proven.” (UF 79.) (Emphasis in original.) Sorensen appealed the Hearing Officer’s decision, and the decision was upheld. (UF 80.) III. LEGAL STANDARD Summary judgment is appropriate if the evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is not a disfavored procedural shortcut, but rather is seen as an integral part of the Federal Rules of Civil Procedure, which are designed “to secure the just, speedy, and inexpensive determination of every action.” Id. at 327. A claim has no merit if a defendant demonstrates that one or more of the elements of a cause of action cannot be established. Id. at 322-23. IV. LEGAL ARGUMENT A. Plaintiff’s First, Second, Seventh and Eighth Causes of Action Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 17 of 31 Page ID #:315 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 10. Related to Purported Whistleblowing Activities All Fail as a Matter of Law. Plaintiff asserts whistleblower retaliation in violation of California Labor Code §§ 1102.5 and 1102.6 (Count I); the FEHA (Count II); (3) the ADA (Count VII); FMLA (Count VIII). To maintain a cause of action of retaliation under any of the above state and/or federal laws, Plaintiff must demonstrate a prima facie case of retaliation, i.e., he must show a causal link between a protected activity and an adverse employment action, which he cannot do. Akers v. County of San Diego, 95 Cal. App. 4th 1441, 1453 (2002). Even if he could, he is unable to set forth substantial responsive evidence to rebut Amtrak’s legitimate, non-retaliatory reason for the adverse employment action-- namely, Sorensen’s repeated violation of company policies and unauthorized access and manipulation of Amtrak’s computer systems. Thus, all four of Sorensen’s retaliation claims fail as a matter of law. 1. Plaintiff Cannot Establish A Prima Facie of Retaliation. In all of his whistleblower retaliation counts, Sorensen alleges that Amtrak retaliated against him because he periodically complained to various supervisors and other employees at Amtrak regarding his belief that Amtrak’s Attendance Policy violated the California Labor Code and other state and federal statutes and regulations. During his deposition, Sorensen further alleged that certain of Amtrak’s practices also interfered with or “restricted” employees’ use of their FMLA leave. California Labor Code § 1102.5(b) is a whistleblower statute, which prohibits an employer from retaliating against an employee for disclosing information about a violation of state or federal law or regulation. Cal. Lab. Code § 1102.5(b). Plaintiff claims that he engaged in a protected activity under section 1102.5(b) when he expressed his opinion to various members of Amtrak’s management that he believed Amtrak’s Attendance Policy was illegal. See Comp. ¶¶ 13-54.2 2 California’s FEHA, as well as the federal ADA and the FMLA also provide causes of action for retaliation when an employee is subject to adverse action for complaining about discrimination and/or harassment prohibited by those statutes. Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 18 of 31 Page ID #:316 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 11. To establish a prima facie case for retaliation in any of those causes of action, Plaintiff must show (1) that he engaged in protected activity, (2) that he was thereafter subjected to an adverse employment action by his employer, and (3) that there was a causal link between the protected activity and the adverse employment action. Love v. Motion Industries, Inc., 309 F. Supp. 2d 1128, 1134 (N.D. Cal. 2004) (Section 1102.5(b)); Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005) (FEHA & ADA)3; Dudley v. Dep’t of Transp., 90 Cal. App. 4th 255, 261 (2001) (FMLA). a. Plaintiff Did Not Engage in Protected Activity. (1) No protected activity under § 1102.5 Under section 1102.5(b), the “protected activity” element has three components: a disclosure, based on reasonably based suspicions, of illegal activity. Johnson v. Johns Hopkins Univ. Applied Physics Lab, LLC, 2013 U.S. Dist. LEXIS 112097, *17 (S.D. Cal. Aug. 8, 2013). Plaintiff cannot establish that he possessed reasonably based suspicions of illegal activity. First, Sorensen testified that he never heard of any supervisor threatening an employee that he or she would be disciplined if they took sick leave in accordance with Amtrak’s Attendance Policy. (UF 81.) That testimony is supported by the testimony of other employees. (Deposition of Jerry Higa (“Higa Dep.) 54:22-55:5, 61:2-6.) Sorensen also admitted in his deposition that he knew that the California Labor Code provisions he believed Amtrak’s attendance policy violated exempted CBA- covered employees as well as individuals who obtained sick leave benefits through an insurance plan. Cal. Lab. Code §§ 233(b)(3)(B) & 245.5(a)(1). (UF 82.) Sorensen admitted that he knew that the customer support agents he supervised were CBA- covered and that their sick leave was provided through an insurance plan. (UF 83.) Furthermore, an “occurrence” is not subject to discipline in and of itself. (UF 84.) The plain text of the California Labor Code exempts CBA-covered employees and 3 The Ninth Circuit and California state courts apply the identical analysis to ADA and FEHA claims. Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 271 (9th Cir.1996). Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 19 of 31 Page ID #:317 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 12. employees who receive sick leave through an insurance plan – facts Plaintiff admits he was also fully aware of. Consequently, Plaintiff’s contention that Amtrak’s Attendance Policy violated the California Labor Code is objectively unreasonable. (2) No protected activity under FEHA or ADA For the same reasons as set forth above, Sorensen cannot establish a prima facie case under FEHA and/or the ADA, as he cannot show that he complained about unlawful practices under either statute. The FEHA and ADA are not general whistleblower statutes and do not apply to Sorensen’s belief that Amtrak’s attendance policy was unlawful. See e.g., Patten v. Grant Joint Union High School Dist., 134 Cal.App.4th 1378, 1388 (2005) (“the FEHA employment retaliation provision protects the disclosure of a specific legal violation (antidiscrimination laws; Gov’t. Code § 12940(h), while section 1102.5(b) protects the disclosure of violations of statutes, regulations or rules generally. Many of the statutes, regulations or rules covered by section 1102.5(b) do not rise to the fundamental public policy purposes of FEHA.”); Yanowitz, 36 Cal. 4th at 1042; see also 42 U.S.C. § 12203(a); Kimbrough v. Cincinnati Ass’n for Blind and Visually Impaired, 986 F.Supp.2d 904, 917 (S.D. Ohio 2013) (disagreement with internal leave policies, such as accrued sick time, does not constitute protected activity under the ADA). Moreover, such opposition must be both subjectively and objectively reasonable, when “measured against existing substantive law.” See Yanowitz, 36 Cal. 4th at 1046. As set forth above, Plaintiff’s contention that Amtrak’s Attendance Policy violated FEHA, ADA or any state or federal law was also subjectively and objectively unreasonable. (3) No protected activity under FMLA Likewise, Sorensen cannot establish a prima facie claim under the FMLA because he cannot establish that he complained about any unlawful practice under the Act. 29 C.F.R. § 825.220(a)(2). Plaintiff contends that he complained about two different restrictions Amtrak purportedly placed on its employees relating to FMLA usage. Plaintiff’s first complaint was that Amtrak only approved FMLA requests for a six (6) Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 20 of 31 Page ID #:318 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 13. month periods, a belief that is based entirely upon an FMLA approval letter Plaintiff’s fiancé Mary Wood (also an Amtrak employee) received which allegedly stated it was effective for only six months. (UF 85.) The second alleged complaint was Plaintiff’s subjective belief that it was illegal for supervisors to monitor their subordinates’ use of “intermittent” FMLA usage to ensure it was consistent with the FMLA leave they were approved to take. (UF 86.) As to his purported complaint that Amtrak only approved FMLA leave for six- months, Sorensen admits he did not learn about this supposed “limitation” until after his termination and he never made any complaint about it to any colleague or manager at Amtrak. (UF 87.) Thus, there is no protected activity. As to Plaintiff’s alleged complaint relating to supervisors monitoring employees’ FMLA usage to ensure that FMLA usage was consistent with what was approved, Sorensen testified that he only complained that it was not his job to monitor his employees’ FMLA usage and that he feared supervisors could potentially scrutinize FMLA usage inconsistently. Sorensen, however, admits he was unaware of any supervisor monitoring FMLA usage inconsistently—only that he feared it could happen “in the future.” (UF 88.) Sorensen’s alleged FMLA related complaints are insufficient to constitute “protected activity.” Dinslage, 5 Cal. App. 5th at 381 (disapproval is insufficient to constitute “protected activity”); Mokler, 157 Cal. App. 4th at 138 (same). Sorensen’s belief of illegality is also objectively unreasonable. Sorensen testified that he believes “any restrictions on family medical leave” is illegal. (UF 89.) Moreover, Sorensen was unaware of any allegedly illegal, inconsistent monitoring of FMLA usage; rather, he was speculating about a potentiality. (UF 92.) Therefore, Sorensen cannot establish he engaged in any protected activity under the FMLA. b. Plaintiff Cannot Establish a Causal Connection Between Any Protected Activity and Any Adverse Employment Action. While close proximity may be evidence of retaliatory motive, a three- to four-year Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 21 of 31 Page ID #:319 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 14. span of time does not constitute “close” proximity, as a matter of law. See, e.g., Loggins v. Kaiser Permanente Int’l, 151 Cal. App. 4th 1102, 1110 n.6 (2007) (nine- month hiatus between protected conduct and adverse employment action does not qualify as a “relatively short time,” particularly “when the protected conduct is first followed by ‘non-adverse’ actions before a later adverse action occurs.”); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (“A nearly 18-month lapse between protected activity and an adverse employment action is simply too long, by itself, to give rise to an inference of causation.”). Here, Sorensen cannot demonstrate a causal connection between any alleged protected activity and his termination of employment. Sorensen alleges that he first raised a concern about Amtrak’s Attendance Policy in January of 2011, complaining that it was unlawful for Amtrak to count paid sick time as an “occurrence.” (UF 90.) However, he was not terminated until December 3, 2015 (UF 1) and did not receive the poor evaluation he claims was unwarranted until December of 2013 (UF 34). Further, Sorensen has failed to provide any evidence demonstrating that raising his concerns caused any discipline, including termination. See Chen v. County of Orange, 96 Cal. App. 4th 926, 931, 948-49 (2002). Indeed, Plaintiff admits throughout his deposition that he has no evidence that he was retaliated against after making complaints during the period of January 2011 to his termination in December 2015, about either sick leave, or about FMLA. With regard to sick leave, Sorensen acknowledges that he complained about the Attendance Policy as early as 2011 and has no evidence of retaliation after such complaints. (UF 91.) With regard to FMLA leave, Sorensen notes that he raised concerns about potential inconsistent application of FMLA “in the future” and acknowledges that he suffered no retaliation as a result. (UF 92.) Sorensen also contends that he raised concerns about employees’ FMLA leave, but he concedes that he has no evidence of retaliation as a result of those complaints. (UF 93.) As such, Plaintiff cannot establish a causal link between the alleged protected activity and the adverse employment action. Consequently, he cannot establish a prima Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 22 of 31 Page ID #:320 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 15. facie case under Section 1102.5(b), FEHA, ADA or FMLA. 2. Amtrak Had a Legitimate Non-Retaliatory Reason for Plaintiff’s Termination. Even if a plaintiff establishes a prima facie case of retaliation based on Section 1102.5(b), FEHA, ADA or FMLA, the employer may rebut the resulting presumption of by articulating a legitimate, non-retaliatory reason for the adverse employment action. Akers, 95 Cal. App. 4th at 1453. Even if Sorensen could establish a prima facie case of retaliation, Amtrak had legitimate, non-retaliatory reasons for disciplining and ultimately terminating Sorensen, namely his repeated violations corporate policies, including security policies related to computer access. As set forth in detail above in Section II, Sorensen was counseled and disciplined for those violations on multiple occasions. He received several PIPs and Final Warnings for various egregious policy violations, related to computer security, confidential employee information and inappropriate conduct toward other employees. Rather than correcting his behavior, Sorensen flouted the rules over and over again. Ultimately Sorensen was fired for those repeated violations. 3. Plaintiff Cannot Establish That His Termination Was Pretextual. Since Amtrak has provided legitimate, non-discriminatory reasons for its decision to terminate Plaintiff’s employment, any presumption of retaliation “drops out of the picture,” leaving Plaintiff with the ultimate burden of establishing that Amtrak intentionally retaliated against him. Akers, 95 Cal. App. 4th at 1453; Cuevas v. Skywest Airlines, 17 F. Supp. 3d 956, 966 (N.D. Cal. 2014). Plaintiff must “offer substantial evidence” that Amtrak’s “stated nondiscriminatory reason for the adverse action was untrue or pretextual . . . such that a reasonable trier of fact could conclude that [Amtrak] engaged in intentional discrimination.” Hersant v. Dep’t of Soc. Serv., 57 Cal. App. 4th 997, 1004-1005 (1997). A plaintiff must produce specific, substantial, competent and admissible facts showing a triable issue. Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 849 (2001). Issues of fact cannot be created by speculation or Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 23 of 31 Page ID #:321 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 16. conjecture. Horn v. Cushman & Wakefield Western, Inc., 72 Cal. App. 4th 798, 807 (1999). There is no credible evidence that Amtrak’s asserted reasons for disciplining and then terminating Plaintiff were a pretext for retaliation. Indeed, a hearing officer found that Amtrak proved its charges that Plaintiff was terminated for violating various Amtrak policies.4 (UF 79-80.) Further, Plaintiff has a prior record of violating the same policies, and even admits to accessing internal computer programs and allowing access to confidential employee information. Indeed, as set forth in detail in Section II, Plaintiff acknowledges that he lacks evidence of any causal connection between his various complaints and any adverse employment actions.5 Moreover, Plaintiff concedes that many other employees also complained about Amtrak’s Attendance Policy and were not disciplined or terminated for those complaints. (UF 17.) Further, Amtrak has standard policies and procedures for working with employees, both union and non-union, who raise concerns about company policies, and it followed those policies and procedures here. (UF 94.) The evidence shows that Sorensen was disciplined and ultimately terminated for repeated and flagrant violations of company policies and unauthorized access and manipulation of Amtrak’s computer systems. Additionally, even if Sorensen’s concern that Amtrak’s attendance policy was illegal were legitimate, there are reasonable limits to what an employee can do to sound the alarm with regard to a potentially unlawful 4 There is authority that the Hearing Officer’s determination has preclusive effect, barring Plaintiff’s claims for retaliation and for wrongful termination. See, e.g., Brock v. Lucky Stores, Inc., 23 F. App’x 709, 712 (9th Cir. 2001) (citing Kelly v. Vons Companies, Inc., 67 Cal. App. 4th 1329 (1998)); Wade v. Ports Am. Mgmt. Corp., 218 Cal. App. 4th 648, 656 (2013); Int’l Bhd. of Teamsters v. Allegiant Air, LLC, 788 F.3d 1080, 1089 (9th Cir. 2015) (“Board determinations have preclusive effect when made in proceedings that satisfy due process and when the findings were supported by substantial evidence.”). 5 Even if Sorensen were able to show temporal proximity in connection with his prima facie case, which Amtrak contends he cannot, such does not satisfy the employee’s secondary burden to show that the employer’s articulated reason was untrue and pretextual. Loggins v. Kaiser Permanente Int’l, 151 Cal. App. 4th 1102, 1112-13 (2007). Moreover, based on Plaintiff’s own testimony, as well as the testimony of his medical provider, even Plaintiff does not believe that he was disciplined and then terminated in retaliation for complaining about the Attendance Policy. (Sorensen Dep., Ex. 18.) Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 24 of 31 Page ID #:322 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 17. policy. The manner of the opposition must not unreasonably interfere with the employer’s business operations. If employees go too far in their “opposition,” they can be discharged for misconduct and insubordination. See Smith v. Singer Co., 650 F.2d 214, 217 (9th Cir. 1981) (holding that termination of personnel director who disagreed with company employment policies was neither discriminatory nor retaliatory against the exercise of protected “opposition” activity; director could be discharged because he was no longer capable of performing his job by representing the company and enforcing its policies); Cuevas, 17 F. Supp. 3d at 966 (rejecting plaintiff’s claim of retaliation in violation of the California Labor Code and finding instead that “SkyWest offers substantial evidence that it suspended and fired Cuevas for repeated instances of insubordination”). Here, the undisputed evidence demonstrates that Sorensen’s behavior during the June 2013 meeting of berating the presenter and others went beyond raising concerns about a potentially unlawful policy. Matima v. Celli, 228 F3d 68, 81 (2d Cir. 2000) (holding that discharge was not retaliation where plaintiff “repeatedly confronted and antagonized his supervisors in inappropriate contexts in a way that was designed to force the company’s hand or make it pay a price in reduced productivity, focus and morale”). Even if Sorensen had been terminated for his behavior during the June 2013 meeting and