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Miller v. Amerigas Partners, L.P.

United States District Court, E.D. California

March 19, 2014

JAMES MILLER, Plaintiff,
v.
AMERIGAS PARTNERS, L.P., Defendant.

ORDER

KIMBERLY J. MUELLER, District Judge.

This case was on calendar on February 14, 2013 for a hearing on the motion for summary judgment filed by AmeriGas Partners, L.P. (AmeriGas). Gregory Ramirez of Myers, Widders, Gibson, Jones & Feingold, LLP, appeared for plaintiff James Miller; Melinda Riechert of Morgan, Lewis & Bockius, LLP, appeared for AmeriGas. After considering the parties' arguments, the court GRANTS the motion.

I. BACKGROUND

On October 31, 2012, Miller filed a complaint in Mono County Superior Court alleging generally that he had been employed as a District Manager by Heritage Propane in Mammoth Lakes, California since 1997; in October 2011, Heritage announced that its rival AmeriGas had acquired Heritage; in January 2012, Heritage employees received a transition packet from AmeriGas, including a "Confidentiality and Post Employment Agreement" providing that any employee would not solicit AmeriGas employees or sell propane within a fifty mile radius from an AmeriGas District Office for two years after leaving AmeriGas; Miller refused to sign the agreement; AmeriGas let employees know there would be some layoffs because, for example, there could be only one manager in an area that had had both Heritage and AmeriGas offices; within a month of his second refusal to sign the agreement, plaintiff was interviewed for the position of manager of the combined Bishop/Mammoth Lakes region; about a month after the interview Lisa Thomas, one of the interviewers, arrived at the Mammoth Lakes office, and informed plaintiff he had not been selected for the manager position. ECF No. 1-1 at 8-14. The complaint contains two claims: (1) wrongful termination in violation of public policy; and (2) unfair business practices in violation of California Business and Professions Code §§ 17200, et seq.

On December 10, 2012, AmeriGas removed the case to this court. ECF No. 1. The instant motion was filed on December 20, 2013. ECF No. 21.

II. STANDARDS FOR A MOTION FOR SUMMARY JUDGMENT

A court will grant summary judgment "if... 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 "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).[1]

The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact...." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record...; or show [] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact.... Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original).

In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

A court may consider evidence as long as it is "admissible at trial." Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). "Admissibility at trial" depends not on the evidence's form, but on its content. Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001) (citing Celotex Corp., 477 U.S. at 324). The party seeking admission of evidence "bears the burden of proof of admissibility." Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1004 (9th Cir. 2002). If the opposing party objects to the proposed evidence, the party seeking admission must direct the district court to "authenticating documents, deposition testimony bearing on attribution, hearsay exceptions and exemptions, or other evidentiary principles under which the evidence in question could be deemed admissible...." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385-86 (9th Cir. 2010).

III. EVIDENTIARY OBJECTIONS

Each party objects to some of its opponent's evidence. The court resolves these disputes only as to that evidence it deems relevant and material.

A. Miller's Objections

Miller raises an hearsay objection to paragraphs in the declarations of AmeriGas employees Lisa Thomas, Richard Martinelli, Gary Browne, and Cassandra Russo, incorporating their notes of their interview of Jeff Pahlow for the manager's position. See, e.g., Decl. of Gary Browne, ECF No. 25 ¶ 4 & Ex. B ("Attached hereto as Exhibit B is a true and correct copy of the Interview Guide I filled out when interviewing Jeff Pahlow.... The notes contain accurate summaries of statements Pahlow made at his interview."). AmeriGas is not asking the court to consider the truth of what Pahlow said during the interview, but that the interview panel relied upon what he said; the court overrules the hearsay objection. See Bergene v. Salt River Project Agr. Imp. and Power Dist., 272 F.3d 1136, 1142 (9th Cir. 2001) (finding a statement was not hearsay when not offered for the truth of the matter asserted).

