The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER RE: PLAINTIFF'S CALIFORNIA LABOR CODE SECTION 1102.5(c) CLAIM
This is an employment discrimination case brought by Plaintiff Hossein Zeinali against his former employer Defendant Raytheon Company. Zeinali alleges that Raytheon failed to promote him, and ultimately terminated his employment, because he is Iranian. In addition to allegations of national origin discrimination, Zeinali claims Raytheon wrongfully terminated his employment in violation of California Labor Code section 1102.5(c), which "protect[s] employees who refuse to act at the direction of their employer or refuse to participate in activities of an employer that would result in a violation of law." Act of Sep. 22, 2003, ch. 484, § 1, 2003 Cal. Legis. Serv. 484. Raytheon has moved for summary judgment on this claim. The Ninth Circuit indicated upon remand that the issue is properly before this Court.*fn1 See Zeinali v. Raytheon Co., 2011 U.S. App. LEXIS 7023, 1-2 (9th Cir. 2011) (internal citations omitted) ("The parties agree that the district court analyzed Zeinali's California Labor Code § 1102.5 claim under subsection (b) rather than subsection (c) as is alleged in the Complaint. We vacate and remand this cause of action so that the district court may analyze it under the relevant subsection."). The parties represent that the record is complete and no further briefing is necessary. Accordingly, the Court rules as follows.
The following facts are not reasonably in dispute. During the summer of 2006, Zeinali was employed by Raytheon as a Cost Account Manager ("CAM"), tasked with overseeing the budget of the Navigation System Team ("NST"), a component of the Ship Control System Team on the Zumwalt Destroyer Program for the Department of Defense. In August 2006, Zeinali became aware of a $1.5 million reduction in the NST's budget, which had occurred without his knowledge. Zeinali and his team leader inquired about the budget change with a representative of the finance department, who advised that he had been instructed to remove the money from the NST budget by his superiors. Zeinali complained that the money should not have been deducted without Zeinali himself preparing a Budget Change Request ("BCR"). Zeinali believed the money had been deducted from the NST budget illegally and that he might go to jail. Zeinali voiced these concerns to his supervisors, some of whom agreed that the failure to process a BCR was a violation of Raytheon's internal accounting policies.
Approximately one month later, the $1.5 million was restored to the NST budget, without Zeinali personally preparing a BCR. Zeinali once again voiced concerns about the budget changes to his supervisors. Subsequently, Zeinali requested and was granted a transfer out of his position as a CAM into a different engineering position. Shortly thereafter, Zeinali received notice that his application for a security clearance had been denied and Raytheon terminated his employment. Zeinali claims that Raytheon terminated him in retaliation for his complaints regarding the NST budget manipulation and his accusations that the company violated the law. California Labor Code section 1102.5(c) prohibits retaliatory action against an employee by an employer in such circumstances.
Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The Court may not weigh the evidence and must view the evidence in the light most favorable to the nonmoving party. Id. at 255. The Court's inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
A party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). However, on an issue for which its opponents will have the burden of proof at trial, the moving party can prevail merely by "pointing out . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If the moving party meets its initial burden, the opposing party must "set out specific facts showing a genuine issue for trial" to defeat the motion. Fed. R. Civ. P. 56(e)(2); Anderson, 477 U.S. at 256.
Raytheon moves for summary judgment as to Zeinali's whistleblower retaliation claim, arguing that he fails to establish as a matter of law that he engaged in protected activity. California Labor Code section 1102.5(c) provides: "An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation." Cal. Lab. Code § 1102.5(c). To establish a prima facie case for whistleblower retaliation under section 1102.5, "an employee 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 Indus., 309 F. Supp. 2d 1128, 1134 (N.D. Cal. 2004), citing Morgan v. Regents of University of California, 88 Cal. App. 4th 52, 69 (2000). It is undisputed that Zeinali suffered an adverse employment action based on his termination from employment at Raytheon.
Zeinali states that he "engaged in a protected activity when he refused to participate in Raytheon's violation of federal rules and regulations related to EVMS compliance."*fn2 Pl. Opp'n, 20. To support his assertion that he refused to participate in allegedly illegal activity, Zeinali offers only his own self-serving, contradictory, and completely muddled deposition testimony.*fn3
With respect to his participation, or lack thereof, in the budget manipulation, Zeinali testified as follows:
Q: Did anybody ever order you or require you to do anything that you thought was illegal or improper?
A: They -- no. I -- best of my knowledge, I don't -- I haven't seen anything.
And I wouldn't do it, even if somebody asked me to do anything illegal. Q: Did anybody ask you to do anything illegal or improper?