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Su v. Siemens Industry, Inc.

United States District Court, N.D. California

May 12, 2014

JULIE SU, California State Labor Commissioner, Division of Labor Standards Enforcement Plaintiff,


JON S. TIGAR, District Judge.


In this employer retaliation action arising under Section 6310 of the California Labor Code, [1] Plaintiff and California State Labor Commissioner Julie Su ("Plaintiff") and Defendant Siemens Industry, Inc. ("Defendant") have each filed motions for summary judgment. The matter came on for hearing April 9, 2014.


A. The Parties and Claims

Plaintiff Julie Su, the California State Labor Commissioner, brings this action on behalf of Charles Anderson and Charles Pitschner ("Complainants") against Defendant Siemens Industry, Inc. ("Defendant"). Anderson and Pitschner were employed by Defendant as part of the crew installing a baggage conveyor system at San Francisco International Airport ("SFO"). Their employment was subsequently terminated after they made job-related safety complaints. Plaintiff now brings this claim under Section 6310 of the California Labor Code ("Section 6310") for retaliatory termination.

B. Factual Background

Defendant is a subcontractor of general contractor Turner Construction, Inc., which was responsible for renovating Terminal 2 at SFO. Declaration of Jim Smith ("J. Smith Decl.") ¶ 6, ECF No. 85-21. Defendant employed millwrights from Carpenters' Union Local 102 to install baggage conveyors in terminal 2 from about mid-2009 until at April 15, 2011. Id.

Defendant hired Complainant Anderson as a foreman in July 2009. Ex. A, Deposition of Charles R. Anderson ("Anderson Dep.") 49-50, ECF No. 84-1. In September 2009, Defendant hired Complainant Pitschner, Anderson's son, as a journeyman. Deposition of Charles Richard Pitschner II (Pitschner Dep.), 27, 58, ECF No. 84-2. Anderson's duties included managing workers, coordinating with other contractors, buying tools and safety equipment, inspecting equipment, and at times overseeing the entire project. Anderson Dep. 71; Second Declaration of Charles R. Anderson ("Anderson 2nd Decl.") ¶ 15, ECF No. 87-9. Pitschner's job duties included installing the conveyor as well as filling out daily forklift inspection sheets. Pitschner Dep. 58, 257. Both Anderson and Pitschner believed that they, like all employees on the job site, also had a duty to raise safety concerns. Anderson Dep. 131, 231; Pitschner Dep. 214.

David Slotta served as Siemens' superintendent on the project. Deposition of David Slotta ("Slotta Dep.") 15, ECF No. 84-2. His duties included overseeing the job, scheduling, handling logistics, and ordering supplies. Id . Kelly Scott, Mr. Slotta's superior and an employee of Siemens, was responsible for managing the project. Id. at 29-30, 35. For the most part, Mr. Scott was not on site at the project. Id. at 109-110.

Turner, the general contractor, employed its own personnel on site including site Superintendent Don Peterson and Safety Manager Joel Kellogg. Id. at 17-18.

1. The Safety Complaints to Siemens

Throughout their employment with Siemens, Complainants reported numerous safety concerns to Slotta. Anderson Dep. 216-219; Pitschner Dep. 266, 271-272. Anderson testified that the great majority of the complaints he made to Slotta were met with approval, and that raising safety concerns was part of Anderson's job. Anderson Dep. 218-219, 231. However, Anderson asserts that when he objected to Slotta's practice of giving his crew licenses to operate forklifts without providing the requisite training, Slotta disregarded his concerns, at one point telling him to "shut up about it." Anderson Dep. 152-153, 160. Pitschner likewise objected to this practice. Pitschner Dep. 171-172, 256, 266.

2. The "Near Misses" and Complaints to Turner

In early February, Anderson was informed of two "near misses" on the job site - incidents in which individuals were put at risk, but not actually injured. Anderson Dep. 190, 271. On February 10, two days after the near misses, Anderson was issued a written warning for conduct unrelated to the safety incidents. Anderson Dep. 271; Carney Decl. Ex. G.

