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Gregory Panka v. Tin

January 30, 2012


The opinion of the court was delivered by: Christina A. Snyder United States District Judge



On June 30, 2010, plaintiff Gregory Panka ("plaintiff") filed the instant action in Los Angeles County Superior Court against TIN, Inc. d/b/a Temple-Inland ("TIN" or "defendant"), John Hitt, and Does 1--50, alleging three claims for relief: (1) tortious retaliation and termination in violation of public policy embodied in Cal Lab. Code § 226 and §§ 6310--6312; (2) unlawful retaliation in violation of the Fair Employment and Housing Act ("FEHA"), Cal. Govt. Code § 12940(h); and (3) Intentional Infliction of Emotional Distress ("IIED"). On January 28, 2011, the Los Angeles County Superior Court sustained Hitt's demurrer without leave to amend. Following that ruling, TIN timely removed to this Court on the basis of diversity jurisdiction. See Dkt. No. 1.

On December 30, 2011, defendant filed a motion for summary judgment. Plaintiff filed his opposition on January 9, 2012, and defendant filed its reply on January 16, 2012. Defendant's motion is currently before the Court.


In 2004, plaintiff was hired by TIN, a corrugated box manufacturer, to work as a maintenance mechanic at its Bell, California facility ("Bell facility"). Declaration of Bob Renaud ("Renaud Decl.") ¶¶ 2--3. Because the Bell facility houses heavy-duty industrial machinery, TIN implemented a strict "Lockout/Safeguard" policy to protect its employees. The "Lockout" policy requires that maintenance employees "[n]ever attempt repairs or non-operating adjustments to the machine without shutting down and locking out the machine." Id. ¶ 5, Exh. B. Specifically, maintenance employees must place a padlock on the machine's main energy switch before beginning maintenance work to ensure that the machine is in a "zero energy state" and remains that way until the repair work is done. Id. ¶ 6, Exh. B. Once repairs are complete, the employee who placed the padlock on the machine must personally remove the lock. Id. ¶ 7, Exh. B. The "Safeguard" policy, by contrast, applies to production employees performing minor tool changes or troubleshooting activities and seeks to achieve an "intermediate energy state" through a keyed switch in the machine's electrical control circuit. Id. ¶ 8, Exh. D. In 2004, when plaintiff was hired, the Lockout policy generally provided a warning for an employee's first violation. Declaration of James R. Moss, Jr. ("Moss Decl.") ¶ 5. In 2006, however, TIN revised its policy to reflect that any employee found in violation of the policy is subject to immediate termination. Id., Exh. A.

On December 5, 2008, plaintiff determined to repair a Pre-Feeder EO-68 machine to remove and replace a broken roller. Moss Decl. ¶ 3, Exh. B (Deposition of Gregory Panka ("Panka Depo.")) at 279:1--280:16. The EO-68 machine is located directly beneath a 3,000-pound elevator. Plaintiff utilized the Safeguard procedure by inserting a gravity pin but failed to apply a padlock to the main energy panel as required by the Lockout policy. Id. at 63:14--64:2; 89:1--90:8. Plant manager Scott Vincent observed plaintiff's failure to use the Lockout procedure and suspended him pending investigation. Id.; Declaration of Scott Vincent ("Vincent Decl.") ¶ 7. On December 10, 2008, plaintiff submitted a written account to Human Resource and Safety Manager Bob Renaud acknowledging that he did not use a padlock as required by the Lockout policy because he did not think it was necessary . Moss Decl. ¶ 6, Exh. E. TIN terminated plaintiff's employment two days later on December 12, 2008. Renaud Decl. ¶ 14; Vincent Decl. ¶ 13.

On November 6, 2009, plaintiff filed a complaint with the Department of Fair Employment and Housing ("DFEH") alleging that he was wrongfully terminated because he (1) filed a wage and hour lawsuit in May 2008, and (2) offered to provide assistance to a co-worker regarding a sexual harassment complaint. The DFEH issued plaintiff a right to sue letter and the instant action followed.


Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each claim upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed. R. Civ. P. 56(c), (e). The nonmoving party must not simply rely on the pleadings and must do more than make "conclusory allegations [in] an affidavit." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for the moving party if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; see also Abromson v. Am. Pac. Corp., 114 F.3d 898, 902 (9th Cir. 1997).

In light of the facts presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 & n.3 (9th Cir. 1987). When deciding a motion for summary judgment, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted); Valley Nat'l Bank of Ariz. v. A.E. Rouse & Co., 121 F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving party is proper when a rational trier of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587.


A. First Claim for Retaliatory Termination in Violation ...

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