Miller next objects to Regional Human Resources Manager Shirley Kelley's claim to be aware of at least two former Heritage employees who did not sign the confidentiality agreement and yet have remained employed by AmeriGas, arguing the claim is vague and lacks foundation. Decl. of Shirley Kelley, ECF No. 24 ¶ 2. The court agrees the statement is too vague for it to have any relevance, as there is no indication the employees were in the same position that Miller sought and that the same considerations of confidentiality would apply to employees holding other jobs within the company.

Finally, Miller objects to Lisa Thomas's deposition testimony that "there was a directive that we could offer anybody that didn't take the position that we wanted to, they didn't have to sign the agreement. It wasn't an issue at that point. [¶] And that came from Paul Grady." Decl. of Yin Zheng, Ex. B, Dep. of Lisa Thomas, ECF No. 23-2 at 20:23-21:2. The court will not consider this as evidence there was such a policy, but to the extent it shows Thomas's state of mind in making a hiring decision or the effect on Thomas, it is not hearsay. See United States v. Arteaga, 117 F.3d 388, 397-98 (9th Cir. 1997).

B. AmeriGas's Objections

AmeriGas objects to a paragraph of Miller's declaration describing an email he received from Louis Escarcega and identifying the attachments to that email, which Miller characterizes as coming from Vice-President of Operations Jim Gunnick. Decl. of James Miller, ECF No. 32 ¶ 7 & Ex. C. AmeriGas has presented evidence that Escarcega did not forward the original spreadsheet sent by Gunnick but rather substituted another. See, e.g., Second Decl. of Gary Browne, ECF No. 38. The court will not consider either Miller's characterization of the email, which speaks for itself, or the attachment Miller identifies, as he has no personal knowledge that the attachment he identifies is the one Gunnick sent to Martinelli and Browne. See Block, 253 F.3d at 419 (stating affidavit must be based on personal knowledge).

IV. FACTS

When the parties agree a fact is undisputed, the court refers to their agreement rather than to the portions of the record supporting the agreement. When the facts are disputed, the court notes the disagreement and cites to the supporting record cites. The court does not cite to any facts that are irrelevant to resolution of the pending motion.

James Miller worked for Heritage Propane from 1997 to 2011, managing the Mammoth Lakes Division. Miller Decl., ECF No. 32 ¶ 1. In January 2012, AmeriGas acquired Heritage. AmeriGas's Response to Miller's Statement of Facts, ECF No. 37 ¶ 1. AmeriGas sent Miller a new-hire packet, which included a "Confidentiality and Post-Employment Agreement" (Agreement), which sought to prohibit Miller from soliciting any AmeriGas customer or working with any AmeriGas competitor within fifty miles of Mammoth Lakes for two years following any termination of Miller's employment. Id. ¶¶ 32.1, 32.3-32.4. The Agreement states, among other things, that "the execution of this agreement is a requirement of my employment with AmeriGas...., " and requires an employee to disclose the existence of the agreement to potential employers. Id. ¶¶ 32.6, 32.9.

On April 2, 2012, Miller notified AmeriGas he would not sign the Agreement because he believed it to be unreasonable and possibly in violation of the law. Id. ¶ 32.13. In May, AmeriGas employee Escarcega twice emailed Miller asking him to return the signed Agreement. ECF No. 32, Ex. C at 13.[2] On May 11, 2012, Miller again refused to sign the Agreement. ECF No. 37 ¶ 32.16.

After the acquisition, there was some overlap between AmeriGas and former Heritage districts. Miller's former district overlapped with AmeriGas's Mammoth Lakes/Bishop District. Jeff Pahlow was District Manager ("DM") for the Mammoth Lakes/Bishop district. ECF No. 37 ¶ 3. Both Miller's and Pahlow's areas were in AmeriGas's Area 46. Id. ¶ 4.

