United States District Court, E.D. California
July 8, 2014
JAMES MILLER, Plaintiff,
AMERIGAS PARTNERS, L.P., Defendant.
KIMBERLY J. MUELLER, District Judge.
On March 19, 2014, this court granted the motion for summary judgment filed by defendant AmeriGas Partners. ECF No. 45. On April 16, 2014, plaintiff Miller filed a motion for reconsideration of this order. ECF No. 49. The court ordered it submitted without argument. As discussed below, the court denies the motion for reconsideration.
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. It filed its motion for summary judgment on December 20, 2013, arguing that Miller had not established a nexus between the public policy at stake and his termination. Mot. for Summ. J., ECF No. 21 at 13. In opposition, plaintiff contended he was terminated because he refused to sign the illegal confidentiality agreement and that "[d]efendant's suggestion that it terminated Plaintiff based exclusively on information gleaned from an impartial interview process is a farce and clear evidence of pretext." Opp'n, ECF No. 34 at 6.
On March 19, 2014, the court granted defendant's motion, evaluating the claim by applying the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). ECF No. 45. On April 16, 2014 Plaintiff argues that McDonnell Douglas does not apply to non-FEHA based claims of wrongful discharge in violation of public policy. Mot. for Recons., ECF No. 49.
II. STANDARDS FOR A MOTION FOR RECONSIDERATION
Under Rule 59(e), a party may move to "alter or amend a judgment" within twenty-eight days of the entry of the judgment. Although the Rule does not list specific grounds for such a motion, the Ninth Circuit has said that a Rule 59(e) motion may be granted if "(1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law." Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). This court has "wide discretion" when considering such a motion. Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003). The rule provides "an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.'" Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting James Wm. Moore et al., Moore's Federal Practice § 59.30 (3d ed. 2000)). A party filing a motion for reconsideration should not ask the court "to rethink what the Court has already thought through" simply because of a disagreement with the result of that thought process. Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). A motion to amend the judgment "is a proper vehicle for seeking reconsideration of a summary judgment ruling." Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th Cir. 1988) (per curiam).
As explained below, plaintiff has not shown the court committed clear error in its analysis of his wrongful discharge claim nor that any interpretation of the evidence had an impact on the outcome of the case.
A. Wrongful Discharge And Burden Shifting
Plaintiff argues that the court committed clear error in applying the McDonnell Douglas framework to evaluate the motion. He acknowledges that courts have indeed applied this analytic tool to wrongful discharge claims, but says it is limited to wrongful termination claims based on California Government Code section 12940, which proscribes retaliation against an employee who complains about practices forbidden under California's Fair Employment and Housing Act (FEHA). CAL. GOV'T CODE §§ 12900, et seq. He argues that the framework is not applied to claims of wrongful discharge in violation of public policy, so-called Tameny  claims.
In Loggins v. Kaiser Permanente International, the California Court of Appeal said:
When a plaintiff alleges retaliatory employment termination either as a claim under the FEHA or as a claim for wrongful termination in violation of public policy, and the defendant seeks summary judgment, California follows the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 to determine whether there are triable issues of fact for resolution by a jury.
151 Cal.App.4th 1102, 1108-09 (2007). Plaintiff acknowledges this statement, but says because the wrongful discharge claim in Loggins was based on an underlying FEHA violation, the court's application of McDonnell Douglas is also limited to FEHA-based claims. ECF No. 49 at 5. Plaintiff cites cases he claims show that courts apply the McDonnell Douglas framework to FEHA-based Tameny claims, but not to Tameny claims based on other policies.
First, plaintiff relies on two unpublished cases, Black v. Baxter Healthcare Corporation, 129 F.3d 124 (Table) (9th Cir. 1997) (unpublished) and Waddy v. Sears, Roebuck & Co., 97 F.3d 1463 (Table) (9th Cir. 1996) (unpublished); as these cases were decided before January 1, 2007, they are not citable. FED. R. APP. P. 32.1(a)(ii).
Plaintiff then cites to Anthoine v. North Central Counties Consortium, 571 F.Supp.2d 1173, 1192-93 (E.D. Cal. 2008), aff'd in part, rev'd in part, 605 F.3d 740 (9th Cir 2010). In that case, the court did not apply any sort of analytical framework to a wrongful discharge claim based on California's free speech and Workforce Investment Act (WIA) because plaintiff had not established his speech was constitutionally protected and had not identified the provisions of the WIA upon which his claim was based. Plaintiff suggests that in Gutierrez v. Kaiser Foundation Hospital, the court applied McDonnell Douglas to the FEHA claims, but not to a Tameny claim based on the California Constitution's prohibition against discrimination. In Gutierrez, however, the court did not undertake any analysis of the Tameny claims because it found plaintiff had not shown his underlying discrimination claims had any merit. No. C 11-3428 CW, 2012 WL 5372607, at *9 (N.D. Cal. Oct. 30, 2012).