his subsequent meeting with his supervisors, as well, which he was not, such termination would have been legally proper. Consequently, for the reasons set forth above, Amtrak is entitled to summary judgment on all of Sorensen’s retaliation claims (the First, Second, Seventh and Eighth Causes of Action). B. Sorensen’s Claim for FEHA Associational Discrimination Fails. “FEHA provides a cause of action for associational disability discrimination, although it is a seldom-litigated cause of action.” Castro-Ramirez v. Dependable Highway Express, Inc., 2 Cal. App. 5th 1028, 1036 (2016). “[W]hen FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person’s Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 25 of 31 Page ID #:323 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 18. association with another who has a disability.” Id. Sorensen’s claim for associational discrimination under FEHA fails for several reasons. Sorensen appears to be alleging associational disability discrimination, although his complaint is not clear. Regardless of which protected class Plaintiff alleges he is associated with, he cannot establish a prima facie case of associational discrimination. Further, even if he could establish a prima facie case, Amtrak has articulated legitimate non-discriminatory reasons for Plaintiff’s discipline and ultimate termination, and Sorensen cannot establish pretext. A prima facie case of disability discrimination under FEHA requires a showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because of the disability. Castro-Ramirez, 2 Cal. App. 5th at 1037. In the associational discrimination context, the “disability” from which the plaintiff suffers is his or her association with a disabled person. Id. As to the third element of the prima facie case, the disability must be a substantial factor motivating the employer’s adverse employment action. Id. Sorensen has failed to identify a single individual with whom he was associated who was disabled or perceived to be disabled. Sorensen alleges that “Amtrak associated Sorensen with his [subordinates] who applied for medical leave.” (Compl., ¶ 60.)6 However, Sorensen has proffered no specific evidence that he suffered any adverse employment action because of any association with those employees or that any of them suffered from a disability or that Amtrak was aware of such alleged disability. Indeed, Plaintiff admitted in his deposition he did not believe that anyone at Amtrak associated him with particular individuals who were disabled and/or who filed for FMLA or medical leave. (UF 95.) To the extent that Plaintiff is relying on general 6 Certain of those employees dispute Plaintiff’s contention that he was associated with them and/or advocated on their behalf. For example, Jerry Higa disputes that he ever spoke with Sorensen about any concerns regarding sick leave or FMLA leave. (Higa Dep. 33:2-15, 34:13-17, 54:22-55:5.) Similarly, Porter testified that Sorensen never advocated on his behalf. (Porter Dep. 60:21-62:14.) Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 26 of 31 Page ID #:324 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 19. advocacy, courts have held that such advocacy does not constitute a sufficiently close association for associational disability discrimination liability. See Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 215-16 (4th Cir.2002) (dismissing ADA associational discrimination claim as not-cognizable where doctor plaintiff alleged hospital discriminated against her because of her advocacy on behalf of disabled patients); Oliveras-Sifre v. Puerto Rico Dep’t of Health, 214 F.3d 23, 26 (1st Cir.2000) (dismissing ADA associational discrimination claim where plaintiffs allege they were “punished for their advocacy on behalf of individuals with AIDS”); Tyson v. Access Services, 158 F. Supp. 3d 309, 314-15 (E.D. Pa. 2016) (advocacy on behalf of disabled patients did not sufficient association for ADA protection). As such, Plaintiff has failed to establish a prima facie case of associational discrimination. Furthermore, as set forth above, even if Sorensen could establish a prima facie claim of associational discrimination, Amtrak has provided legitimate non- discriminatory reasons for his discipline and ultimate termination from employment and Sorensen cannot establish pretext. Consequently, Plaintiff’s Third Cause of Action fails as a matter of law. C. Plaintiff’s Failure To Prevent Claim Fails. Government Code section 12940(k) provides that it is unlawful “[f]or an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” An employer is not liable to an employee for failing to take reasonable steps to prevent discrimination or harassment unless the employee establishes that she was actually the victim of unlawful discrimination or harassment. Trujillo v. N. County Transit Dist., 63 Cal. App. 4th 280, 284 (1998). As set forth above, in Section IV.B., Plaintiff was not subjected to unlawful discrimination as a matter of law.7 Because Sorensen cannot establish his underlying claims under FEHA, 7 Plaintiff’s Complaint does not contain a separate claim for harassment so his failure to prevent claim cannot be predicated on harassment. Moreover, Plaintiff cannot move the target at the summary judgment stage to assert new claims. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Even if Plaintiff had alleged a claim for harassment, harassment arises from a Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 27 of 31 Page ID #:325 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 20. as set forth above, his “failure to prevent” claim also fails as a matter of law. See, e.g., Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, 1316 (2015); Kelley v. Conco Companies, 196 Cal. App. 4th 191, 208 (2011). Moreover, Sorensen’s claim fails because Amtrak took appropriate steps to prevent discrimination and/or harassment from occurring. See, e.g., Cal. Fair Employment & Hsg. Comm’n v. Gemini Aluminum Corp., 122 Cal. App. 4th 1004, 1025 (2004) (explaining that reasonable steps necessary to prevent discrimination and harassment from occurring may include the establishment and promulgation of antidiscrimination policies, and the implementation of effective procedures to handle complaints and grievances regarding discrimination). During his tenure at Amtrak, Sorensen received notice that Amtrak had a policy against retaliation and discrimination and a complaint mechanism to address such conduct. (UF 96.) Accordingly, the Fourth Cause of Action fails as a matter of law. D. Defendant Crozier Did Not Defame Sorensen As a Matter of Law. Plaintiff cannot sustain a claim for defamation against Defendant Crozier. To establish a claim for defamation, a plaintiff must prove (1) that a false and defamatory statement was made about him; (2) that such statement was an expression of fact and not an expression of opinion; (3) that such statement was published to a third party, who understood it to be defamatory; (4) that the statement tended directly to injure Plaintiff in his profession; and (5) that the statement was not privileged. Cal. Civ. Code workplace that is “permeated with discriminatory intimidation, ridicule, and insult.” Kelly-Zurian v. Wohl Shoe Co., 22 Cal. App. 4th 397, 409 (1994). For the claim to be actionable, Plaintiff must show that the harassment was “sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment.” Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 609 (1989) (internal quotations and citations omitted). He must not only establish that he perceived his work environment to be abusive, but also that a reasonable person in his position would have perceived it to be so. Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 284 (2006). Further, “personnel management actions such as hiring and firing, job or project assignments, office or work station assignments . . . and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management.” Jumaane v. City of Los Angeles, 241 Cal. App. 4th 1390, 1408 (2015) (citing Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 64-65 (1996) (internal quotations omitted)). Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 28 of 31 Page ID #:326 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 21. §§ 45, 46; Smith v. Maldonado, 72 Cal. App. 4th 637, 645-46 (1999). Within the context of a motion for summary judgment on a defamation claim, a plaintiff’s burden in identifying a triable issue of fact is a heavy one, as summary judgment is a particularly favored remedy in defamation cases. Couch v. San Juan Unified School District, 33 Cal.App.4th 1491, 1498 (1995). As the Court of Appeal recognized in Couch: Summary judgment is a favored remedy in defamation and invasion-of-privacy cases due to the chilling effect of protracted litigation on First Amendment rights. (Aisenson v. American Broadcasting Co. (1990) 220 Cal. App. 3d 146, 154 [269 Cal. Rptr. 379].) “[T]he courts impose more stringent burdens on one who opposes the motion and require a showing of high probability that the plaintiff will ultimately prevail in the case. In the absence of such showing, the courts are inclined to grant the motion and do not permit the case to proceed beyond the summary judgment stage." Id. at 1498-99 (citations omitted) Plaintiff’s claim fails because he fails to identify any specific statements allegedly made by Crozier, asserting generally that the statements “included express and implied accusations that Sorensen was a poor performer and that Sorensen had access