Because of the overlap, a panel of AmeriGas employees interviewed Miller and Pahlow to decide which DM to retain in their portion of Area 46 and interviewed other DMs of overlapping areas as well. Id. ¶¶ 2, 5. The panel consisted of the following: Lisa Thomas, Area Director for Area 46; Gary Browne, Area Director for Area 45; Richard Martinelli, Area Director for Area 44; and Cassandra Russo, Area Sales Manager for Areas 44, 45 and 46. Id. ¶ 5. Lisa Thomas was aware Miller had refused to sign the Agreement, but the panelists did not discuss the refusal to sign as part of their decision making process. Id. ¶¶ 32.14, 32.17; ECF No. 27 ¶¶ 8-9; ECF No. 25 ¶¶ 8-9; ECF No. 26 ¶¶ 8-9.[3] Thomas herself had signed the Agreement because she was "personally okay" with it, "because in my... personal beliefs and my personal ethics... I wouldn't want to share information that was entrusted to me with a new employer...." ECF No. 31 at 33:13-17.

Miller disputes that Thomas was the only panel member aware of his refusal to sign, saying that Martinelli and Browne received an email from Jim Gunnick with an attached spreadsheet showing Miller's refusal to sign the agreement. ECF No. 32 ¶ 7; ECF No. 32 at 14-20. As noted above, the court has sustained AmeriGas's objection to this portion of Miller's declaration because Miller did not have personal knowledge that the spreadsheet he received was the one Gunnick sent to Martinelli and Browne. In addition, both Martinelli and Browne have submitted rebuttal declarations, describing the document they received from Gunnick on May 9, 2012 as a 238 page spreadsheet showing those employees who had not completed paperwork. ECF Nos. 38 & 39. They acknowledge Miller's name is on the document they received, but aver they did not notice Miller's name because he was not in their districts and so was not their responsibility. Id. Despite their disavowals, the evidence of record creates a disputed issue of fact concerning what Martinelli and Browne knew, if anything, of plaintiff's refusal to sign the Confidentiality Agreement.

For the new DM interviews, panel members were given Interview Guides with questions they could ask the interviewees and space for notes. Decl. of Lisa Thomas, ECF No. 28 ¶¶ 5, 10; Decl. of Richard Martinelli, ECF No. 26 ¶ 3; Decl. of Cassandra Russo, ECF No. 27 ¶ 3; Decl. of Gary Browne, ECF No. 25 ¶ 3. Miller disputes this, asserting the panelists were required to follow the Guide without variation. In support he provides a snippet of Shirley Kelley's deposition, during which Kelley, a Human Resources Manager, said she "strongly encourage[d]" the panelists to follow the guide. Decl. of James Perero, Ex. I, Dep. of Shirley Kelley, ECF No. 31 at 69:11-16. There is no explanation in this portion of the transcript of what Kelley meant by "follow the guide." Just before the portion on which plaintiff relies, Kelley says there is no written protocol for how the panel should conduct and score the interviews, because the guide "is only a tool." Id. at 20:17-20.[4] Miller thus fails to identify a dispute on this question. He also fails to identify any dispute by citing to Thomas' testimony that the panelists reviewed interview procedure, including the guide, with Kelley. Id. at 29.

The panel interviewed Pahlow on May 31, 2012 and Miller on June 6, 2012, using the interview guides. ECF No. 37 ¶¶ 6-7. Although the panel did not ask all the questions in the guide, they asked Miller and Pahlow the same questions. See, e.g., ECF Nos. 28-1 & 28-8 (Thomas's guide for Miller and Pahlow); ECF Nos. 26-1 & 26-2 (Martinelli's guide for Miller and Pahlow). Martinelli was concerned about Miller's attitude generally and specifically regarding blending the two companies. ECF No. 26 ¶ 4. Russo thought Miller's answers were difficult to follow and lacked substance. ECF No. 27 ¶ 4. Thomas believed Miller's negative attitude toward AmeriGas would hamper his ability to blend the two districts. ECF No. 28 ¶ 6. Thomas did not consider Miller's refusal to sign the Confidentiality Agreement in reaching her decision; she had in fact been told the panel's decision was not constrained by any candidate's refusal to sign the Agreement. ECF No. 23-2 at 116: 23-117:7.

