United States District Court, S.D. California
JERRY J. HAWKINS, Plaintiff,
SIMPLEXGRINNELL L.P., et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [doc. #24] and DIRECTING ENTRY OF JUDGMENT
M. JAMES LORENZ, District Judge.
Plaintiff Jerry J. Hawkins filed this action in the Superior Court of the State of California, in and for the County of San Diego. He alleges eight causes of action against defendants SimplexGrinnell L.P. ("SG") and Tyco International (collectively "defendants") including breach of contract; breach of the covenant of good faith and fair dealing; age discrimination; perceived disability discrimination; retaliation; wrongful demotion in violation of public policy; wrongful termination in violation of public policy; and intentional infliction of emotional distress. Defendants removed this action on June 11, 2012. Currently pending is defendants' motion for summary judgment or partial summary judgment. [doc. #24]. The motion has been fully briefed and is decided without oral argument.
Bob Ciereck, Operations Manager at SG's San Diego location, hired Hawkins as a fire alarm installer/technician, with the title "systems integration technician", in July 2006, when plaintiff was 56 years old. A technician's tasks include the installation of wiring and related devices for the installation of commercial fire alarm systems. Plaintiff had foreman responsibilities on several projects during his employment. The responsibilities of a foreman included completing his own installation work and overseeing the installation work performed by journeymen and apprentices. But in July 2010, SG removed plaintiff's foreman responsibilities based on a series of safety violation involving plaintiff.
In March 2011, SG reduced its workforce because of the state of the economy, i.e., defendants conducted a reduction in force ("RIF"). It chose to eliminate two of 19 technician positions and enacted an objective selection process based on a competency evaluation of the 19 technicians. The two lowest rated employees were laid off, including plaintiff, who was the lowest ranking employee.
Plaintiff asserts that his removal as a foreman in July 2010, and his layoff in March 2011 were illegally based on his age and his perceived disability, Hepatitis C. In addition, plaintiff contends he was discriminated against because he did not receive a company truck for his use as soon as he believed he should have and was retaliated against because of his complaints about the company truck.
B. Summary Judgment Standard
Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
"The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). Therefore, the court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir. 1995)). If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).
If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient.") (citing Anderson, 477 U.S. at 242, 252). Rather, the nonmoving party must "go beyond the pleadings" and by "the depositions, answers to interrogatories, and admissions on file, " designate "specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)).
When making this determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587. "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255.
1. Breach of Contract
It is beyond dispute that SG has a policy of at-will employment. Although plaintiff acknowledges that he signed an employment application and the offer letter that indicated the position he was accepting was an at-will agreement for employment, and he understood by the term "at-will" that "either Company or I may terminate the employment relationship at any time, for any reason, with or without cause or prior notice" (Hawkins Depo. at 45), he nevertheless argues that his employment relationship with SG was modified by an implied-in-fact contract to discharge only for cause. ( Id. ),
California law is quite clear: an express at-will agreement precludes the existence of an implied-in-fact contract. See Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317 (2000); see also Halvorsen v. Aramark Unif. Servs., Inc., 77 Cal.Rptr.2d 383, 385 (Ct. App. 1998). An at-will provision in an employment application sufficiently creates an at-will employment relationship that cannot be overcome by parol evidence of implied limitations to the at-will relationship. See Gianaculas v. Trans World Airlines, Inc., 761 F.2d 1391, 1394 (9th Cir. 1985). Because "there cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results, " allegations of an implied for-cause contract cannot rebut the employee's status as an at-will employee. See Rochlis v. Walt Disney Co., 23 Cal.Rptr.2d 793, 798 (Ct. App. 1993).
Here, plaintiff was aware of his at-will employment status in the employment application and acceptance of offer, both of which he signed. He cannot now introduce evidence of an altered relationship between the parties and indeed, there is no such evidence. As a result, defendant was entitled to terminate plaintiff's employment at any time, with or without cause. Accordingly, defendants are entitled to summary judgment on plaintiff's breach of contract claim.
2. Breach of the Implied Covenant of Good Faith and Fair Dealing
A terminated employee who fails to establish anything but an at-will employment agreement is precluded from recovering for breach of the covenant of good faith and fair dealing. Guz, 24 Cal.4th at 350-352 ("Because the implied covenant protects only the parties' right to receive the benefit of their agreement, and in an at-will relationship there is no agreement to terminate only for good cause, the implied covenant standing alone cannot be read to impose such a duty.").
As discussed above, plaintiff was an at-will employee and cannot establish a breach of contract claim. As a matter of law, plaintiff cannot recover for breach of the covenant of good faith and fair dealing and defendant is entitled to summary judgment on this claim.
3. Discrimination Claims Under the FEHA
Under the FEHA, it is illegal for an employer to discriminate against an employee "in compensation or in terms, conditions, or privileges of employment" on the basis of race, color, or national origin. CAL. GOV'T CODE § 12940(a). Courts apply the McDonnell Douglas burden-shifting framework to FEHA claims. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04; see also Metoyer v. Chassman, 504 F.3d 919, 941 (9th Cir.2007) (applying Title VII framework to FEHA claim). Under this framework, the plaintiff must first establish a prima facie case of discrimination, the elements of which will vary according to the specific situation. Guz, 24 Cal.4th at 355. In establishing a prima facie case, plaintiff is required to show: "(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action... and (4) some other circumstance suggest[ing] discriminatory motive [ i.e., similarly situated employees were treated more favorably]." Id. (citations omitted). In all cases, "a plaintiff must offer evidence that give[s] rise to an inference of unlawful discrimination." Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996).
The requirement that plaintiff establish a prima facie case "is designed to eliminate at the outset the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified, or where the job he sought was withdrawn and never filled." Guz, 24 Cal.4th at 379. Establishing a prima facie case is "not onerous." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Nevertheless, plaintiff must at least show "actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a [prohibited] discriminatory criterion.'" Guz, 24 Cal.4th at 355 (citations omitted).
An "adverse employment action" is a "shorthand expression referring to the kind, nature, or degree of adverse action against an employee that will support a cause of action under" FEHA. Yanowitz v. L'Oreal U.S.A., 36 Cal.4th 1028, 1049 (2005). Such an action must "materially affect[ ] the terms, conditions, or privileges of employment, " id. at 1051, or "[be] reasonably likely to impair a reasonable employee's job performance or prospects for advancement, " id. at 1054-55.
If the plaintiff makes the required prima facie showing, "the burden shifts to the employer to rebut the presumption [of discrimination] by producing admissible evidence, sufficient to raise a genuine issue of fact and to justify a judgment for the employer that its action was taken for a legitimate, nondiscriminatory reason." Guz, 24 Cal.4th at 355-56. If the employer succeeds, the plaintiff "must then... attack the employer's proffered reasons, " with "specific, substantial evidence of pretext.'" Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) (quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983)). The employee must then "demonstrate either... that the defendant's showing [is] in fact insufficient or... that there [is] a triable issue of fact material to the defendant's showing.'" Dep't of Fair Emp't & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 745 (9th Cir. 2011) (quoting Hanson v. Lucky Stores, Inc., 74 Cal.App.4th 215, 225 (1999)). The employee may do this by establishing pretext, "by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)). "An employee... [cannot] simply show the employer's decision was wrong, mistaken, or unwise." Id.
a. Age Discrimination
A plaintiff establishes a prima facie case of age discrimination under the FEHA by presenting evidence that "the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone ...