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Weinstein v. HBE Corp.

United States District Court, Central District of California

November 3, 2014


Attorneys for Plaintiffs: Andrew Wilson, Michael Straus.

Attorneys for Defendants: Lara De Leon, Mark Lovell.





On March 14, 2013, plaintiff Jeffrey Weinstein filed this action against defendant HBE, Inc. (" HBE") in Santa Barbara County Superior Court. Dkt. 1. HBE was served with plaintiff's first amended complaint (" FAC") on June 4, 2013, and timely removed the action to this Court on the basis of diversity jurisdiction on June 26, 2013. Id. Plaintiff's FAC asserts the following claims: (1) wrongful termination in violation of public policy; (2) violation of Labor Code § 1102.5; [1] and (3) violation of Labor Code Private Attorney General Act of 2004, § 2698, et seq . (" PAGA"). See Compl. Plaintiff seeks to recover civil penalties, compensatory damages, and punitive damages. Id. In brief, the FAC alleges that HBE terminated plaintiff's employment in retaliation for disclosing information to the California Office of Statewide Health Planning and Development (" OSHPD") regarding the alleged impersonation of an OSHPD officer by an HBE employee. Id.

HBE filed a motion for summary judgment or, in the alternative, partial summary judgment on September 29, 2014. Dkt. 20. Plaintiff opposed the motion on October 14, 2014, dkt. 21, and HBE replied on October 20, 2014, dkt. 22.[2] The Court held a hearing on November 3, 2014. Having carefully considered the parties' arguments, the Court finds and concludes as follows.


Except where expressly noted, the following facts are not in dispute. Plaintiff Weinstein is a licensed architect in the State of California. Weinstein Decl. ¶ 3. Defendant HBE is a privately held company that constructs hospital facilities throughout the country. Id. ¶ 5-6. In April 2012, HBE hired plaintiff to serve as a Contract Administrator and assigned him to work on the Goleta Valley Cottage Hospital Project (" the Hospital"). Defendant's Statement of Uncontroverted Facts (" DSUF") ¶ 1; Plaintiff's Response to DSUF (" PRDSFU") ¶ 1.

As Contract Administrator, plaintiff was responsible for, among other things, ensuring that HBE's construction contract with the Hospital was administered properly and acquiring the necessary project approvals from the California Office of State Hospital Planning and Development (" OSHPD"), the government entity tasked with monitoring the construction and renovation of California hospitals. DSUF ¶ 2; PRDSFU ¶ 2. Plaintiff's direct supervisor at HBE was Steven Bilsland, Vice President of Contract Administration for Hospital Designer's Inc., a subsidiary of HBE. Bilsland Decl. ¶ 1.

In July 2012, HBE President Fred Kummer (" President Kummer") received a letter from the Hospital's owner expressing dissatisfaction with Weinstein's job performance. DSUF ¶ 8; Bilsland Decl. ¶ 7, Ex. A.[3] Soon thereafter, Kummer met with Weinstein in person to discuss the letter. DSUF ¶ 9; PRDSFU ¶ 9. According to plaintiff, Kummer ultimately commended plaintiff for his work, and told him not to be concerned about the letter. Weinstein Decl. ¶ 9. According to Bilsland, he continued to receive complaints from both HBE and Hospital employees regarding plaintiff's deficient job performance. Bilsland Decl. ¶ ¶ 6, 7.

On August 28, 2012, a meeting took place at the Hospital construction site with Weinstein, HBE project superintendent Ken Murray, Inspector of Record (" IOR") William Justice, and OSHPD Fire and Life Safety Officer Suzanne Sweet (" Officer Sweet") in attendance. DSUF ¶ 14; PRDSFU ¶ 14. During that meeting, Sweet and Weinstein disagreed regarding what specific code section governed the width of a particular hallway. Id. Soon thereafter, Bilsland was informed that Weinstein had allegedly been " belligerent" towards and " argumentative" with Officer Sweet during the August 28, 2012 meeting. DSUF ¶ 15; PRDSFU ¶ 15.

On August 29, 2012, concerned that a rift may have been created in HBE's relationship with OSHPD, Bilsland called Weinstein to discuss the complaint he received regarding Weinstein's interaction with Officer Sweet. DSUF ¶ 16; PRDSFU ¶ 16. Bilsland expressed his disapproval of Weinstein's alleged conduct, and reminded Weinstein of the importance of maintaining a good relationship between HBE and OSHPD. Id. According to Weinstein, during this conversation Bilsland told him that Officer Sweet herself had contacted Bilsland to complain about Weinstein's conduct. Weinstein Decl. ¶ 15; Pl. Depo. 42:23-43:14. Bilsland subsequently informed President Kummer of Weinstein's alleged conduct, and Kummer subsequently contacted Weinstein to impress upon him the importance of maintaining a good relationship with OSHPD. DSUF ¶ 17; PRDSFU ¶ 17. Plaintiff contends that Kummer seemed " privately pleased" that plaintiff had been assertive with Officer Sweet. Weinstein Decl. ¶ 16; Pl. Depo. 154:2-14.

About one week after being counseled by Kummer, plaintiff asked superintendent Murray and Lavar Pitts, another employee, whether they felt that plaintiff had acted inappropriately towards Officer Sweet during the August 28, 2012 meeting. DSUF ¶ 18; PRDSFU ¶ 18. Murray told plaintiff that he believed plaintiff had been aggressive with Officer Sweet. Id. Weinstein then contacted IOR Justice, and requested that he ask Officer Sweet whether she felt Weinstein had been argumentative and belligerent towards her during the meeting. DSUF ¶ 19; PRDSFU ¶ 19. On or about September 25, 2012, IOR Justice informed Weinstein that Officer Sweet told him she did not believe Weinstein had been argumentative or belligerent during the August 28, 2014 meeting, and that she had not contacted Bilsland to complain about Weinstein's conduct. Id.

On September 28, 2012, plaintiff emailed Officer Sweet apologizing for having believed that she complained about him to Bilsland. DSUF ¶ 20; PRDSFU ¶ 20. In the email, plaintiff asked Officer Sweet to confirm in writing that she had not made this complaint, stating " [i]t is important to me (and my future with HBE) that Steve Bilsland and Fred Kummer know the truth." de Leon Decl., Ex. C (plaintiff's September 28, 2012 email). HBE did not receive a copy of Weinstein's email until after his termination, when Weinstein emailed it to Kummer in an attempt to regain employment with the company. DSUF ¶ 21; PRDSFU ¶ 21.

On October 2, 2012, Brian Coppock, Regional Compliance Officer for OSHPD (" RCO Coppock"), sent Weinstein an email to inform him that he had also received Weinstein's September 28, 2012 email to Officer Sweet. DSUF ¶ 22; PRDSFU ¶ 22. In pertinent part, RCO Coppock's email stated:

There appears to have been a misrepresentation of the facts in this matter that now involves the misrepresentation and attributing of actions to Suzanne Sweet, FLSO II, and OSHPD FDD that will require my further investigation. I am requesting your assistance in placing me in contact with your direct supervisor Steve Bilsland to review the facts of this reported complaint.
* * *
It is regrettable that you have labored under the misconception that Suzanne Sweet, FLSO II, had made a complaint about you to HBE Corporation.
* * *
The reported misrepresented complaint attributed to Suzanne Sweet, OSHPD FDD FLSO II, however, is now problematic for other reasons and requires addition [sic] investigation by FDD. I am concerned that someone has falsely represented them self [sic] as an OSHPD FDD staff person and made this complaint. Additionally, it may be that another OSHPD FDD staff person made this ...

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