The panel decided to submit a single evaluation for each interviewee. ECF No. 27 ¶ 6; ECF No. 25 ¶ 5; ECF No. 26 ¶ 6; ECF No. 28 ¶¶ 12-13. Thomas filled out the evaluations. Id. & Exs. C & D. Each panel member concurred in the evaluations Thomas recorded. ECF No. 26 ¶ 6; ECF No. 27 ¶ 6; ECF No. 25 ¶ 5; ECF No. 28 ¶ 14.

After the panel had finished all the interviews for the area 46 DM, they compiled a selection scorecard, which compared and contrasted the candidates' information; on the basis of the scorecard, the panel recommended the position be given to Pahlow rather than Miller. ECF No. 25 ¶¶ 6-7; ECF No. 26 ¶¶ 7-8; ECF No. 27 ¶¶ 7-8; ECF No. 28 ¶¶ 16-17 & Ex. E.

After the interviews, the Guides, Evaluation Sheets and Selection Scorecard were submitted to Jim Gunnick, a Heritage employee who had become Vice President of Operations at AmeriGas and who was responsible for approving the DM selections. ECF No. 37 ¶ 23. After a conference call with the interview panel, he concluded Miller was not the best candidate for the position. Dep. of James Gunnick, ECF No. 31 at 75:1-6, 19-21 & 76:8-10; Thomas Dep., ECF No. 23-2 at 34:21-24.

At argument on the motion, Miller's attorney said Gunnick was aware of Miller's refusal to sign the Agreement. Although Miller does not include this explicitly in his Statement of Undisputed Facts, he did respond to AmeriGas's statement by citing to the email Martinelli and Browne received from Gunnick along with the spreadsheet of employees who had not completed items of the required paperwork. ECF No. 37 ¶ 26. As noted above, in their reply declarations, Martinelli and Browne each identify a 235 page spreadsheet Gunnick sent by e-mail, which included information that Miller had not signed the Agreement. ECF No. 38; ECF No. 39 ¶ 2 & Ex. A. Although Miller has presented no evidence that Gunnick read every line of the spreadsheet or was otherwise aware of Miller's response to the Agreement, the evidence he points to raises an inference of Gunnick's knowledge.

Thomas met with Miller on July 3, 2012 and told him he had not been selected for the DM position. ECF No. 37 ¶ 29.

V. WRONGFUL TERMINATION

In Tameny v. Atlantic Richfield Co., the California Supreme Court explored the question whether an at-will employee ever had a remedy against an employer for termination or other adverse employment actions. 27 Cal.3d 167 (1980). The court concluded that "when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." Id. at 170. Such claims fall into four categories: "the employee (1) refused to violate a statute; (2) performed a statutory obligation; (3) exercised a constitutional or statutory right or privilege; or (4) reported a statutory violation of the public's benefit." Green v. Ralee Eng'g Co., 19 Cal.4th 66, 76 (1998).

In D'Sa v. Playhut, Inc., the California Court of Appeal for the Second Appellate District said:

We hold an employer cannot lawfully make the signing of an employment agreement, which contains an unenforceable covenant not to compete, a condition of continued employment.... We further hold that an employer's termination of an employee who refuses to sign such an agreement constitutes a wrongful termination in violation of public policy.

85 Cal.App.4th 927, 929 (2001). AmeriGas does not argue its Confidentiality Agreement was legal, but rather argues Miller has not established a nexus between the public policy at stake and his termination. ECF No. 21 at 13.

Whatever the category, a plaintiff alleging wrongful termination must establish his prima facie case by showing "(1) he or she engaged in a protected activity, ' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." Loggins v. Kaiser Permanente Int'l, 151 Cal.App.4th 1102, 1109 (2007); Mendoza v. Western Med. Ctr. Santa Anna, 222 Cal.App.4th 1334, 1341-1342 (2014) (plaintiff must show protected conduct was substantial motivating factor for adverse action); see also Wright v. Thrifty Payless, Inc., No. 2:13-CV-1681 KJM, 2013 WL 5718937, at *6 (E.D. Cal. Oct. 15, 2013) (stating employee must show nexus between his protected activity and employer's adverse action). "Causation sufficient to establish the third element of the prima facie case may be inferred from circumstantial evidence, such as the employer's knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected activity and the allegedly retaliatory employment decision." Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987); see also Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003), amended on denial of reh'g, No. 00-35999, 2003 WL 21027351 (9th Cir. May 8, 2003) (temporal proximity between protected activity and adverse action may give rise to inference of retaliation).

AmeriGas argues plaintiff cannot establish a nexus for several reasons: (1) Thomas was the only member of the interview panel who was aware of Miller's refusal to sign the Agreement; (2) the panel did not discuss Miller's refusal; and (3) the panel members reached consensus that Pahlow was more qualified based on the interviews and their scoring of the candidates. ECF No. 21 at 14.

Miller counters that the evidence shows the panel merely ratified Thomas's decision to select Pahlow over Miller and that Gunnick also simply rubberstamped Thomas's decision. He disputes that the decision was made by consensus. First, Miller cites the following portion of Thomas's deposition: "And that you're starting from scratch from day one, once you offer that position to the person, going forward. He was going to be on my team going forward. Anybody that I chose." ECF No. 31 at 52: 4-7. However, Thomas made this comment as part of an exploration of the interview panel's discussion of the candidates' safety records and her concerns with the candidates' ability to manage a large district, particularly because the person selected would be on her team; it is not properly read as a claim that the authority to choose the DM was hers alone. This one statement taken out of context does not create a dispute. See, e.g., Kesinger ex. rel Estate of Kesinger v. Herrington, 381 F.3d 1243, 1249 (11th Cir. 2004) (finding statement taken out of context does not create disputed issue).

Miller also provides an email from Martinelli, responding to Shirley Kelley's inquiry about a conversation Martinelli had with Miller after the DM was selected, in which Martinelli reports Miller's asking "why he didn't make the cut." Martinelli says he told Miller he "wasn't sure of the direct reason, though [he] was on the interview panel, the final decisions were in each Area Director hands along with the interview process results." ECF No. 31 at 63 (reproduced as in original). This email does not create a genuine issue of fact, for Martinelli does not say the Area Director's decision was controlling, but rather that the "interview process results" also played a role in the decision. See FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) ("In order to avoid summary judgment, a non-movant must show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in his favor. A non-movant's bald assertions or a scintilla of evidence in his favor are both insufficient to withstand summary judgment) (internal citation omitted, emphasis in original); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (inferences may be drawn from non-moving party's evidence "so long as such evidence was of sufficient quantum or quality'").

Miller further contends Gunnick was authorized to ratify Thomas's chosen candidate and simply said "that's fine" during the conference call about the hiring decision. His citation to Gunnick's deposition does not support this claim, for Gunnick does not say his role was to ratify Thomas's candidate, but rather to have the final word as to who was chosen. Gunnick Dep. at 23:18-20. Gunnick also said he reviewed the interview materials Shirley Kelley sent him, participated in a conference call with the interview panel, and concluded Miller was not the best candidate. Id. at 24:1-21. Miller's additional citation to Thomas's deposition similarly does not create a disputed issue, for again he takes Thomas's statement out of context. Thomas testified that when the panel members had the conference call with Gunnick, they went down the list, manager by manager, reporting their decision and Gunnick said "I agree" or "not agree" or "that's fine." Thomas Dep. at 90:16-23. Earlier in the deposition, Thomas echoed Gunnick's description of the process: all the paperwork was sent to Gunnick and Kelley and then the panel reviewed all this material with Gunnick during a conference call. Id. at 34:21-35:2. Miller's reference to an isolated portion of Thomas's deposition does not create a dispute as to whether Gunnick acted only to rubber-stamp Thomas's or even the panel's decision.

