(San Mateo County Super. Ct. No. 494692) Trial Court: Superior Court of San Mateo Trial Judge: Honorable Joseph C. Scott
The opinion of the court was delivered by: Banke, J.
CERTIFIED FOR PUBLICATION
Real party in interest Timothy Joyce has sued petitioner Life Technologies Corporation (LTC) for wrongful termination, claiming, among other things, that he was discriminated against on the basis of his age and retaliated against because he complained about such discrimination. Joyce successfully moved to compel further answers to special interrogatories seeking detailed information about other employees/former employees. LTC seeks writ relief, contending the information ordered disclosed is irrelevant, unlikely to lead to admissible evidence and implicates significant privacy rights of the third party employees/former employees. It also contends the trial court failed to provide adequate procedural protections to the third parties before their private information is disclosed and failed to provide adequate protections for any such information once it is disclosed.
We conclude the trial court did not adequately consider, or provide procedural protections for, the substantial privacy interests of the third party employees/former employees. Accordingly, we will issue a peremptory writ directing the court to vacate its order compelling further answers to the challenged interrogatories and reconsider Joyce's motion in light of our opinion.
Given the procedural posture of the case, our background recitation is largely derived from the allegations of Joyce's operative (first amended) complaint. We recognize LTC disputes all of Joyce's allegations of discrimination and retaliation.
Joyce is a patent attorney. In May 2007, he was hired by Applied Biosystems, Inc., then a wholly owned subsidiary of Applera Corporation, to manage the Chemistry Patent Group within the Intellectual Property Legal Department. He drafted and filed patent applications and also managed the Group. In February 2008, he was promoted to Director of the Molecular Biology & Chemistry Group, and received an increase in compensation.
In May 2008, a planned merger between Applera and Invitrogen Corporation was announced. After the merger there would be an " 'excess capacity' of employees." Therefore, a "certain amount of employees" of Applied Biosystems would be let go over a two-year period.
In June 2008, Applera and Invitrogen entered into a "Merger Agreement," part of which included a "Special Severance Plan," which would apply to employees laid off because of and within two years of the merger. Employees who voluntarily resigned, died or became disabled, were terminated for cause or as a result of a sale or transfer of a business group, would be ineligible for a severance package.
Around this time, Joyce consulted recruiters about future job opportunities. He was told Invitrogen had a pattern of acquiring companies, and then ridding itself of older employees and replacing them with younger new hires. Thereafter (Joyce does not allege when), he was told by his supervisor, Jeff Frazier, to "manage out" two over-40 female employees by "documenting them," i.e., by negative performance reviews. Joyce refused to do so, "preferring instead to manage in a positive fashion."
In September and October 2008, the Special Severance Plan was formally announced and publicized. Employees "were promised that if they stayed focused and working in their jobs and did not look for another job, take another job, or take the time to job hunt in lieu of performing their job duties, the company would provide the benefits of the 'Special Severance Plan' . . . in order to ease the 'financial impact on those who would be involuntarily terminated following the [merger/integration]' while '[helping] to alleviate both the negative effects [of the merger] on productivity due to the uncertainty during this 2 year transition period and the potential for economic hardship of affected employees.' " Joyce "accepted this offer and did not seek out new employment at this time, instead staying focused on his job as requested."
During this period of time, Joyce "noticed that he was being excluded from various opportunities that could have an impact on his selection for a position with the new company while younger employees were allowed these opportunities." He was also told by another employee that Frazier told her to warn Joyce "he should 'get ready to be documented.' " This same employee later told him she heard he was on a " 'hit list' for termination where performance issues would be fabricated and his work life made generally miserable in the hopes [he] would either voluntarily quit or 'documented cause' would be established for his termination, thereby justifying the denial of a severance package." He also heard the same thing from other directors and staff, and that the same strategy would be taken with two other over-40 employees, including one of the two women Frazier had asked him to "manage out." Joyce then went online to the U.S. Patent and Trademark Office Web site and observed almost all of the lawyers in the Invitrogen legal department had high registration numbers, "indicating that most were newly-minted attorneys, much younger than [he]."
At the end of September, Joyce met with Frazier and stated concern about his potential termination "due to his age and being cheated out of his severance." Frazier "never denied what was occurring," and indicated he did not agree with decisions being made by Invitrogen's general counsel, but "there was nothing he could do."
In early October 2008, Joyce saw a copy of the new company's "IP legal department organization chart," and also saw his name on the layoff list on the chart. The list "appeared to confirm that many of those being laid off were over 40." Joyce spoke with Frazier about the chart and the "three people being 'managed out,' all of whom were over 40." Frazier did not deny there was such a document and told Joyce his concerns about age discrimination and being let go "were not going to help [him]." In late October, Joyce met with Frazier and the HR Senior Manager, Wendy Van Bronkhorst, and expressed his concern about being let go. Frazier and Van Bronkhorst "fraudulently" told him there would be a position for him with the new company.
As the preparation for the merger continued, Joyce was "systematically stripped of duties and assigned menial tasks." He became the object of ridicule, and was eventually "demoted to a non-management position, in contrast to similarly situated younger employees." He also was subject to a litany of unreasonable demands by Frazier and, in turn, increasing "documentation," again in contrast to "other similarly situated younger employees." In addition, he was "forced" to dig up information about another of the over-40 employees on the layoff list to support a termination for cause "to avoid paying her a severance package."
The merger of Invitrogen and Applera took place on November 21, 2008, resulting in the creation of LTC.
On November 26, 2008, Joyce complained in writing to Van Bronkhorst that he was being subjected to age discrimination and also retaliation for his earlier informal complaints. Two days later, Joyce met with Van Bronkhorst, who denied any discrimination and said no investigation would be done. She also said there would be several rounds of layoffs, and "confirmed her understanding of Invitrogen's tendency to hire younger workers." The first round of layoffs occurred on or about December 10, 2008. Two of the three employees laid off were over the age of 40.*fn1
In January 2009, the new organizational chart was made public, and Joyce did not have a position on it. His prior duties were reassigned to younger employees, and he was "effectively . . . demoted."
The following month, Joyce was put on a "performance improvement plan," the "last step in the plan to 'manage [him] out' " and "ostensibly provide grounds" to terminate him for cause and deny him a severance package. The asserted shortcomings in his performance were "petty, false and pretextual." Joyce wrote to the Director of Employee Relations, Rosine Lawson, and asked for a full-fledged investigation into his age discrimination complaint.
On February 12, 2009, Joyce filed a complaint of age discrimination and retaliation with the Equal Employment Opportunity Commission (EEOC). On February 13, he met with Lawson about his internal ...