The next day, on February 11, Anderson approached Turner's safety manager, Joe Kellogg, told him that Siemens had issued forklift licenses to its workers without giving them training, and asked whether Slotta had told him about the near misses. Slotta Dep. 58; Anderson Dep. 159, 161-162. In response, Anderson claims Kellogg "blew up, " saying that he was "tired of all the bullshit" and planned on putting "an end to the drama." Anderson Dep. 162. Kellogg, in turn, told Slotta what Anderson had reported to him. Su Opp. at 2; Slotta Dep. at 58.[2]

On February 16, Slotta called a meeting of all of the millwrights. Slotta Dep. 126. At that meeting Slotta informed all of the millwrights that he was removing all discipline that they had previously received, and that they were starting over with a clean slate. Slotta Dep. 93-94. During the same meeting Slotta announced that Paul Batsel would be responsible for all paperwork, a task previously assigned to Anderson. Anderson Decl. ¶ 5. Slotta also prohibited anyone from entering either Siemens' or Turner's trailer. Id . ¶ 6. Prior to this meeting, Anderson had regularly entered the trailer as part of his duties as a senior foreman. Id . At the close of the meeting, Slotta told Anderson that he would no longer be attending foremen's meetings. Id . ¶ 7.

On March 12, 2010, less than a month after the meeting, Siemens laid off four workers, including Anderson and Pitschner. Anderson Decl. ¶ 7.

C. Procedural History

Following their discharge, the Union filed grievances on behalf of Complainants seeking reinstatement. Anderson Decl., Ex. A, B. This ultimately led to an arbitration between the Union and Defendant. J. Smith Decl. ¶ 7-8.

After two days of proceedings, the arbitrator, Gerald McKay, rendered a decision. Id . ¶¶ 8-9. The decision awarded Complainants one hundred hours of wages and fringe benefits. Decision and Award of the Arbitrator at 4. The decision also stated that "the decision to lay Mr. Anderson and his son off were done specifically by Mr. Slotta in retaliation for Mr. Anderson's actions taken against him." Id.

On June 12, 2012, Plaintiff, California Labor Commissioner Julie Su, brought this action in San Francisco Superior Court on behalf of Pitschner and Anderson under California Labor Code Section 6310 seeking back wages and injunctive relief. Su Complaint, ECF No. 1. Defendant then removed the case to this Court pursuant to 28 U.S.C. § 1332. Notice of Removal, ECF No. 1. Anderson filed a petition to intervene, and the Court granted that petition. Order Granting Motion to Intervene, ECF No. 57.

Both parties have moved for summary judgment, which motions are now before the Court. Defendant's Motion for Summary Judgment or in the Alternative Partial Summary Judgment ("Def. MSJ"), ECF No. 83; Plaintiff's Motion for Partial Summary Judgment or in the Alternative for an Order Treating Specified Facts as Established ("Su MSJ"), ECF No. 85.

D. Legal Standard

Summary judgment is proper when a "movant shows that 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). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by" citing to depositions, documents, affidavits, or other materials. Fed.R.Civ.P. 56(c)(1)(A). A party also may show that such materials "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)(B). An issue is "genuine" only if there is sufficient evidence for a reasonable fact-finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. Id. at 248. "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio , 125 F.3d 732, 735 (9th Cir. 1997).

Where the party moving for summary judgment would bear the burden of proof at trial, that party bears the initial burden of producing evidence that would entitle it to a directed verdict if uncontroverted at trial. See C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc. , 213 F.3d 474, 480 (9th Cir. 2000). Where the party moving for summary judgment would not bear the burden of proof at trial, that party bears the initial burden of either producing evidence that negates an essential element of the non-moving party's claim, or showing that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. If the moving party satisfies its initial burden of production, then the non-moving party must produce admissible evidence to show that a genuine issue of material fact exists. See Nissan Fire & Marine Ins. Co. v. Fritz Cos. , 210 F.3d 1099, 1102-03 (9th Cir. 2000). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan , 91 F.3d 1275, 1279 (9th Cir. 1996). Indeed, it is not the duty of the district court to "to scour the record in search of a genuine issue of triable fact." Id . "A mere scintilla of evidence will not be sufficient to defeat a properly supported motion for summary judgment; rather, the nonmoving party must introduce some significant probative evidence tending to support the complaint." Summers v. Teichert & Son, Inc. , 127 F.3d 1150, 1152 (9th Cir. 1997) (citation and internal quotation marks omitted). If the non-moving party fails to make this showing, the moving party is entitled to summary judgment. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986).