Based on the above discussion of the evidence, plaintiff's showing is not strong. But his burden of establishing his prima facie case is not onerous. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1091 (9th Cir. 2001). In this case, there is no dispute that Thomas, the Area Director, was aware of plaintiff's refusal to sign the Agreement. There is disputed evidence concerning Martinelli's and Browne's knowledge of the refusal. Although plaintiff has not shown that Thomas alone controlled the hiring process, Thomas's input as Area Director may have had some influence on the interview panel and Gunnick's decision. See, e.g., DeJung v. Superior Ct., 169 Cal.App.4th 533, 551 (2008) ("Showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus); Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (recognizing that a subordinate's bias stemming from plaintiff's protected activity might be imputed to ultimate decisionmaker under some circumstances); Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990) (even in absence of evidence any member of committee harbored hostility to older workers, older worker may establish prima facie case by showing supervisor's discriminatory animus influenced decision). Moreover, there is evidence suggesting Gunnick himself, who had final authority over the DM decision, was aware of Miller's rejection of the Agreement. In addition, there is no dispute that Miller made clear his belief in the illegality of the Agreement in April and again in May; then in June, the panel decided not to offer him the position. The combination of the temporal proximity and the evidence that three panel members and Gunnick might have been aware of Miller's protected activity, though weak, is sufficient to satisfy the burden of establishing a prima facie case.

Courts apply the McDonnell-Douglas framework in evaluating wrongful discharge cases. Loggins, 151 Cal.App.4th at 1109; Vargas v. BP Am. Inc., ___ F.Appx. ___, 2013 WL 6487508, at *1 (9th Cir. Dec. 11, 2013) (unpublished); Washington v. Ca. City Corr. Ctr., 871 F.Supp.2d 1010, 1030 (E.D. Cal. 2012). Under that framework, once the plaintiff has established his prima facie case, the burden of production then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). If that burden is satisfied, then the burden returns to the plaintiff to show that the articulated reason is a 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.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (quoting Chuang v. University of California Davis, 225 F.3d 1115, 1123 (9th Cir. 2000)). The presumption of discrimination "drops out of the picture" once the employer meets its burden of production, but "the trier of fact may still consider the evidence establishing plaintiff's prima facie case" in evaluating whether the employer's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).

AmeriGas has offered evidence that it chose Pahlow after the interview process based on his higher scores on the questions the panel asked, leading the panel to find Pahlow was more qualified to be D. a large, blended district. This satisfies AmeriGas's burden to articulate a legitimate non-retaliatory reason for choosing Pahlow over Miller. See, e.g., Villalta v. City & Cnty. of San Francisco, 448 F.Appx. 697, 699 (9th Cir. 2011) (unpublished) (finding employer satisfied its burden by producing evidence it promoted people who were rated higher during interview process); Gardias v. San Jose State Univ., Nos. C04-04086 HRL, C04-04768 HRL, C05-01242 HRL, C05-01833 HRL, C06-04695 HRL, 2009 WL 928112, at *13 (N.D. Cal. Mar. 31, 2009). The burden thus returns to Miller.

"A plaintiff may demonstrate pretext in either of two ways: (1) directly, by showing that unlawful discrimination more likely than not motivated the employer; or (2) indirectly, by showing that the employer's proffered explanation is not worthy of credence." Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011). Direct evidence includes discriminatory or retaliatory statements or actions by the employer. Munoz v. Mabus, 630 F.3d 856, 865 (9th Cir. 2010); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) ("Direct evidence is evidence, which if believed, proves the fact of [discriminatory animus] without inference or presumption.'") (quoting Davis v. Chevron, U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994)) (alteration in original). Miller has presented no direct evidence of retaliatory animus.

Miller suggests AmeriGas's explanation is not worthy of belief because the panel did not ask all the questions in the Interview Guide and did not separately score the candidates. Deviations from protocol and procedural irregularities may give rise to an inference of pretext. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 896 (9th Cir. 2005). As noted above, however, Miller's evidence does not show the panel was required to ask all the questions or prepare separate score sheets rather than providing a single consensus scores. Moreover, even assuming the panel's method was in fact a departure from the required protocol, it does not support Miller's pretext theory, as the panel used the same procedures to evaluate both Pahlow and Miller. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 n.9 (10th Cir. 2000) ("[W]here the alleged procedural irregularity disadvantaged all potential applicants' for a promotion, rather than just members of a protected class, the fact that a company failed to follow its own procedures does not suggest either that the defendant's proffered reasons for its employment decisions were pretextual or that the defendant was motivated by illegal discrimination.'") (quoting Randle v. City of Aurora, 69 F.3d. 441, 454 n.20 (10th Cir. 1995)).