Plaintiff characterizes Villasenor v. Sears, Roebuck & Co. as applying McDonnell Douglas to a FEHA retaliation claim, but not to a claim of retaliation stemming from the plaintiff's complaints about meal and rest breaks. In that case, however, the court found the plaintiff had not shown a causal connection between his complaints and his termination and did not discuss whether McDonnell Douglas would apply to the latter claim. No. CV 09-9147 (FMOx), 2011 WL 165374, at *10 (C.D. Cal. Jan. 18, 2011). Plaintiff also relies on Markey v. Kudelski S.A, which used the burden-shifting framework to evaluate the FEHA discrimination claims, but found that plaintiff had not shown his termination violated any public policy. No. 06-CV-1300 W (RBB), 2008 WL 65401, at *12 (S.D. Cal. Jan. 3, 2008); see also Yocum v. Rockwell, No. 3:12-cv-0568-GPC-MDD, 2013 WL 1828573, at *6-7 (granting defendant's motion for summary judgment because plaintiff had not shown a nexus between protected conduct and discharge and stating that, therefore, it need not address defendant's claim the termination was based on legitimate reasons). Finally, plaintiff cites to Walker v. Boeing Corp. as a case that "properly evaluat[ed]" a motion for summary judgment in a non-FEHA wrongful discharge by not relying on McDonnell Douglas to evaluate the claim. He is correct that the court in Walker does not mention McDonnell Douglas, but overlooks the fact that the court said that even if the plaintiff had shown his discharge was retaliatory, he had failed to rebut the defendant's showing of a non-retaliatory reason for the discharge and had produced no evidence of pretext. 218 F.Supp.2d 1177, 1188-89 (C.D. Cal. 2002). This court may not have cited to the case from a sister district previously, but it applied the analysis nevertheless.
The only one of plaintiff's authorities that denies a motion for summary judgment of a non-FEHA Tameny claim, based only on plaintiff's demonstration of a nexus between protected activity and discharge, is Stoval v. Basin Street Properties, 3:12-cv-04661 JST, 2013 WL 6002758 (N.D. Cal. Nov. 12, 2013). In that case, the court evaluated only whether the plaintiff had established a nexus between his report of a statutory violation and his termination, and did not address any of the other steps in the McDonnell Douglas analysis. Id. at *5-6. The court did not say, however, that application of the analytic framework was improper.
Plaintiff acknowledges that some courts have applied the burden-shifting method to non-FEHA-based wrongful discharge cases, including the Ninth Circuit in an unpublished case, but argues those cases were wrongly decided. See, e.g., Mitri v. Walgreen Co, Inc., No. 1:10-cv-538 AWI SKO, 2011 WL 2181387 (E.D. Cal. Jun. 3, 2011); Weingand v. Harland Fin. Solutions, No. C-11-3109, 2012 WL 3537035, at *8 (N.D. Cal. Aug. 14, 2012) (dicta); Hess v. Madera Honda Suzuki, No. 1:10-cv-01821 AWI BAM, 2012 WL 4052002, at *11 (E.D. Cal. Sept. 14, 2012); see also Steffens v. Regis Grp. PLC, 485 F.Appx. 187, at *1 (9th Cir. Jun. 26, 2012) (unpublished); Minnard v. Rotech Healthcare, Inc., No. 2:06-cv-1460-GEB GGH, 2008 WL 2169716, at *8 (E.D. Cal. May 22, 2008). Plaintiff claims these cases are wrongly decided because they do not recognize the difference between the elements of a retaliation claim and a wrongful discharge claim.
Wrongful termination cases typically arise when an employer retaliates against an employee for refusing to violate a statute, performing a statutory obligation, exercising a statutory right, or reporting an alleged violation of a statute of public importance. However, ... an action for tortious discharge is not strictly limited to these situations but will lie whenever the basis of the discharge contravenes a public policy.
