ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION [Re: Docket Nos. 79, 80]
Plaintiff William Lukov ("Plaintiff") brings this action for retaliatory termination against Defendant Schindler Elevator Corporation ("Defendant"). Presently before the court are the 20 parties' cross motions for summary judgment. For the reasons set forth below, Defendant's motion 21 for summary judgment is GRANTED, and Plaintiff's motion for summary adjudication is DENIED.
Plaintiff is an elevator mechanic who was employed by Defendant from April 2006 until his termination in 2009. Defendant is in the business of "constructing, modernizing, repairing, and 26 servicing elevators, escalators, and moving walks." Def. MSJ at 2, Dkt. No. 80; Lay Decl., ¶ 2. 27 Plaintiff first worked for Defendant from March 2000 to December 2002 as a temporary mechanic. 28 Several years later, in April 2006, Plaintiff was re-hired by Defendant as a "Quality Auditor" and 2 an on-call Superintendent. In 2007, Plaintiff became an "interim" Superintendent, but was 3 transferred to a service mechanic position in November 2007. 4
As a service mechanic, Plaintiff was assigned a route in the San Jose
region ("South Bay"),
and was required to service elevators, escalators, and dumbwaiters
of the customers on that route. 6
Lukov Dep. at 48:10-49:7. His job duties included servicing the equipment, taking trouble calls, 7 performing repairs, communicating with customers, ordering parts, conducting tests and 8 examinations of the equipment, identifying potential safety issues, and certifying that certain 9 standards are met. Pl. MSJ at 2, Dkt. No. 79. The Nordstrom store at Valley Fair ("Nordstrom") 10 was a customer on Plaintiff's service route.
The Elevator Unit of the California Division of Occupational Safety and Health ("DOSH") is the state regulatory agency responsible for monitoring and overseeing elevator safety, and is 13 currently managed by Debra Tudor. Koonin Decl., Ex. H. Elevators must be examined annually to 14 renew their operating permits. See Def. MSJ at 7. After examining an elevator, the DOSH 15 inspector prepares a "preliminary order," which is a list of tasks that must be completed by a 16 certain date to renew the elevator operating permit. Id. DOSH issues these preliminary orders to 17 the owner of the elevator. Id. Some of the tasks included on these preliminary orders must be 18 completed by the elevator company responsible for the elevator. Id. 19
On March 18, 2009, DOSH issued four "preliminary orders" to Nordstrom. Lukov Dep. at 56:16-57:7; Adelman Decl., Ex. 7; Tudo Dep. at 53:5-54:1. Among the tasks listed was 21 completion of the annual fire and safety testing (Adelman Decl., Ex. 7), which requires a vendor 22 such as a fire alarm company to perform the testing, and the elevator company's service mechanic 23 to observe and certify the results of such testing (Def. MSJ at 7:9-13). Plaintiff was called upon to 24 observe and certify the annual fire safety testing of the Nordstrom elevator. 25
Elevator fire testing consists of multiple phases, but the only
relevant phase for purposes of
these motions is the testing of the shunt trip circuit breaker
device ("shunt trip"). A shunt trip is a 27 circuit breaker device
that, during a fire, cuts off power to the elevator equipment in a
machine room before the fire sprinklers engage. Lukov Dep. at 117:10-17. At
this phase of the testing, the 2 vendor conducting the test applies
heat to activate the heat detector in the shunt trip to determine if 3
the heat will trip the shunt trip to cut off power to the elevator
prior to the activation of the fire 4 sprinklers. Tudor Dep. at
115:6-18. Plaintiff was present for the shunt trip testing of the 5
Nordstrom elevator. Lukov Dep. at 91:1-8; 106:2-9. He observed that the shunt trips did shut off 6 the power as required, but became concerned because the shunt trips were located in the elevator 7 machine room, and had residual power on the live (line) side of the disconnected circuit breaker, 8 which Plaintiff believes would be hazardous when exposed to water. Lukov Dep. at 118:8-119:2; 9
Plaintiff communicated his concern to Nordstrom, Defendant, and DOSH multiple times over the course of several months. During the testing, Plaintiff expressed his concern to Batista Perea, Nordstrom's senior engineer, and indicated he would not certify the elevator until the shunt 13 trip was fixed. Lukov Dep. at 122:10-14; 123:22-124:6, 129:13-24. On the day of the testing, 14
Plaintiff also spoke with Romina "Mina" Pacheco, the local Schindler Office Coordinator, as well 15 as two higher-level employees of Defendant, to inform them of the shunt trip issue. Lukov Dep. at 16 129:25-131:18; 133:14-21. Soon after the testing, he discussed the shunt trip location with his 17 co-workers Murphy, Fearnside, and Novosel. Lukov Dep. at 135:2-24, 136:13-21. Plaintiff later 18 informed Tony Villa, Nordstrom's national director of facilities, that the shunt trip was not in 19 compliance. Lukov Dep. at 150:18-152:17. 76:4, Ex. 10. The extension was granted. Later, in June or July of 2009, Plaintiff again contacted 23 160:21-161:23; 256:17-21.
Dep. at 162:18-164:4. Mr. Aissa asked Plaintiff several times if the shunt trip had worked, to 28
Plaintiff contacted DOSH on or about May 27, 2009, requesting an extension for Nordstrom to relocate the shunt trip. Lukov Dep. at 150:18-153:11, Ex. 8; Pacheco Dep. at 74:17-22 DOSH requesting a second extension for Nordstrom, but was denied. Lukov Dep. at 158:24-159:7; 24 After this second communication with DOSH, Chris Aissa, Defendant's District Service Manager, phoned Plaintiff and asked him why he had "turned Nordstrom in" to DOSH. Lukov 27 which Plaintiff said "yes it tripped," but went on to explain that "it was located in the wrong spot." 2
Lukov Dep. at 164:13-22. Mr. Aissa then told Plaintiff to let him know if a situation like that ever 3 came up again. Lukov Dep. at 181:6-8. 4
In August 2009, Plaintiff advised Mr. Lutter, Defendant's Superintendent in the South Bay, 5 that he believed Nordstrom's elevators were still out of compliance, and that he would not certify 6 them. Lutter Dep. at 132:17-23; 133:21-134:7. Several months later, in January of 2010, Mr. Villa 7 asked Mr. Aissa to remove Plaintiff from Nordstrom's account. Aissa Dep. at 82:7-83:5; 232:9-23. 8 Mr. Aissa did not ask and was not told the basis of the request. Id. ...