Miller also points to Thomas's alleged reliance on impressions she formed of Miller during a managers' meeting in May. ECF No. 34 at 6-7. Thomas describes a meeting she had with a group of managers, including Miller, where she asked them to fill out worksheets that would help determine staffing in the blended companies. ECF No. 31 at 41: 8-16. She said the main purpose of the exercise was to evaluate the participants' management style and how they perceived their employees. Id. at 42: 5-6, 43:2-5. After this meeting, Thomas concluded Miller "was a little resistant to the changes.... Kind of downtalked AmeriGas on a few of the occasions. [¶] He was outgoing. Very personable with the rest of the group. [¶] He didn't want to change the brand name...." Id. at 43:18-24. Thomas believed Miller was resistant to working for AmeriGas; she reported he said AmeriGas did not view their employees as people. Id. at 44:19-24.

Miller has presented no evidence, however, that that the panel was supposed to be completely ignorant of the candidates. Moreover, to the extent this last evidence shows anything about the selection process it is that Thomas formed somewhat negative impressions of Miller's management style and his commitment to AmeriGas, not that she came to any conclusions based on Miller's refusal to sign the Confidentiality Agreement. The evidence does not undermine AmeriGas's proffered reason for not offering Miller the DM position and ultimately discharging him, or suggest the reason is based on retaliatory animus.

VI. Unfair Competition Law

In his second claim, plaintiff alleges he is "entitled to injunctive relief in the form of a judicial declaration that the AmeriGas Agreement is null and void in the State of California, and a decree barring AmeriGas from requiring California employees to execute the AmeriGas Agreement." ECF No. 1 ¶ 46.

California's Unfair Competition Law ("UCL") prohibits "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." CAL. BUS. & PROF. CODE § 17200. An act violates the UCL if it is "unlawful, " "unfair" or "fraudulent." Rubio v. Capitol One Bank, 613 F.3d 1195, 1203 (9th Cir. 2010), cert. denied, 131 S.Ct. 1817 (2011). An employer's use of a noncompete clause is "unlawful" under the UCL. Dowell v. Biosense Webster, Inc., 179 Cal.App.4th 564, 575 (2009).

To assert a UCL claim, a plaintiff must have "suffered injury in fact and... lost money or property as a result of the unfair competition.'" Rubio, 613 F.3d at 1203-04 (quoting CAL. BUS. & PROF. CODE § 17204 (alteration in original)). There must be a causal connection between the defendant's alleged UCL violation and the plaintiff's injury in fact. Id. If plaintiff has standing under section 17204, he may seek injunctive relief under the UCL. Clayworth v. Pfizer, Inc., 49 Cal.4th 758, 789-90 (2010); CAL. BUS & PROF. CODE § 17203 ("Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction.").

AmeriGas argues Miller does not have standing under the UCL because he cannot show he lost money or property as a result of its noncompete clause. More fundamentally, however, Miller lacks constitutional standing to seek injunctive relief.

To meet the standing requirements of Article III of the Constitution, "a plaintiff must show that he is under threat of suffering injury in fact' that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury." Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Past injury by itself does not establish standing. Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010), cert. denied, ___ U.S. ___ , 131 S.Ct. 2456 (2011); Mayfield v. United States, 599 F.3d 964, 970 (9th Cir.), cert. denied 131 S.Ct. 503 (2010) ("Once a plaintiff has been wronged, he is entitled to injunctive relief only if he can show that he faces a real or immediate threat... that he will again be wronged in a similar way.'" (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983))). Miller has not shown he will be harmed in the future by the clause and so cannot seek declaratory or injunctive relief based on his UCL claim. Campion v. Old Republic Home Prot. Co., Inc., 861 F.Supp.2d 1139, 1146-48 (S.D. Cal. 2012) (distinguishing Article III standing from UCL standing).

IT IS THEREFORE ORDERED that:

1. Defendant's motion for summary judgment, ECF No. 21, is granted; and
2. The case is closed.

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