Gould v. Md. Sound Indus., 31 Cal.App.4th 1137, 1147 (1995) (citation and internal quotations omitted); Blom v. N.G.K. Spark Plugs (U.S.A.), Inc., 3 Cal.App.4th 382, 389 (1992) (" Tameny and its progeny confirm, implicitly and explicitly, that discharge of an employee for resisting employer violations of laws that secure important public policies contravenes those policies, and gives rise to a common law action in tort."). Because a Tameny claim is, in most instances, a claim that the employer retaliated in response to the employee's assertion of some public interest, application of McDonnell Douglas to such a claim makes sense, just as it made sense to apply the framework to a FEHA-based Tameny claim in Loggins. The nexus between the protected activity (plaintiff's refusal to sign the confidentiality agreement in this case) and the employment decision (defendant's refusal to hire plaintiff for the combined District Manager position and his ultimate discharge) is relevant, as plaintiff argues, but it is only part of plaintiff's prima facie case. Chen v. Cnty. of Orange, 96 Cal.App.4th 926, 949 (2002); Minnard, 2008 WL 2169716, at *8. Had plaintiff not made a sufficient showing of nexus, the court never would have reached the burden-shifting portion of its analysis. See Yocum v. Rockwell, No. 3:12-cv-0568-GPC-MDD, 2013 WL 1828573, at *6-7 (S.D. Cal. Apr. 30, 2013) (saying it did not need to consider employer's proffered legitimate reason for discharge when it did not find a nexus between protected activity and discharge); Y.K.A Indus., Inc. v. Redev. Agency of the City of San Jose, 174 Cal.App.4th 339, 340 (2009) (saying a party who makes a prima facie showing is not entitled to a judgment as a matter of law but is entitled to consideration by the trier of fact). In this case, the court found plaintiff's evidence of causal connection was sufficient to establish his prima facie case and so proceeded to the next steps. That a few courts have truncated the analysis does not demonstrate clear error here.
Plaintiff also argues application of the McDonnell Douglas framework creates a manifest injustice because he was surprised by the court's analysis and so was not prepared to address it. ECF No. 49 at 3. Even though neither party referred directly to the doctrine, plaintiff used its language in his opposition, attacking defendant's showing of a legitimate reason for the termination and citing to evidence he believed showed the reason to be pretextual. ECF No. 6, 13. Moreover, as defendant observes, during argument on the motion, the defendant's counsel addressed plaintiff's prima facie case and its reasons for the discharge, prompting the court to ask plaintiff's counsel about his evidence of pretext, assuming the burden had shifted back to him. Hrg. Tr., ECF No. 50, at 8:8-16. Plaintiff has not shown he was detrimentally surprised by the analysis.
B. Evidentiary Issues
Plaintiff first makes the somewhat puzzling claim that the court overlooked the confidentiality agreement in its analysis. Citing to D'sa v. Playhut, Inc., the court recognized that plaintiff's refusal to sign the confidentiality agreement, which is arguably illegal under California law, was the basis of plaintiff's Tameny claim. ECF No. 45 at 9 (citing to 85 Cal.App.4th 927 (2001)).
Plaintiff next argues the court misinterpreted Richard Martinelli's email to Shirley Kelley reporting a conversation he had with plaintiff, in which Martinelli said he told plaintiff that the final decision about the District Manager position was "in each Area Director [ sic ] hands along with the interview process results." ECF No. 31 at 63. Plaintiff challenges the court's interpretation, saying the e-mail is more reasonably read to mean that both the final decision and the results of the interview process were controlled by the Area Director, rather than that the final hiring decision was based on both the Area Director's decision coupled with the results of the interview process. Accepting plaintiff's reading does not defeat summary judgment. The inference that Area Director Lisa Thomas alone made the hiring decision supports plaintiff's showing of the nexus between his refusal to sign the confidentiality agreement and his termination, as Thomas was aware of plaintiff's refusal. As the court previously found plaintiff had shown a sufficient nexus to establish his prima facie case, accepting plaintiff's interpretation of the evidence does not change the ultimate result.
This reasoning addresses plaintiff's claim that the court misinterpreted the snippet of Thomas's deposition testimony about her control over the hiring process. During questioning about the candidates' safety record, Thomas said, "[a]nd 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. Once again, even assuming this means Thomas had total control over the hiring process, it bolsters plaintiff's prima facie case. Accepting plaintiff's interpretation of the statement, despite its context, does not change the ultimate result.
IT IS THEREFORE ORDERED that plaintiff's motion for reconsideration, ECF No. 49, is denied.