E. Jurisdiction

The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332.


Defendant moves for summary judgment on the grounds that Plaintiff cannot show that Complainants engaged in protected activity that resulted in their termination, and therefore she cannot carry her burden of establishing a prima facie case of a Section 6310 violation. Defendant's Motion for Summary Judgment ("Su MSJ"), ECF No. 83 at 13; see Yankowitz , 36 Cal.4th at 1042. Moreover, Defendant contends that Plaintiff's damages are limited as a matter of law because (1) Plaintiff cannot recover health and welfare benefits, and (2) Plaintiff cannot recover damages beyond the date of completion of the SFO project. Id. at 18, 19, 22.

Plaintiff opposes Defendant's motion, contending that Anderson and Pitschner's safety complaints qualify as protected activity under Section 6310. ECF No. 87. Plaintiff further contends that employer contributions toward health and welfare benefits are properly included in a damage award, and that recovery beyond the project completion date is proper because Siemens' contract also included post-construction operation and maintenance work. Id. at 19, 23.

The Court first addresses Defendant's argument that Plaintiff cannot show that Complainants were terminated for protected activity, and second addresses Defendant's argument that the Court should limit Plaintiff's potential damages.

A. Protected Activity under Section 6310

Section 6310 prohibits an employer from terminating or otherwise discriminating against an employee because the employee has made "any oral or written complaint to... his or her employer" about unsafe working conditions or unsafe work practices. Cal. Lab.Code § 6310(a).

Courts considering 6310 claims have applied the three-part burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Yankowitz v. L'Oreal USA, Inc. , 36 Cal.4th 1028, 1042 (2005). Under that test, an employee must first establish a prima facie case for retaliation. Yankowitz , 36 Cal.4th at 1042. Once the employee has established a prima facie case, the employer must offer a legitimate, non-retaliatory reason for the adverse employment action to rebut the employee's claim. Id . If the employer does so, the burden shifts back to the employee to prove retaliatory motive. Id.

To establish a prima facie employment retaliation case the Plaintiff must show that: (1) the employee engaged in a "protected activity"; (2) the employer subjected the employee to adverse employment action; and (3) a causal link existed between the protected activity and the adverse action. Yankowitz , 36 Cal.4th at 1042.

Plaintiff raises two categories of safety complaints, which she contends resulted in Complainants' termination. Su MSJ at 2. The first category is complaints made directly to Defendant Siemens, and the second is complaints made to Turner, the general contractor. Id . The Court addresses these allegations in reverse order.

1. Complaints to Turner

In order to state a claim under Section 6310, a Plaintiff must first show that he engaged in a protected activity. See Id . Specifically, a plaintiff must show that he was discharged or discriminated against because he "[m]ade any oral or written complaint to... his or her employer." Cal. Labor Code § 6310(a)(1).

Defendant sets forth three reasons why Anderson's complaint to Turner was not a protected activity, and therefore does not establish a prima facie case. First, Defendant contends that Anderson's discussion with Turner was not a "complaint, " as that word has been construed by courts interpreting Section 6310. Def. MSJ at 14. Second, Defendant argues that Anderson's complaints were made in the course of his employment, and for that reason were not a protected activity under Section 6310. Def. MSJ at 13-14. Finally, Defendant contends that the Complainants did not make their Complaints to their employer, as required to state a claim under Section 6310. Def. MSJ at 15.

Plaintiff argues that (1) Anderson's complaint was protected regardless of the language he used to make the complaint; (2) under California law safety complaints made in the scope of employment are protected, and, 3) Turner is a "controlling employer" and is therefore an employer for the purpose of Section 6310, and further, because Anderson's complaint was conveyed to Siemens, "[i]t can thus be said that Anderson made the complaints to Defendant, though indirectly."

a. Wording of the Complaint

Defendant notes that when Anderson was asked in deposition about his safety complaint to Turner, he insisted that he had not complained to Turner, but merely asked whether they knew about the safety issues. See Anderson dep. 157 ("Q....[Y]ou testified that you went and reported these near misses; correct? A. I didn't report; I asked a question"); id. at 160 ("Q.... [T]he impetus to reporting them was these two near misses; correct?... A.... I didn't report them; I went and asked a question... of whether or not Dave Slotta had reported them."). Defendant argues ...

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