an Amtrak system without authorization.” (Compl., ¶ 69.) Additionally, any such statements would constitute inadmissible hearsay as they are expressly based on what he claims some unidentified person told him and he has no competent evidence the statements were in fact made. (Sorensen Dep. 594:4-595:9.) Further, even if Crozier had made such statements, her statements are protected by managerial privilege as they related to the reasons for his separation of employment. “[A]n employer may publish to his employees the reasons for termination of another employee, the rationale for the publication being the employer’s economic interest in clarifying its policies and preventing future abuses of those policies.” Id.; Deaile v. General Tel. Co of California, 40 Cal. App. 3d 841, 849-50 (1974). Additionally, Plaintiff’s claim that Crozier stated that Sorensen was “a poor Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 29 of 31 Page ID #:327 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 22. performer” and “accessed an Amtrak system without authorization,”8 were truthful. (UF 34-38, 40-43, 57-61, 70-72, 97-98; Sorensen Dep. 527:2-20.) As such, Plaintiff cannot claim that such statements are false – a requirement for a defamation claim. Maldonado, 72 Cal. App. 4th at 646. Consequently, Sorensen’s defamation claim fails. E. Plaintiff’s Claim for Wrongful Termination in Violation of Public Policy Fails for the Same Reasons as His Statutory Claims. Plaintiff’s claim of “wrongful termination in violation of public policies” cites to the public policies expressed in his statutory retaliation and discrimination claims. However, an employee may not assert a wrongful termination in violation of public policy claim as a fallback to a statutory claim, where the underlying statutory claim itself fails. Stevenson v. Sup. Ct., 16 Cal. 4th 880, 904 (1997); Cuevas, 17 F. Supp. 3d at 967. As such, since Plaintiff’s statutory claims fail, so too does his claim for wrongful termination in violation of public policies. F. Plaintiff Is Not Entitled to Punitive Damages. Plaintiff is not entitled to punitive damages. To maintain a claim for punitive damages, a plaintiff must proffer clear and convincing evidence of malice, oppression, or fraud by a managing agent of Amtrak. Cal. Civ. Code § 3294(a) & (b); Basich v. Allstate Ins., 87 Cal. App. 4th 1112, 1118-21 (2001). The “clear and convincing” standard requires “that the evidence be so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.” Mock v. Mich. Millers Mut. Ins. Co., 4 Cal. App. 4th 306, 332-33 (1992). Managing agents” are “those employees who exercise substantial independent authority and judgment over decisions that ultimately determine corporate policy.” White v. 8 The evidence contradicts that suggestion. Jerry Higa attended the meeting during which Crozier announced that Sorensen was no longer with the company. According to Higa, Crozier provided absolutely no details about Sorensen’s departure, other than to inform his team that he was no longer working for Amtrak. (UF 97.) Other deposition testimony suggests that other employees were already aware that Sorensen had granted unauthorized leave before he was terminated. According to Keith Porter, the employees who received that unauthorized leave told other employees about it. Those employees then complained because that practice was unfair. (UF 98.) Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 30 of 31 Page ID #:328 LITTLER MENDELSON, P.C. 2050 Main Street Sui te 900 I rv ine, CA 92614 949.705.3000 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 23. Ultramar, Inc., 21 Cal. 4th 563, 566-67, 573, 577 (1999). “Corporate policy” has been interpreted as “the general principles which guide a corporation, or rules intended to be followed consistently over time in corporate operations.” Cruz v. HomeBase, 83 Cal. App. 4th 160, 167 (2000). None of the Amtrak employees against whom Plaintiff has raised complaints, including Defendant Crozier, are officers, directors, or managing agents of Amtrak. (UF 99-102.) No one engaged in oppression, fraud, or malice. As such, Plaintiff is not entitled to punitive damages. V. CONCLUSION For all of the foregoing reasons, Defendants National Railroad Passenger Corporation dba Amtrak and Rita Crozier respectfully request that the Court grant summary judgment or, in the alternative, summary adjudication in favor of Defendants and against Plaintiff Jamison Sorensen. Dated: May 22, 2017 /s/ Michael A. Gregg MICHAEL A. GREGG SAMI HASAN LITTLER MENDELSON, P.C. Attorneys for Defendants NATIONAL RAILROAD PASSENGER CORPORATION DBA AMTRAK AND RITA CROZIER Firmwide:147548954.15 090621.1017 Case 5:16-cv-01343-AB-JPR Document 27-1 Filed 05/22/17 Page 31 of 31 Page ID #:329